Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 108.93.40.154
- Edward Chen
- 3:20-cv-08356
- U.S. District Court · Northern District of California
- 6
In Strike 3 Holdings v. John Doe, Judge Chen allowed early discovery to identify the anonymous subscriber allegedly linked to copyright infringement.
Strike 3 Holdings, LLC may obtain the Doe defendant’s name and address from AT&T through an early Rule 45 subpoena. The Doe defendant may challenge the subpoena or request permission to proceed anonymously, and AT&T must follow the notice and production deadlines in the order.
What happened
Strike 3 Holdings, LLC sued an unnamed subscriber identified by IP address 108.93.40.154, alleging that the subscriber downloaded and distributed its copyrighted adult motion pictures. Strike 3 asked to subpoena the subscriber’s internet provider, AT&T U-verse, before the parties’ required discovery conference so it could learn the subscriber’s identity.
The court found good cause for early discovery because Strike 3 had identified a likely real person, described its efforts to trace the IP address, stated a claim that could proceed, and showed that AT&T likely had information needed for service. The court did not decide whether the subscriber actually infringed the copyrights or prevent the subscriber from challenging the case.
Judge Chen granted Strike 3’s motion and allowed it to immediately serve AT&T with a subpoena for the subscriber’s name and address. The order also restricted use and public disclosure of that information, gave the subscriber 30 days to challenge the subpoena or request permission to proceed anonymously, and set deadlines for AT&T to respond.
The detailed version
- Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 108.93.40.154 · No. 3:20-cv-08356
- Edward Chen
- Dec. 14, 2020
Background
Strike 3 Holdings, LLC alleged that the Doe defendant, identified only by IP address 108.93.40.154, downloaded and distributed 376 of Strike 3’s copyrighted motion pictures through BitTorrent. Strike 3 asked for permission to serve a Federal Rule of Civil Procedure 45 subpoena on nonparty AT&T U-verse, the defendant’s internet service provider, before the parties held the conference normally required by Rule 26(f). The subpoena sought the defendant’s name and address so Strike 3 could serve the complaint.
Legal Standard
The court explained that early discovery before a Rule 26(f) conference may be allowed for good cause. Courts evaluating a request to identify an unnamed defendant examine whether the plaintiff has: (1) identified the defendant with enough specificity to show that the defendant is a real person who may be sued in federal court; (2) described its efforts to locate and identify the defendant; (3) shown that the action could withstand a motion to dismiss; and (4) shown that the requested discovery is reasonably likely to produce information permitting service.
Good Cause
The court found that Strike 3 satisfied all four requirements. First, Strike 3 alleged that the defendant used a BitTorrent client to download and distribute copyrighted works and provided evidence connecting the activity to the identified IP address. Strike 3 also used MaxMind geolocation technology to trace the IP address twice to a physical location within the Northern District of California. These facts were enough at this stage for the court to determine that the defendant was likely a real person and to find a preliminary basis for personal jurisdiction.
Second, Strike 3 described its VSN Scan system, which allegedly established direct connections with the IP address and used unique file hashes to verify that the motion pictures were downloaded and distributed through that address. Strike 3 stated that it could not determine the defendant’s name and other identifying information from the IP address alone and that only AT&T could provide the information.
Third, the court found that Strike 3 had adequately alleged a direct copyright-infringement claim. Strike 3 alleged that it owned valid copyrights and that the defendant reproduced and distributed the works without authorization. The court also found a preliminary basis for subject-matter jurisdiction, personal jurisdiction, and venue. The court emphasized, however, that allowing the subpoena did not prevent the Doe defendant from filing a motion to dismiss or prejudge such a motion.
Fourth, the court found that AT&T was reasonably likely to have information that would identify the defendant because Strike 3 had identified AT&T as the internet service provider associated with the IP address. The court also accepted Strike 3’s assertion that internet providers may retain IP-address logs for only a limited period, creating a risk that the identifying information could be lost without early discovery.
Protective Order and Disposition
The court granted a protective order to protect the Doe defendant’s privacy. It noted that the subscriber associated with an IP address may not be the person who engaged in the alleged infringement and that allegations involving the downloading of adult motion pictures are sensitive and highly personal. Strike 3 was ordered not to publicly disclose the defendant’s identifying information until further order of the court.
The court granted Strike 3’s motion and authorized it to immediately serve AT&T with a Rule 45 subpoena for the Doe defendant’s true name and address. The information could be used only to serve the defendant and prosecute the claims in the complaint. AT&T had 30 days after service to provide the Doe defendant with the subpoena and order. The Doe defendant then had 30 days to challenge the subpoena; if no challenge was filed during that period, AT&T was ordered to produce the responsive information to Strike 3 within 10 days. The Doe defendant also had 30 days after service to request permission to proceed anonymously, including by filing that request under seal.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.