Strike 3 Holdings v. John Doe subscriber assigned IP address 107.213.155.207

Background

Strike 3 Holdings, LLC alleged that the unidentified defendant associated with IP address 107.213.155.207 used BitTorrent to download and distribute 139 of Strike 3’s copyrighted adult motion pictures. Strike 3 alleged that its monitoring system made direct connections with the IP address, downloaded files from the defendant, and matched those files using the BitTorrent information hash. Strike 3 said it could not identify the individual associated with the IP address through its own efforts.

Strike 3 filed one copyright-infringement claim and sought permission to serve a Federal Rule of Civil Procedure 45 subpoena on nonparty internet service provider AT&T U-verse. The proposed subpoena was limited to the name and addresses of the individual or individuals associated with the IP address.

Analysis

The court applied the good-cause standard generally used in the Ninth Circuit for expedited discovery before the parties’ required discovery conference. It considered four factors: whether the unidentified defendant was described specifically enough to be a real person who could be sued in federal court; whether the plaintiff had taken steps to locate and identify the defendant; whether the complaint could withstand a motion to dismiss; and whether the requested discovery was reasonably likely to produce information allowing service of the defendant.

The court found that Strike 3 satisfied all four factors. It held that the allegations sufficiently identified a person who downloaded and distributed the movies and that tracing the downloads to the Northern District of California supported the court’s jurisdiction over the defendant and the federal copyright claim. The court also found that Strike 3 had sufficiently alleged ownership of the copyrights and unauthorized copying and distribution, which it described as a preliminary copyright-infringement claim that could withstand dismissal. Finally, the court found that AT&T U-verse could identify the person through the IP address.

Protective Order and Ruling

Because the internet subscriber might not be the person who allegedly infringed the copyrights, and because the allegations involved sensitive personal matters, the court issued a limited protective order. Information provided to Strike 3 by the internet service provider had to remain confidential until the unidentified defendant had an opportunity to ask to proceed anonymously and the court ruled on that request. The court also addressed the possible sealing of papers containing identifying information.

The court granted Strike 3’s ex parte motion for expedited discovery. Strike 3 could immediately serve AT&T U-verse with a Rule 45 subpoena seeking the defendant’s true name and addresses. AT&T U-verse had to notify the defendant within 30 days after service. The defendant then had 30 days after receiving notice to challenge, quash, or modify the subpoena; if no timely challenge was filed, the internet service provider would have 10 days to produce responsive information. The information could be used only to protect Strike 3’s rights described in its complaint.