Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 75.11.11.138

Background

Strike 3 Holdings, LLC alleged that an unidentified defendant using AT&T Internet Services’ IP address 75.11.11.138 downloaded and distributed Strike 3’s copyrighted adult motion pictures through BitTorrent. Strike 3 said its detection system established direct connections with the IP address, downloaded files containing copies of its movies, and recorded infringement involving 93 movies over an extended period. It alleged one claim for copyright infringement under the Copyright Act.

Strike 3 asked for permission to serve AT&T, a non-party internet-service provider, with a subpoena under Federal Rule of Civil Procedure 45. The requested subpoena was limited to the name and address of the individual or individuals associated with the IP address.

Legal standard

The court explained that Federal Rule of Civil Procedure 26(d) allows early discovery before the parties’ usual discovery-planning conference when appropriate. Courts generally require “good cause,” meaning that the need for expedited discovery outweighs potential prejudice to the responding party.

For discovery intended to identify an unnamed defendant, the court considered whether Strike 3: (1) identified the Doe defendant specifically enough to show that the person was real and could be sued in federal court; (2) described its efforts to locate and identify the person; (3) showed that its claim could withstand a motion to dismiss; and (4) showed that the discovery was reasonably likely to produce information allowing service of process.

Analysis

The court found that Strike 3 satisfied all four requirements. First, the allegations that the Doe defendant directed a BitTorrent client to download and distribute the movies were specific enough for the court to determine that the defendant was an identifiable adult who could likely be the primary subscriber or someone residing with and known to the subscriber. The alleged downloads had been traced to the Northern District of California, which the court said supported jurisdiction over the defendant and the federal copyright claim.

Second, Strike 3 had described its efforts to identify the defendant and explained that the IP address alone was insufficient. Third, the court found that Strike 3 had adequately alleged a preliminary copyright-infringement claim because it alleged ownership of the movies and alleged that the defendant copied and distributed them without permission. Fourth, the court found that AT&T could reasonably be expected to identify the person associated with the IP address.

Protective order

The court issued a limited protective order because the subscriber might be an innocent third party rather than the person who infringed Strike 3’s copyrights. The court also recognized that allegations involving the downloading of adult movies could concern sensitive and highly personal matters.

Information that AT&T provides to Strike 3 must not be publicly disclosed until the Doe defendant has had an opportunity to ask to proceed anonymously and the court has ruled on that request. If the Doe defendant does not file such a request within 30 days after the information is disclosed to Strike 3’s counsel, the limited protective order will expire. The court also directed that identifying information included in an anonymity request be filed under seal.

Disposition

The court granted Strike 3’s application for expedited discovery. Strike 3 may immediately serve AT&T with a Rule 45 subpoena seeking the Doe defendant’s true name and addresses, and must attach the court’s order. AT&T must notify the Doe defendant within 30 days after service. The Doe defendant then has 30 days after receiving notice to challenge the subpoena, including by asking the issuing court to cancel or modify it. If no timely challenge is filed, AT&T has 10 days to produce the responsive information.

The subpoenaed entity must preserve the information while any timely challenge is pending. It must confer with Strike 3 before charging production costs and may use any information disclosed under the subpoena only to protect Strike 3’s rights described in its complaint. Judge Beeler did not decide whether the Doe defendant actually infringed the copyrights; this order concerned only early discovery and related confidentiality protections.