Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.202.31.68

Background

Strike 3 Holdings, LLC alleged that the unidentified defendant downloaded and distributed 66 of Strike 3’s copyrighted adult motion pictures through the BitTorrent file network. The defendant was identified in the complaint only by IP address 73.202.31.68. Strike 3 asked for permission to serve a subpoena under Federal Rule of Civil Procedure 45 on Comcast, the defendant’s internet service provider, before the parties held the conference required by Rule 26(f). The subpoena sought the defendant’s true name and address.

Strike 3 said that its VXN Scan system 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. It also used geolocation technology to associate the IP address with a physical location within the Northern District of California. Strike 3 argued that only Comcast could connect the IP address to a person’s identifying information and that Comcast might delete relevant logs if discovery were delayed.

Court’s analysis

The court applied the Ninth Circuit’s “good cause” standard for allowing discovery before the Rule 26(f) conference. It considered whether Strike 3: (1) identified a defendant specifically enough to show that the defendant was a real person who could be sued in federal court; (2) described its efforts to identify the defendant; (3) showed that its claim could withstand a motion to dismiss; and (4) showed that the subpoena was reasonably likely to produce information that would allow service of process.

The court found that Strike 3 satisfied all four requirements. It concluded that the alleged BitTorrent activity required action by a real person, that Strike 3 had made a good-faith effort to identify the defendant, and that the complaint sufficiently alleged a preliminary case for direct copyright infringement. The court also found federal subject-matter jurisdiction, personal jurisdiction on the preliminary showing presented, and proper venue. Finally, it found that Comcast was able to provide identifying information connected to the IP address and that the need for expedited discovery outweighed the potential prejudice to the Doe defendant.

The court emphasized that granting early discovery did not prevent the Doe defendant from filing a motion to dismiss and did not decide whether the defendant actually infringed Strike 3’s copyrights. It also warned Strike 3 that, after learning the subscriber’s name and address, it had an obligation under Rule 11 to determine whether to continue the lawsuit. The court noted that the subscriber to an IP address might not be the person who committed the alleged infringement.

Disposition and protective conditions

The court granted Strike 3’s application and ordered that it could immediately serve Comcast with the Rule 45 subpoena. The subpoena could seek only the Doe defendant’s name and address, and Strike 3 could use information produced in response only to serve the defendant and prosecute the claims in the complaint.

Comcast was ordered to serve the Doe defendant with the subpoena and the order within 30 days after service on Comcast. The Doe defendant then had 30 days after service to file motions contesting the subpoena. If that period passed without a challenge, Comcast was ordered to produce the responsive information to Strike 3 within 10 days.

The court also ordered Strike 3 not to publicly disclose the Doe defendant’s identifying information until further order. The Doe defendant could ask to proceed anonymously and could file that request under seal. The order disposed of Docket No. 8. Judge Edward Chen entered the order.