Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 174.62.80.40

Background

Strike 3 Holdings, LLC alleged that the person using Comcast IP address 174.62.80.40 downloaded and distributed Strike 3’s copyrighted adult motion pictures through BitTorrent. Strike 3 said it owned copyrights registered with the United States Copyright Office for movies distributed through its brands Blacked, Tushy, Vixen, and Blacked Raw. Using its VXN Scan system, Strike 3 said it made direct connections with the IP address, downloaded files containing copies of its movies, and used the BitTorrent information hash to confirm the files’ source. Strike 3 alleged that the IP address had been associated with infringement of 48 movies over an extended period.

Strike 3 filed one copyright-infringement claim against the unidentified defendant. Because it could not identify the individual associated with the IP address, it asked for permission to serve Comcast Cable, a non-party internet-service provider, with a subpoena under Federal Rule of Civil Procedure 45. Strike 3 said the subpoena would be limited to the name and address of the person or people associated with the IP address.

Early-Discovery Standard

Federal Rule of Civil Procedure 26(d) allows a court to permit discovery before the parties’ usual initial discovery conference. Courts generally require a showing of “good cause,” meaning that the need for early discovery outweighs potential prejudice to the responding party.

The court applied four factors for identifying an unknown defendant through early discovery: whether the plaintiff identified the Doe defendant specifically enough to show that the person could be sued in federal court; whether the plaintiff described its efforts to identify the person; whether the complaint could withstand a motion to dismiss; and whether the requested discovery was reasonably likely to produce information permitting service of process.

Analysis

The court held that Strike 3 satisfied all four factors. 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 likely an identifiable adult. The court said the person was likely the primary subscriber of the IP address or someone who lived with and was known to the subscriber. The court also noted Strike 3’s allegation that the downloads were traced to a physical address in the Northern District of California.

Second, the court found that Strike 3 had explained its efforts to identify the defendant and that the IP address alone was insufficient. Third, the court found that Strike 3 had sufficiently alleged a preliminary copyright-infringement claim. That claim required allegations that Strike 3 owned the copyrighted material and that the defendant violated at least one exclusive copyright right, such as the right to reproduce or distribute the work. The court emphasized that direct infringement does not require intent or a particular state of mind. Fourth, the court found that Comcast could likely identify the defendant through the IP address.

These findings supported early discovery only. The opinion did not determine whether the anonymous defendant was the person who infringed Strike 3’s copyrights or otherwise resolve the underlying claim.

Protective Order

The court issued a limited protective order because the internet subscriber might not be the person who committed the alleged infringement and because the allegations involved sensitive personal matters. Strike 3 may not publicly disclose information Comcast provides until the Doe defendant has an opportunity to ask to proceed anonymously and the court rules on that request. If the defendant does not file that request within 30 days after the information is disclosed to Strike 3’s counsel, the limited protection expires. Identifying information in a request to proceed anonymously may be filed under seal.

Disposition

The court granted Strike 3’s ex parte motion for expedited discovery. Strike 3 may immediately serve Comcast with a Rule 45 subpoena, attaching the order, to obtain the Doe defendant’s true name and addresses. Comcast must notify the Doe defendant within 30 days after service. The Doe defendant then has 30 days after receiving notice to file a motion contesting, quashing, or modifying the subpoena. If no timely challenge is filed, Comcast has 10 days to produce the responsive information. The subpoenaed entity must preserve the information while any timely challenge is pending. The information may be used only to protect Strike 3’s rights in the lawsuit.