Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.92.59.93

Background

Strike 3 Holdings, LLC alleged that the unidentified person using Comcast Cable IP address 73.92.59.93 downloaded and distributed its copyrighted adult motion pictures through BitTorrent. Strike 3 said its detection system made direct connections with the IP address, downloaded files containing copies of its movies, and confirmed the files through BitTorrent identification data. Strike 3 alleged that the address had been associated with infringement involving 39 movies over an extended period and that it had not authorized the distribution.

Strike 3 filed one claim for copyright infringement under the Copyright Act. Because it could not identify the individual associated with the IP address, it sought permission to serve Comcast, 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

Federal Rule of Civil Procedure 26(d) allows a court to authorize discovery before the parties’ required early case-management conference when appropriate. 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 used to evaluate requests to identify an unknown defendant: whether the plaintiff identified a potentially real person who could be sued in federal court; whether the plaintiff described its efforts to locate that person; whether the complaint could survive a motion to dismiss; and whether the requested discovery was reasonably likely to produce information allowing the defendant to be served.

Analysis

The court held that Strike 3 satisfied all four factors. First, it found that the allegations identified a potentially real adult who downloaded and distributed the movies and that the alleged activity had been traced to the Northern District of California. Second, the court found that Strike 3 had explained why the IP address alone was insufficient to identify the person.

Third, the court found that Strike 3 had sufficiently alleged a basic copyright-infringement claim. The court explained that such a claim requires ownership of the copyrighted material and a violation of at least one exclusive copyright right, such as the right to reproduce or distribute the work. Strike 3 alleged that it owned the copyrights and that the Doe defendant copied and distributed the movies without permission. The court did not make a final finding that infringement occurred.

Fourth, the court found that Comcast could identify the person associated with the IP address, making the requested discovery reasonably likely to provide information needed for service of process.

Protective order

The court also issued a limited protective order. It recognized that the internet subscriber might not be the person who allegedly infringed the copyrights and that allegations involving the downloading of adult movies could concern sensitive personal matters. Information Comcast released to Strike 3 must therefore remain confidential until the Doe defendant has an opportunity to ask to proceed anonymously and the court rules 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 stated that identifying information included in a sealed request to proceed anonymously would remain under seal, subject to the court’s handling of that request.

Disposition

The court GRANTS Strike 3’s Ex Parte Motion for Expedited Discovery. Strike 3 may immediately serve Comcast with a Rule 45 subpoena seeking the Doe defendant’s true name and addresses, and it must attach the court’s order to the subpoena.

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 provide the responsive information to Strike 3. The subpoenaed entity must preserve the information while any timely motion to quash is resolved, and any information disclosed may be used only to protect Strike 3’s rights described in its complaint.