Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 98.234.8.197
- Phyllis Hamilton
- 4:21-cv-06809
- U.S. District Court · Northern District of California
- 7
In Strike 3 Holdings v. John Doe subscriber, Judge Hamilton granted early discovery so Strike 3 could seek the defendant’s identity from an internet provider.
Strike 3 Holdings, LLC, the unidentified Doe defendant using IP address 98.234.8.197, Comcast Cable, and any other internet service provider identified through the authorized subpoenas.
What happened
Strike 3 Holdings, LLC sued John Doe subscriber assigned IP address 98.234.8.197, alleging that the person using that address copied and shared 33 copyrighted adult movies through BitTorrent. Strike 3 said it could not identify the person and asked to subpoena Comcast Cable for the subscriber’s name and address.
The court found good cause for early discovery. It concluded that Strike 3 had sufficiently identified a real potential defendant, described its efforts to identify that person, stated a copyright claim that could withstand dismissal, and showed that Comcast’s records were reasonably likely to provide identifying information.
Judge Hamilton granted Strike 3’s request for expedited discovery and allowed subpoenas to Comcast and potentially other identified internet providers. The order requires notice to the Doe defendant, gives that person 30 days to challenge a subpoena, limits use of the information to protecting Strike 3’s rights in the lawsuit, and temporarily protects the information from public disclosure.
The detailed version
- Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 98.234.8.197 · No. 4:21-cv-06809
- Phyllis Hamilton
- Sept. 21, 2021
Background
Strike 3 Holdings, LLC said it owns copyrights in motion pictures distributed through its Blacked, Blacked Raw, Tushy, and Vixen brands. It alleged that someone using IP address 98.234.8.197 used BitTorrent to download and distribute its copyrighted movies without permission. Strike 3 said its detection system traced the activity to that IP address, and that geolocation technology traced the address to Alameda, California. It alleged that the user had been recorded infringing 33 movies over an extended period.
Strike 3 filed one copyright-infringement claim against the unidentified defendant. Because it could not determine the person’s identity, it asked for permission to serve Comcast Cable, identified as the defendant’s internet service provider, with a subpoena under Federal Rule of Civil Procedure 45. Strike 3 said the subpoena would seek only the name and address of the individual or individuals associated with the IP address.
Good Cause for Early Discovery
The court explained that early discovery is discovery allowed before the parties’ normal initial case-management conference. Courts generally require a showing of “good cause,” meaning that the need for the discovery, considering the administration of justice, outweighs possible prejudice to the responding party.
The court applied four factors for identifying an unknown defendant:
- The plaintiff must identify the unknown defendant with enough detail to show that the person is real and can be sued in federal court.
- The plaintiff must describe the steps taken to locate and identify the person.
- The complaint must be able to withstand a motion to dismiss.
- The requested discovery must be reasonably likely to produce information that will allow the plaintiff to serve the defendant.
The court found that Strike 3 satisfied all four factors. It found that the allegations identified a real potential defendant who downloaded and distributed the movies, and that the activity was traced to the Northern District of California. It also found that Strike 3 had explained why the IP address alone was insufficient to identify the person.
For the third factor, the court concluded that Strike 3 had sufficiently alleged a preliminary copyright-infringement claim. The court stated that such a claim requires ownership of the copyrighted material and a violation of at least one exclusive copyright right. It also noted that direct copyright infringement does not require intent or a particular mental state. The court found that Strike 3 adequately alleged ownership and unauthorized copying or distribution.
Finally, the court found that Comcast’s records were reasonably likely to identify the Doe defendant and allow service of the lawsuit.
Protective Order
The court issued a limited protective order because the internet subscriber might not be the person who infringed the copyrights and because the allegations involved sensitive personal matters. Strike 3 may not publicly disclose information released by an internet provider until the Doe defendant has had an opportunity to ask to proceed anonymously and the court has ruled on that request.
The protective order expires if the Doe defendant does not file that request within 30 days after the information is disclosed to Strike 3’s counsel. If the Doe defendant includes identifying information in a request to proceed anonymously, the court allowed those papers to be filed under seal while the court considers the request.
Order
Judge Hamilton granted Strike 3’s ex parte motion for expedited discovery. Strike 3 may serve Comcast with a Rule 45 subpoena seeking the Doe defendant’s true name and address. Strike 3 may also subpoena another internet service provider identified in response to a subpoena.
A provider must give the Doe defendant a copy of the subpoena and the order within 30 days. The Doe defendant may move to quash or modify the subpoena within 30 days after service. If no timely challenge is filed, the provider must produce the responsive information within 10 days. The provider must preserve the information while any timely challenge is pending, may not charge in advance, and must provide supporting billing information for any production costs. Strike 3 may use information obtained through the subpoenas only to protect the rights asserted in its complaint.
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.