Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.63.224.184

Background

Strike 3 alleged that a BitTorrent user distributed 70 of its copyrighted titles without authorization. Strike 3 identified the user’s Internet Protocol (IP) address but could not determine the name and address of the account owner. It asked for permission to serve a third-party subpoena on Comcast Cable, the internet service provider associated with the IP address, before the parties’ required initial conference.

The opinion noted concerns that Strike 3’s lawsuits could pressure account owners to settle because the allegations involved copyrighted adult pornography. It also noted that an IP address can be shared by multiple people and that the account owner might not be the person who allegedly infringed the copyrights. The factual background was based on the complaint’s allegations, which the court was required to treat as true for this request.

Legal standard

Under Federal Rule of Civil Procedure 26(d), a court may permit discovery before the normal start of discovery when there is good cause. Courts generally consider whether the need for early discovery outweighs possible prejudice to the responding party. For a request to identify an unknown defendant, the plaintiff must generally show that the defendant is described specifically enough to be sued in federal court, that reasonable efforts to identify the defendant have been made, that the case could withstand a motion to dismiss, and that the requested discovery is reasonably likely to produce information allowing service of process.

Court’s reasoning

The court concluded that Strike 3 met these requirements. It needed the subpoena to identify the defendant, had tried other ways to obtain the identity, and alleged facts supporting a copyright-infringement claim. The court relied on Ninth Circuit authority approving limited discovery to identify unknown copyright infringers.

The court rejected several possible reasons for denying the subpoena at this stage. Copyright protection applies to pornography, and the fact that an IP address may be used by multiple people did not prevent discovery to determine who used it. The court also stated that it had to assume the truth of Strike 3’s allegations and draw reasonable inferences in Strike 3’s favor for purposes of this request. Although Strike 3’s broader litigation practices were appropriate for judicial notice, the court held that those practices could not supply grounds for denying the subpoena.

Ruling and protective measures

The court granted Strike 3 leave to serve a Federal Rule of Civil Procedure 45 subpoena on Comcast Cable for the true name and address of the defendant assigned the identified IP address. Strike 3 could also serve follow-on subpoenas on other internet providers identified in response to the Comcast subpoena.

The order required the provider to send the subscriber a copy of the order. If the provider declined to do so, Strike 3 had to provide the order to the defendant before or at the same time as any other service or communication. Strike 3 also had to file proof of its request or an affidavit confirming that the provider had forwarded the order.

The information obtained through the subpoena could be used only to protect and enforce Strike 3’s rights stated in the complaint. Strike 3 could not publicly disclose the information without court permission, at least until the defendant had an opportunity to ask to proceed anonymously or further discovery occurred. References to the defendant’s identity had to be redacted and filed under seal. Strike 3 also had to file an affidavit confirming that it had proposed a confidentiality agreement, including relevant communications about that proposal.

Judge Richard Seeborg therefore granted leave for the subpoena subject to these protective requirements. The order did not determine who used the IP address or whether the defendant infringed Strike 3’s copyrights.