Strike 3 Holdings v. John Doe subscriber assigned IP address 73.222.246.161
- Phyllis Hamilton
- 4:21-cv-07759
- U.S. District Court · Northern District of California
- 7
In Strike 3 Holdings v. John Doe, Judge Hamilton allowed early discovery so Strike 3 could subpoena an internet provider for the Doe subscriber’s identity.
Strike 3 Holdings, LLC may seek the identity and address of the unidentified defendant through subpoenas to Comcast Cable or another identified internet service provider. The Doe defendant may challenge a subpoena, and the provider must preserve and protect the subpoenaed information under the court’s order.
What happened
Strike 3 Holdings, LLC sued an unidentified person associated with IP address 73.222.246.161, alleging that the person used BitTorrent to download and distribute 30 of Strike 3’s copyrighted adult movies. Strike 3 said it could not identify the person from the IP address alone and asked to subpoena Comcast Cable for the subscriber’s name and address.
The court found good cause for early discovery because Strike 3 had sufficiently identified a potentially real defendant, described its efforts to locate that person, stated a copyright claim that could withstand dismissal, and showed that Comcast’s records were reasonably likely to identify someone who could be served. The court also recognized that the subscriber might not be the person who used the connection to infringe the copyrights.
Judge Hamilton granted Strike 3’s request for expedited discovery. Strike 3 may serve subpoenas seeking the Doe defendant’s name and address, but the internet provider must notify the Doe defendant, who may challenge the subpoena within 30 days. The court did not decide whether the Doe defendant infringed Strike 3’s copyrights and restricted use of any identifying information to protecting Strike 3’s rights in the lawsuit.
The detailed version
- Strike 3 Holdings v. John Doe subscriber assigned IP address 73.222.246.161 · No. 4:21-cv-07759
- Phyllis Hamilton
- Oct. 18, 2021
Background
Strike 3 Holdings, LLC alleged that the unidentified defendant associated with IP address 73.222.246.161 used the BitTorrent file-sharing network to download and distribute Strike 3’s copyrighted adult motion pictures. Strike 3 said its detection system traced the activity to the IP address, and that geolocation technology placed the activity at a physical address in San Leandro, California. Strike 3 alleged that the defendant infringed the copyrights in 30 movies over an extended period and that Comcast Cable could identify the person associated with the IP address.
Strike 3 filed one claim for copyright infringement under the Copyright Act. Before the parties’ usual discovery conference, it asked for permission to serve Comcast with a Rule 45 subpoena—a formal demand for information issued through the court—to obtain the name and address of the individual or individuals associated with the IP address.
Legal standard
The court explained that federal rules allow early discovery before the parties’ Rule 26(f) conference when there is good cause. Courts assess whether the need for expedited discovery outweighs possible prejudice to the responding party. For a request seeking the identity of an unidentified defendant, the court considered whether Strike 3: (1) identified the Doe defendant specifically enough to show that the person could be sued in federal court; (2) described its efforts to identify the person; (3) alleged a claim that could withstand a motion to dismiss; and (4) showed that the requested discovery was reasonably likely to produce information allowing service of process.
Court’s analysis
The court found that Strike 3 satisfied all four requirements. First, the allegations that the Doe defendant directed a BitTorrent client to download and distribute the movies identified an individual who could be sued. The court also found that tracing the activity to the Northern District of California supported federal jurisdiction over the defendant and the federal copyright claim.
Second, Strike 3 explained that the IP address was not enough by itself to identify the defendant, so it needed information from the internet service provider. Third, the court found that Strike 3 had adequately alleged a basic copyright-infringement claim by alleging ownership of the copyrights and infringement of at least one exclusive copyright right. Fourth, the court found that Comcast’s records were reasonably likely to provide identifying information that would permit service of process.
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 could not publicly disclose information received from the internet provider until the Doe defendant had an opportunity to ask to proceed anonymously and the court ruled on that request. The protective order would expire if the Doe defendant did not file such a request within 30 days after the information was disclosed to Strike 3’s counsel. Identifying information included in an anonymity request could be filed under seal.
Disposition
The court granted Strike 3’s ex parte motion for expedited discovery. Strike 3 could serve Comcast with a Rule 45 subpoena seeking the Doe defendant’s true name and address, and could serve a similar subpoena on another internet service provider identified in response to the first subpoena. The provider had to notify the Doe defendant within 30 days. The Doe defendant could file a motion challenging, quashing, or modifying the subpoena within 30 days after service. If no timely challenge was filed, the provider had to produce the responsive information within 10 days. Any disclosed information could be used only to protect Strike 3’s rights stated in the complaint.
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.