Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 67.180.142.99

Background

Strike 3 Holdings, LLC alleged that the unidentified defendant used BitTorrent to download and distribute 38 of Strike 3’s copyrighted adult motion pictures. Strike 3’s investigator allegedly made direct connections with the IP address, downloaded files from the defendant, and confirmed the files using their unique digital fingerprints. Strike 3 alleged that the IP address had been traced to a physical address in the Northern District of California but that the IP address alone did not identify the person.

Strike 3 filed one copyright-infringement claim and then sought permission to serve Comcast, the non-party internet service provider, with an early subpoena under Federal Rule of Civil Procedure 45. Strike 3 said the subpoena would be limited to the name and addresses of the individual or individuals associated with the IP address.

Reason for Allowing Early Discovery

The court applied the “good cause” standard generally used in the Ninth Circuit for discovery before the parties’ required initial conference. It considered four factors: whether the alleged defendant was described specifically enough to be a real person who could be sued in federal court; whether the plaintiff had taken reasonable steps to identify the person; whether the complaint could withstand a motion to dismiss; and whether the requested discovery was reasonably likely to produce information allowing service of process.

The court found that Strike 3 satisfied all four factors. It concluded that the allegations described an identifiable adult who was likely the primary subscriber or someone residing with and known to the subscriber. It also found that Strike 3 had described its efforts to trace the activity and identify the defendant.

The court further found that Strike 3 had adequately alleged a preliminary copyright-infringement claim. Strike 3 alleged ownership of the movies and alleged that the defendant copied and distributed them without permission, conduct implicating rights reserved to copyright owners under the Copyright Act. Finally, the court found that Comcast’s records were reasonably likely to identify the defendant and permit service of process.

Protective Order

The court issued a limited protective order for information Comcast might provide. It recognized that the subscriber might not be the person who allegedly infringed the copyrights and that allegations involving the downloading of adult movies could involve sensitive and highly personal matters.

Strike 3 may not publicly disclose the identifying information 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 seek permission to proceed anonymously within 30 days after the information is disclosed to Strike 3’s counsel, the limited protective order will expire. Any papers containing identifying information submitted with an anonymity request may be filed under seal while the court considers that request.

Order

The court granted Strike 3 Holdings’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 order to the subpoena.

Comcast has 30 days after service to notify the Doe defendant. The Doe defendant then has 30 days after receiving notice to file a motion contesting the subpoena, including a motion to quash or modify it. If no timely challenge is filed, Comcast has 10 days to produce responsive information. The subpoenaed entity must preserve the information while any timely motion to quash is pending. Any identifying information produced in response to the subpoena may be used only to protect Strike 3 Holdings’s rights in this lawsuit. The order disposed of Docket No. 7.