Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 136.24.50.239

Background

Strike 3 Holdings, LLC alleged that the unidentified defendant using IP address 136.24.50.239 downloaded and distributed 47 of Strike 3’s copyrighted adult motion pictures through BitTorrent. Strike 3 said it owned copyrights registered with the United States Copyright Office and had not authorized the distribution. It traced the downloads to a physical address in the Northern District of California, but said the IP address alone did not identify the individual.

Strike 3 filed one copyright-infringement claim and then asked for permission to serve Webpass, the non-party internet-service provider, with a subpoena under Federal Rule of Civil Procedure 45. The requested subpoena was limited to the name and addresses of the individual or individuals associated with the IP address.

Legal standard

The court explained that Federal Rule of Civil Procedure 26(d) allows early discovery before the parties’ usual discovery conference when it is convenient for the parties and witnesses and serves the interests of justice. Courts generally require “good cause,” meaning that the need for expedited discovery outweighs the possible prejudice to the responding party.

The court applied four factors: whether the Doe defendant was identified specifically enough to show that the person was real and could be sued in federal court; whether Strike 3 described its efforts to locate the person; whether the copyright claim could survive a motion to dismiss; and whether the requested discovery was reasonably likely to produce information allowing service of process.

Analysis

The court found that Strike 3 satisfied all four factors. The allegations that the Doe defendant directed a BitTorrent client to download and distribute the movies were specific enough for the court to determine that the defendant was likely an identifiable adult who was either the primary subscriber or someone residing with and known to the subscriber. The court also found that tracing the downloads to the Northern District of California supported jurisdiction over the defendant and the federal copyright claim.

The court concluded that Strike 3 had sufficiently alleged a basic copyright-infringement claim. It stated that such a claim requires ownership of the allegedly infringed material and a violation of at least one exclusive copyright right, such as the right to reproduce or distribute the work. Strike 3 alleged ownership and unauthorized downloading and distribution. The court also found that Webpass was reasonably likely to identify the Doe defendant through the IP address.

Protective order

Because the internet subscriber might not be the person who infringed the copyrights, and because the allegations concerned sensitive and personal matters, the court issued a limited protective order. Any information Webpass released to Strike 3 had to remain confidential for a limited period. Strike 3 could not publicly disclose the information until the Doe defendant had an opportunity to ask to proceed anonymously and the court ruled on that request.

If the Doe defendant did not file such a motion within 30 days after the information was disclosed to Strike 3’s counsel, the limited protective order would expire. If the Doe defendant included identifying information in a request to proceed anonymously, the court said the papers could be filed under seal.

Order

Judge Laurel Beeler granted Strike 3’s ex parte motion for expedited discovery. Strike 3 could immediately serve Webpass with a Rule 45 subpoena seeking the Doe defendant’s true name and addresses, and had to attach the order. Webpass had 30 days after service to notify the Doe defendant. The Doe defendant then had 30 days after service to challenge the subpoena, including by asking the court to cancel or modify it. If no timely challenge was filed, Webpass would have 10 days to provide the responsive information.

The subpoenaed entity had to preserve the information while any timely challenge was pending. Webpass also had to confer with Strike 3 and could not charge costs before providing the requested information; any claimed production costs had to be supported by billing and cost reports. Strike 3 could use information obtained through the subpoena only to protect the rights described in its complaint. The order authorized discovery to identify the defendant; it did not decide whether the Doe defendant was liable for copyright infringement.