Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 67.169.151.59

Background

Strike 3 Holdings, LLC alleged that the unidentified defendant associated with Comcast Cable internet protocol address 67.169.151.59 used BitTorrent to download and distribute 33 of Strike 3’s copyrighted adult motion pictures. Strike 3 said it owns copyrights registered with the United States Copyright Office for movies distributed through its adult brands. It used its VXN Scan system to establish direct connections with the IP address, download files containing copies of the movies, and use the BitTorrent “Info Hash” to confirm the files’ source.

Strike 3 filed one copyright-infringement claim against the Doe defendant. Because it could not identify the individual associated with the IP address, Strike 3 asked for permission to serve Comcast Cable, a 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

Federal Rule of Civil Procedure 26(d) allows a court to authorize discovery before the parties’ required Rule 26(f) conference. Courts in the Ninth Circuit generally require a showing of “good cause,” meaning that the need for expedited discovery outweighs the potential prejudice to the responding party.

The court applied four factors for identifying an unknown defendant through early discovery: whether the plaintiff identified the defendant with enough specificity to show that the defendant is a real person who could be sued in federal court; whether the plaintiff described its efforts to locate and identify the defendant; whether the complaint could withstand a motion to dismiss; and whether the requested discovery was reasonably likely to produce information permitting service of process.

Court’s Analysis

The court held that Strike 3 satisfied all four factors. First, Strike 3 alleged that the Doe defendant directed a BitTorrent client to download and distribute the movies, which indicated that the defendant was an identifiable adult who was likely either the primary subscriber or someone who lived with and was known to the subscriber. Strike 3 also traced the downloads to the Northern District of California, which the court said established jurisdiction over the defendant and the federal copyright claim.

Second, the court found that Strike 3 had described its efforts to identify the defendant and that the IP address alone was insufficient. Third, the court found that Strike 3 had adequately alleged a prima facie copyright-infringement claim. A prima facie claim requires showing ownership of the allegedly infringed material and a violation of at least one exclusive copyright right. Strike 3 alleged that it owned the copyrights and that the movies were copied and distributed without permission.

Fourth, the court found that the requested discovery was reasonably likely to identify the Doe defendant because Strike 3 alleged that Comcast could identify the person through the IP address.

Protective Order

The court issued a limited protective order because the subscriber might not be the person who infringed the copyrights and because the case involved sensitive and personal subject matter. Strike 3 could not publicly disclose information Comcast provided 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 request within 30 days after the information was disclosed to Strike 3’s counsel, the limited protection would expire.

If the Doe defendant included identifying information in a request to proceed anonymously, the court allowed the relevant papers to be filed under seal until it could rule on the request.

Disposition

The court granted Strike 3’s ex parte motion for expedited discovery. Strike 3 could immediately serve Comcast Cable with a Rule 45 subpoena seeking the Doe defendant’s true name and addresses, with a copy of the order attached.

Comcast had 30 days after service to notify the Doe defendant and provide the subpoena and order. The Doe defendant then had 30 days after service to challenge the subpoena, including by moving to quash or modify it. If no timely challenge was filed, Comcast would have 10 days to produce the responsive information. The subpoenaed entity had to preserve the information while any timely motion to quash was resolved. Strike 3 could use information disclosed in response to the subpoena only to protect the rights asserted in its complaint.