Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 98.42.128.88
- Virginia Demarchi
- 5:22-cv-00557
- U.S. District Court · Northern District of California
- 3
In Strike 3 Holdings v. John Doe, Judge Demarchi granted Strike 3 permission to subpoena Comcast for the subscriber’s identity.
Strike 3 Holdings, LLC may obtain limited identifying discovery from Comcast Cable. The unidentified subscriber associated with IP address 98.42.128.88 must receive notice and may object or seek a protective order. The order does not decide whether the subscriber infringed copyright.
What happened
Strike 3 Holdings, LLC sued an unidentified subscriber associated with IP address 98.42.128.88 and asked to subpoena Comcast Cable before the parties’ required initial meeting. Strike 3 sought the subscriber’s true name and address.
The court found good cause for the early subpoena. It concluded that Strike 3 had sufficiently identified a potentially suable defendant, described efforts to locate that person, showed that its lawsuit could survive a request for dismissal, and showed a reasonable chance that discovery would identify the defendant. The court also noted Strike 3’s copyright-registration compliance and said that, although an internet subscriber’s connection to an IP address alone is not enough to plausibly allege copyright infringement, limited discovery was proper at this stage.
Judge Virginia K. Demarchi granted Strike 3’s motion. Comcast must notify the subscriber and provide an opportunity to object or seek a protective order. Strike 3 may use the information only to protect and enforce the rights described in its complaint and may not publicly disclose the subscriber’s identity without consent or court permission.
The detailed version
- Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 98.42.128.88 · No. 5:22-cv-00557
- Virginia Demarchi
- Feb. 25, 2022
Background
Strike 3 Holdings, LLC asked for permission to serve Comcast Cable, the internet service provider identified in the application, with a third-party subpoena before the parties held their conference required by Federal Rule of Civil Procedure 26(f). The subpoena would seek the true name and address of the subscriber to whom Comcast assigned IP address 98.42.128.88.
Court’s Analysis
The court applied the good-cause standard described in Gillespie v. Civiletti and the four-factor approach from Columbia Insurance Co. v. Seescandy.com. The court found that Strike 3 had shown: (1) enough information to determine that the unidentified defendant was a real person or entity who could be sued in federal court; (2) steps previously taken to locate the defendant; (3) that the action could withstand a motion to dismiss; and (4) a reasonable likelihood that discovery could identify the defendant so service could be completed. The court also noted that Strike 3’s application indicated compliance with the copyright-registration requirement in 17 U.S.C. § 411(a).
The court recognized that a bare allegation that someone is the registered subscriber for an IP address associated with infringing activity is not enough by itself to state a plausible claim for direct or contributory copyright infringement. Nevertheless, based on the record presented and the early stage of the case, the court concluded that Strike 3 could use limited discovery to determine the defendant’s identity.
Order
Judge Virginia K. Demarchi granted Strike 3’s application and ordered the following:
- Strike 3 may serve Comcast with a Rule 45 subpoena, which is a formal demand for information from a nonparty, seeking the subscriber’s true name and address. Strike 3 must attach the order to the subpoena. - Comcast must serve the subscriber with copies of the subpoena and order within 30 days after Comcast receives the subpoena. Comcast may use reasonable means, including first-class mail or overnight service. - Strike 3 may use the disclosed information only to protect and enforce the rights described in its complaint. - Comcast may object to the subpoena and may seek a protective order, which is a court order limiting or preventing disclosure. - If Comcast provides identifying information, Strike 3 may not publicly disclose it without the subscriber’s consent or leave of court.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.