Strike 3 Holdings v. John Doe subscriber assigned IP address 71.202.135.191

Background

Strike 3 Holdings, LLC alleged that an unidentified person using Comcast Cable’s IP address 71.202.135.191 used BitTorrent to download and distribute 30 of Strike 3’s copyrighted adult motion pictures over an extended period. Strike 3 said it owned the copyrights, had detected and downloaded files from the IP address through its infringement-detection system, and had traced the downloads to a physical address in the Northern District of California. Strike 3 filed one copyright-infringement claim but could not identify the person associated with the IP address.

Strike 3 applied for permission to serve Comcast, a non-party internet service provider, with an early subpoena under Federal Rule of Civil Procedure 45. It said the subpoena would be limited to the name and address 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 initial conference when doing so is convenient and serves the interests of justice. Courts generally require a showing of “good cause,” meaning that the need for early discovery outweighs potential prejudice to the responding party.

The court applied four factors for identifying an unknown defendant through early discovery: whether the plaintiff identified the person with enough specificity to show that the person could be sued in federal court; whether the plaintiff described its efforts to locate 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.

Analysis

The court held that Strike 3 satisfied all four factors. First, the allegations that the Doe defendant directed a BitTorrent client to download and distribute Strike 3’s movies were sufficient to identify a potentially real person who could be sued. The court also concluded that tracing the downloads to the Northern District of California supported jurisdiction over the defendant and Strike 3’s federal claim.

Second, Strike 3 explained that the IP address did not itself identify the defendant and described its efforts to trace the downloads to that address and district.

Third, the court determined that Strike 3 had sufficiently alleged a direct copyright-infringement claim. The court explained that such a claim requires allegations that the plaintiff owns the copyrighted material and that the defendant violated at least one exclusive copyright right, such as the rights to reproduce or distribute the work. Strike 3 alleged that it owned the copyrights and that the Doe defendant copied and distributed the movies without permission.

Fourth, the court found that Comcast could reasonably be expected to identify the person associated with the IP address and provide information allowing service of process.

Protective order

Because the internet subscriber might not be the person who committed the alleged infringement, and because the allegations involved sensitive personal matters, the court issued a limited protective order. 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. The court also allowed identifying information in an anonymity request to be filed under seal while it considered that request.

Disposition

The court granted Strike 3’s ex parte motion for expedited discovery. It authorized Strike 3 to immediately serve Comcast with a Rule 45 subpoena seeking the Doe defendant’s true name and addresses. Comcast would have 30 days after service to notify the Doe defendant. The Doe defendant would then have 30 days after receiving notice to file a motion challenging the subpoena, including a motion to quash or modify it. If no timely challenge was filed, Comcast would have 10 days to produce the responsive information.

The order also required preservation of subpoenaed information while any timely challenge was pending, prohibited advance charges for production, required disclosure of billing information if Comcast charged production costs, and limited Strike 3’s use of the information to protecting the rights asserted in its complaint. The order authorized discovery and did not decide whether the Doe defendant actually infringed Strike 3’s copyrights.