Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 208.95.232.16

Background

Strike 3 Holdings, LLC said it owns copyrights in several adult motion pictures distributed through its Blacked, Tushy, Vixen, and Blacked Raw brands. It alleged that the unidentified defendant using internet protocol address 208.95.232.16 downloaded and distributed those movies through BitTorrent, a file-distribution network. Strike 3 said its detection system established direct connections with the address, downloaded copies of the movies from the defendant, and recorded infringement involving 31 movies over an extended period.

Strike 3 traced the downloads to a physical address in the Northern District of California but could not identify the individual associated with the internet address. It filed one copyright-infringement claim and then asked for permission to serve a subpoena on nonparty Sail Internet, the internet-service provider associated with the address. The requested subpoena was limited to the name and address of the individual or individuals associated with the address.

Legal Standard

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

The court applied four factors for identifying an unknown defendant through early discovery: whether the plaintiff identified a real person who 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 found that Strike 3 satisfied all four factors. First, Strike 3’s allegations that the defendant directed a BitTorrent client to download and distribute the movies were specific enough for the court to determine that the defendant was an identifiable adult who could likely be the primary subscriber or someone residing with and known to the subscriber. The court also found that the alleged downloads’ connection to the Northern District of California supported jurisdiction over the defendant and Strike 3’s federal claim.

Second, the court found that Strike 3 had described its efforts to identify the defendant and had explained why the internet address alone was insufficient. Third, the court found that the copyright claim could withstand a motion to dismiss. A direct copyright-infringement claim requires showing ownership of the copyrighted material and violation of at least one exclusive right held by copyright owners. Strike 3 alleged that it owned the copyrights and that the defendant copied and distributed the movies without permission.

Fourth, the court found that Sail Internet could reasonably be expected to identify the defendant through the internet address. The court therefore concluded that good cause existed for early discovery.

Limited Protective Order

The court also issued a limited protective order because the subscriber might not be the person who allegedly infringed the copyrights and because the case involved sensitive personal matters. Information released by Sail Internet could not be publicly disclosed until the defendant had an opportunity to ask to proceed anonymously and the court ruled on that request.

If the defendant did not seek permission to proceed anonymously within 30 days after the information was disclosed to Strike 3’s counsel, the limited protective order would expire. If the defendant included identifying information in an anonymity request, the court directed that the relevant papers be filed under seal until it could rule on the request.

Order

The court granted Strike 3’s expedited discovery motion concerning the subscriber assigned internet address 208.95.232.16. Strike 3 may immediately serve Sail Internet with a subpoena under Federal Rule of Civil Procedure 45 seeking the defendant’s true name and addresses, and it must attach the court’s order.

Sail Internet must notify the Doe defendant within 30 days after being served. The Doe defendant then has 30 days after receiving notice to file a motion challenging the subpoena, including a motion to cancel or modify it. If that period passes without a challenge, Sail Internet has 10 days to provide the responsive information to Strike 3. The subpoenaed entity must preserve the information while any timely challenge is pending.

The order also requires Sail Internet to confer with Strike 3 before charging production costs and limits any information disclosed in response to the subpoena to Strike 3’s efforts to protect the rights asserted in its complaint. The order authorizes discovery to identify the defendant; it does not decide whether the Doe defendant committed copyright infringement.