Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.170.119.19

Background

Strike 3 Holdings, LLC alleged that the unidentified user of IP address 73.170.119.19 used BitTorrent to download and distribute 39 of Strike 3’s copyrighted adult motion pictures. Strike 3 said its detection system established direct connections with the IP address and downloaded files containing copies of its movies. It further alleged that the downloads were traced to a physical address in the Northern District of California and that Comcast Cable, the internet-service provider associated with the IP address, could identify the user.

Strike 3 filed one claim for copyright infringement under the Copyright Act. Before the parties’ required initial conference, it filed an ex parte application—an application made without advance participation by the opposing party—for permission to serve Comcast with a Federal Rule of Civil Procedure 45 subpoena. The requested subpoena was limited to the name and addresses of the individual or individuals associated with the IP address.

Analysis

The court applied the Ninth Circuit district courts’ good-cause standard for early discovery. It considered whether Strike 3: (1) identified the Doe defendant specifically enough for the court to determine that the defendant was a real person who could be sued in federal court; (2) described its efforts to locate and identify the defendant; (3) showed that its copyright claim could withstand a motion to dismiss; and (4) showed that the requested discovery was reasonably likely to produce information allowing service of process.

The court found that Strike 3 satisfied all four requirements. It found the allegations sufficient to identify a likely individual associated with the IP address and concluded that the alleged activity and its location supported the court’s jurisdiction over the federal claim. It also found that Strike 3 had explained why the IP address alone was insufficient to identify the defendant.

On the copyright claim, the court stated that a direct-infringement claim requires ownership of the allegedly infringed work and a violation of at least one exclusive copyright right. The court found Strike 3’s allegations—that it owned the copyrights and that the Doe defendant copied and distributed the movies without permission—sufficient to state a preliminary claim that could withstand dismissal. The court did not decide whether the Doe defendant actually infringed the copyrights.

The court also noted that the internet subscriber might not be the person who committed the alleged infringement. Because the case involved sensitive and personal subject matter, the court issued a limited protective order concerning information Comcast disclosed.

Order

Judge Laurel Beeler granted Strike 3’s ex parte motion for expedited discovery. Strike 3 could immediately serve Comcast with a Rule 45 subpoena seeking the Doe defendant’s true name and addresses, and it had to attach the order to the subpoena.

Comcast had 30 days after service to provide the Doe defendant with the subpoena and the order. The Doe defendant then had 30 days after service 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 responsive information to Strike 3. Comcast had to preserve subpoenaed information while any timely challenge was pending.

The disclosed information could be used only to protect Strike 3’s rights described in its complaint. 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 request within 30 days after the information was disclosed to Strike 3’s counsel, the limited protective order would expire.