Strike 3 Holdings v. John Doe subscriber assigned IP address 135.180.67.148

Background

Strike 3 Holdings, LLC alleged that the unidentified defendant associated with IP address 135.180.67.148 used BitTorrent to download and distribute Strike 3’s copyrighted adult motion pictures. Strike 3 said it owns copyrights in movies distributed through its Blacked, Tushy, Vixen, and Blacked Raw brands, and that the movies are registered with the United States Copyright Office.

Strike 3 alleged that its infringement-detection system established direct connections with the IP address while the defendant was using BitTorrent. According to Strike 3, the system downloaded files containing copies of its movies from the defendant, and the files’ identifying data confirmed that they came from the defendant. Strike 3 alleged that the defendant had infringed 78 movies over an extended period and had no authorization to distribute them.

Strike 3 filed one copyright-infringement claim and then asked for permission to serve an early subpoena on Sonic.net, LLC, the internet service provider associated with the IP address. The requested subpoena was limited to the name and addresses of the individual or individuals associated with that IP address.

Legal standard

Federal Rule of Civil Procedure 26(d) allows a court to authorize discovery before the parties’ usual initial-discovery conference when appropriate. Courts in the Ninth Circuit generally require a showing of “good cause,” meaning that the need for early discovery must outweigh the potential prejudice to the responding party.

The court applied four factors for identifying an unknown defendant through early discovery: whether the defendant was identified specifically enough to show that a real person could be sued in federal court; whether the plaintiff had taken reasonable steps 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 the movies identified an individual sufficiently specifically for purposes of early discovery. The court also noted Strike 3’s allegation that the downloads were traced to the Northern District of California, which supported jurisdiction over the defendant and the federal copyright claim.

Second, the court found that Strike 3 had explained its efforts to identify the defendant and that the IP address alone was not enough. Third, the court concluded 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. Fourth, the court found that Sonic.net was reasonably likely to have identifying information connected to the IP address.

The court also issued a limited protective order. It recognized that the internet subscriber might not be the person who actually infringed the copyrights and that allegations involving adult movies could concern sensitive personal matters. Any information Sonic.net disclosed to Strike 3 had to remain confidential and could not be publicly disclosed 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 disclosure to Strike 3’s counsel, the limited protection would expire. Identifying information included in an anonymity request could be filed under seal.

Order

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

Sonic.net 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 contesting the subpoena, including a motion to quash or modify it. If that period passed without a challenge, Sonic.net would have 10 days to provide responsive information to Strike 3. The subpoenaed entity had to preserve the information while any timely challenge was pending.

The information could be used only to protect Strike 3’s rights described in its complaint. The order addressed early discovery and confidentiality; it did not decide whether the Doe defendant actually infringed Strike 3’s copyrights.