Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 71.202.242.16

Background

Strike 3 Holdings, LLC alleged that the person using Comcast Cable internet protocol address 71.202.242.16 downloaded and distributed its copyrighted adult motion pictures through BitTorrent. Strike 3 said it owned copyrights registered with the United States Copyright Office, and alleged that its monitoring system established direct connections with the IP address and downloaded files identified as copies of Strike 3’s movies. Strike 3 alleged that the activity involved 30 movies over an extended period and that it had not authorized the distribution.

Strike 3 filed one copyright-infringement claim against the unidentified defendant. Because it could not determine the person’s name from the IP address, it asked for permission to serve Comcast with a subpoena under Federal Rule of Civil Procedure 45. The requested information was limited to the name and addresses of the individual or individuals associated with the IP address.

Good Cause for Early Discovery

Federal Rule of Civil Procedure 26(d) allows discovery before the parties’ usual initial discovery conference when appropriate. The court applied the four-factor test used for identifying an unknown defendant: whether the Doe defendant was described specifically enough to be a real person who could be sued in federal court; whether the plaintiff explained its efforts to identify the person; whether the complaint could withstand a motion to dismiss; and whether the requested discovery was reasonably likely to produce information permitting service of process.

The court found that Strike 3 satisfied all four factors. First, Strike 3 alleged that the Doe defendant directed a BitTorrent client to download and distribute the movies and traced the downloads to the Northern District of California. Second, Strike 3 explained that the IP address did not itself identify the defendant. Third, the court found that Strike 3 had adequately alleged a preliminary copyright-infringement claim by alleging ownership of the works and unauthorized copying and distribution. Fourth, the court accepted Strike 3’s allegation that Comcast could identify the person associated with the IP address.

Protective Order

The court issued a limited protective order because the Comcast subscriber might not be the person who allegedly infringed the copyrights and because the allegations involved sensitive personal matters. Information Comcast released to Strike 3 may not be publicly disclosed until the Doe defendant has an opportunity to ask to proceed anonymously and the court rules on that request. If the Doe defendant does not file that request within 30 days after the information is disclosed to Strike 3’s counsel, the limited protection will expire. Any identifying information included in an anonymity request may be filed under seal while the court considers the request.

Ruling and Conditions

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

The subpoenaed entity must preserve the information while any timely challenge is pending. The internet provider must confer with Strike 3 and may not charge in advance for producing the information, although it may later seek production costs with supporting billing information. Strike 3 may use information produced under the subpoena only to protect the rights described in its complaint.