Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.63.167.83

Background

Strike 3 Holdings, LLC alleged that an unidentified defendant using Comcast Cable IP address 73.63.167.83 downloaded and distributed 25 of Strike 3’s copyrighted adult motion pictures through BitTorrent. Strike 3 said its detection system made direct connections with the IP address, downloaded files containing copies of its movies, and confirmed the files through the BitTorrent “Info Hash” data. It also said that geolocation technology traced the downloads to a physical address in the Northern District of California.

Strike 3 filed one copyright-infringement claim under the Copyright Act. Because it could not identify the individual associated with the IP address, it asked for permission to serve Comcast with a subpoena under Federal Rule of Civil Procedure 45. The proposed subpoena sought only the name and address of the individual or individuals associated with the IP address.

Legal standard

A court may allow discovery before the parties’ usual initial discovery conference when doing so serves convenience and the interests of justice. Courts generally require “good cause,” meaning that the need for early discovery outweighs the potential prejudice to the responding party.

The court applied four factors for identifying an unknown defendant through early discovery: whether the defendant is described specifically enough to show that the person is real and can be sued in federal court; whether the plaintiff explained its efforts to identify the person; whether the complaint could survive a motion to dismiss; and whether the requested discovery is reasonably likely to produce information that would allow service of process.

Analysis

The court found that Strike 3 satisfied all four factors. First, Strike 3 alleged specific conduct—downloading and distributing its copyrighted movies through BitTorrent—and the court concluded that these allegations identified an actual person who could be sued. The court also found that the alleged activity had been traced to the Northern District of California, supporting 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 insufficient. Third, the court concluded that Strike 3 had sufficiently alleged a prima facie copyright-infringement claim. A prima facie claim requires allegations that the plaintiff owns the copyrighted material and that the defendant violated at least one exclusive copyright right, such as the right to reproduce or distribute the work. Strike 3 alleged that it owned the copyrights and that the 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 that the discovery could permit service of process.

Protective order

The court also issued a limited protective order because the ISP subscriber might not be the person who infringed the copyrights and because the allegations involved sensitive personal matters. Strike 3 may not publicly disclose information Comcast provides 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 such a request within 30 days after the information is disclosed to Strike 3’s counsel, the limited protective order will expire. The court also allowed identifying information in an anonymity request to be filed under seal while the court considers that request.

Disposition

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

The order also requires preservation of subpoenaed information while any timely challenge is pending, requires Comcast to confer with Strike 3 about production costs, and limits Strike 3’s use of the disclosed information to protecting the rights asserted in its complaint. The order did not decide whether the Doe defendant actually infringed Strike 3’s copyrights.