Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 23.118.49.112

Background

Strike 3 Holdings, LLC alleged that the unidentified defendant using internet protocol address 23.118.49.112 downloaded and distributed 32 of Strike 3’s copyrighted adult motion pictures through BitTorrent. Strike 3 said it owned registered copyrights in the movies and that its detection system established direct connections with the internet protocol address and downloaded copies of the movies from it. Strike 3 alleged that the address was provided by AT&T U-verse and that the internet service provider could identify the person associated with it.

Strike 3 filed one copyright-infringement claim on August 8, 2022. On August 30, 2022, it asked for permission to serve AT&T U-verse with an early subpoena under Federal Rule of Civil Procedure 45. The requested subpoena was limited to the name and address of the individual or individuals associated with the internet protocol address.

Legal Standard

Federal Rule of Civil Procedure 26(d) allows a court to authorize discovery before the parties’ usual initial discovery conference. Courts in the Ninth Circuit generally require a showing of “good cause,” meaning that the need for early discovery, considering the administration of justice, outweighs possible prejudice to the responding party.

The court applied four factors: whether the plaintiff identified the unknown defendant specifically enough to show that the person could be sued in federal court; whether the plaintiff described its efforts to locate and identify 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, the allegations that the defendant downloaded and distributed the movies through BitTorrent, together with the tracing of the downloads to the Northern District of California, were specific enough for the court to determine that the defendant was an identifiable person who could be sued in federal court.

Second, Strike 3 described its efforts to identify the defendant and explained that the internet protocol address alone was not enough to do so. Third, the court found that Strike 3 had sufficiently alleged a direct copyright-infringement claim. Such a claim requires allegations that the plaintiff owns the copyrighted material and that the defendant violated at least one exclusive copyright right. Strike 3 alleged ownership and unauthorized copying and distribution.

Fourth, the court found that the requested discovery was reasonably likely to identify the defendant because Strike 3 alleged that AT&T U-verse could identify the subscriber through the internet protocol address.

Protective Order

The court issued a limited protective order because the subscriber might not be the person who allegedly infringed the copyrights and because the allegations involved sensitive personal matters. Information that AT&T U-verse provided to Strike 3 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 file such a request within 30 days after the information was disclosed to Strike 3’s counsel, the limited protection would expire. The court also allowed identifying information included in an anonymity request to be filed under seal until it ruled on the request.

Disposition

The court granted Strike 3’s ex parte motion for expedited discovery concerning the John Doe subscriber assigned internet protocol address 23.118.49.112. Strike 3 could immediately serve AT&T U-verse with a Rule 45 subpoena seeking the defendant’s true name and addresses, with a copy of the order attached.

AT&T U-verse had 30 days after service to notify the defendant. The defendant then had 30 days after receiving notice to file a motion challenging the subpoena, including a motion to quash or modify it. If no timely challenge was filed, the internet service provider would have 10 days to produce responsive information. The provider had to preserve the information while any timely challenge was pending, and any information disclosed could be used only to protect Strike 3’s rights described in the complaint.