Strike 3 Holdings v. John Doe subscriber assigned IP address 108.235.115.93

Background

Strike 3 Holdings alleged that the unknown Doe defendant used the IP address 108.235.115.93, provided by AT&T U-verse, to use BitTorrent to download and distribute Strike 3’s copyrighted adult motion pictures. Strike 3 alleged that its detection system made direct connections with the IP address, downloaded files containing copies of its movies, and confirmed the files through BitTorrent’s identifying data. Strike 3 alleged that the IP address was associated with a physical address in the Northern District of California and that the defendant had infringed 30 movies over an extended period.

Strike 3 filed one copyright-infringement claim under the Copyright Act. Because it could not identify the Doe defendant, it requested permission to serve AT&T U-verse with an early 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.

Legal standard

Federal Rule of Civil Procedure 26(d) permits a court to authorize discovery before the usual conference between the parties when appropriate. Courts in the Ninth Circuit generally require a showing of “good cause,” meaning that the need for expedited discovery outweighs the potential prejudice to the responding party.

The court applied four factors for early discovery to identify an unknown defendant: whether the plaintiff identified a real person who could be sued in federal court; whether the plaintiff described its efforts to identify that 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 were sufficiently specific to indicate an identifiable adult who might be the primary subscriber or someone residing with and known to the subscriber. The court also found that tracing the downloads to the Northern District of California 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 insufficient. Third, the court concluded that the copyright claim could withstand a motion to dismiss because Strike 3 alleged ownership of the copyrights and alleged that the movies were copied and distributed without permission. Fourth, the court found that AT&T U-verse was reasonably likely to provide identifying information connected to the IP address.

The court separately issued a limited protective order. It recognized that an ISP subscriber might not be the person who infringed the copyrights and that allegations involving the downloading of adult movies could involve sensitive personal matters. Any information AT&T U-verse released to Strike 3 had to remain confidential 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 make that request within 30 days after disclosure to Strike 3’s counsel, the limited protective order would expire. The court also allowed identifying information in an anonymity request to be filed under seal pending its ruling.

Disposition

The court GRANTED Strike 3’s Ex Parte Motion for Expedited Discovery. Strike 3 could immediately serve a Rule 45 subpoena on AT&T U-verse for the Doe defendant’s true name and addresses, with a copy of the order attached.

AT&T U-verse was required to notify the Doe defendant within 30 days after service. 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 the subpoena was not challenged within that period, the ISP would have 10 days to produce the responsive information. The subpoenaed entity had to preserve the information while any timely challenge was pending. Any information produced could be used only to protect Strike 3’s rights described in the complaint.

The opinion is signed by Laurel Beeler, United States Magistrate Judge. The supplied case metadata identifies Maxine Chesney as the judge, but the opinion states that discovery was referred to the undersigned and is signed by Laurel Beeler.