Strike 3 Holdings v. John Doe subscriber assigned IP address 162.237.76.248

Background

Strike 3 Holdings, LLC alleged that the unidentified defendant associated with internet protocol address 162.237.76.248 used BitTorrent to download and distribute 29 of Strike 3’s copyrighted adult motion pictures. Strike 3 said it owns copyrights registered with the United States Copyright Office for movies distributed through its Blacked, Tushy, Vixen, and Blacked Raw brands. It alleged that its VXN Scan system made direct connections with the IP address and downloaded copies of the movies from the defendant. Strike 3 filed one copyright-infringement claim under the Copyright Act.

Strike 3 said it could not identify the individual associated with the IP address through its own efforts. It asked for permission to serve a subpoena under Federal Rule of Civil Procedure 45 on non-party AT&T U-verse, the internet-service provider, seeking only the name and address of the individual or individuals associated with the IP address.

Legal Standard

Federal Rule of Civil Procedure 26(d) permits early discovery before the parties’ required initial conference when appropriate. Courts in the Ninth Circuit generally require a showing of “good cause,” meaning that the need for expedited discovery, weighed against possible prejudice, supports allowing discovery before the usual schedule.

The court applied four factors for identifying an unnamed defendant: whether the plaintiff identified the defendant specifically enough to show that the person could be sued in federal court; whether the plaintiff described its efforts 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, it found that the allegations described an identifiable adult who likely was the primary subscriber or someone living with and known to the subscriber. The court also relied on Strike 3’s allegation that the downloads were traced to the Northern District of California.

Second, the court found that Strike 3 had described its efforts to identify the defendant and that the IP address alone was insufficient. Third, the court found that Strike 3 had sufficiently alleged a basic copyright-infringement claim: ownership of the copyrighted works and violation of at least one exclusive copyright-holder right, such as reproduction or distribution. Fourth, the court found that AT&T U-verse could likely identify the defendant through the IP address.

The court also issued a limited protective order because the subscriber might not be the person who committed the alleged infringement and because the allegations involved sensitive personal matters. Any information AT&T U-verse gave Strike 3 had to remain confidential until the subscriber had an opportunity to ask to proceed anonymously and the court ruled on that request. If the subscriber did not file such a request within 30 days after the information was disclosed 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.

Order

The court granted Strike 3’s ex parte motion for expedited discovery. Strike 3 could immediately serve AT&T U-verse with a Rule 45 subpoena, accompanied by the court’s order, seeking the Doe defendant’s true name and addresses.

AT&T U-verse had 30 days after service to notify the Doe defendant and provide the subpoena and order. The Doe defendant then had 30 days after service to file a motion challenging the subpoena, including a motion to quash or modify it. If no timely challenge was filed, AT&T U-verse would have 10 days to produce the requested information. The ISP had to preserve the information while any timely challenge was pending, confer with Strike 3 about production costs, and could not charge costs in advance of providing the information. Strike 3 could use the disclosed information only to protect its rights described in the complaint.