Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 67.174.240.13

Background

Strike 3 Holdings, LLC alleged that the person using Comcast Cable’s internet-protocol address 67.174.240.13 downloaded and distributed 24 of Strike 3’s copyrighted adult motion pictures through BitTorrent. Strike 3 said it owns registered copyrights in the movies and that its detection system connected to the IP address, downloaded copies of the movies from it, and confirmed the files using BitTorrent identification data. Strike 3 filed one copyright-infringement claim but did not know the defendant’s identity.

Strike 3 asked for permission to serve Comcast, a non-party internet-service provider, with a subpoena under Federal Rule of Civil Procedure 45. The requested information was limited to the name and address of the individual or individuals associated with the IP address.

Legal standard

Before the parties’ usual initial discovery conference, a court may allow early discovery when good cause exists. Courts evaluating a request to identify an unknown defendant consider whether the plaintiff has: (1) identified the defendant specifically enough to show that the defendant is a real person who can be sued in federal court; (2) described the steps taken to identify the defendant; (3) shown that the complaint could withstand a motion to dismiss; and (4) shown that the requested discovery is reasonably likely to lead to information allowing service of process.

Court’s analysis

The court held that Strike 3 satisfied all four requirements. It found that the allegations identified a potentially real person who downloaded and distributed the movies and that tracing the downloads to the Northern District of California supported jurisdiction over the defendant and the federal copyright claim. The court also found that an IP address alone was not enough for Strike 3 to identify the person.

The court further held that Strike 3 had adequately alleged a preliminary copyright-infringement claim because it alleged ownership of the copyrights and unauthorized downloading and distribution of the movies. The court did not decide whether the Doe defendant actually infringed the copyrights. It found that Comcast was reasonably likely to have information identifying the person associated with the IP address.

Protective order

Because the internet subscriber might not be the person who committed the alleged infringement, and because the allegations involved sensitive and personal matters, the court issued a limited protective order. 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 protection expires. Any identifying information included in an anonymity request may 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 for the Doe defendant’s true name and addresses, attaching the order. Comcast must notify the Doe defendant within 30 days after service. The Doe defendant then has 30 days after receiving notice to file a motion challenging the subpoena, including a motion to quash or modify it. If no timely challenge is filed, Comcast has 10 days to provide the responsive information to Strike 3.

The subpoenaed entity must preserve the information while any timely challenge is pending. The internet-service provider must confer with Strike 3 about production costs and may not charge those costs in advance. Strike 3 may use information disclosed in response to the subpoena only to protect the rights described in its complaint.