Strike 3 Holdings v. John Doe subscriber assigned IP address 67.188.109.133
- Laurel Beeler
- 3:23-cv-01128
- U.S. District Court · Northern District of California
- 8
In Strike 3 Holdings v. John Doe, Judge Beeler granted expedited discovery allowing a subpoena to Comcast for the unidentified subscriber’s name and address.
Strike 3 Holdings, LLC may subpoena Comcast Cable for the name and addresses associated with IP address 67.188.109.133. The unidentified subscriber may challenge the subpoena and may ask to proceed anonymously; Comcast must follow the notice, preservation, and production requirements in the order.
What happened
Strike 3 Holdings, LLC sued John Doe Subscriber Assigned IP Address 67.188.109.133, alleging that the person using the address copied and distributed its copyrighted adult movies through BitTorrent. Strike 3 could not identify the person from the IP address alone.
Strike 3 asked to serve Comcast Cable, the internet provider, with a subpoena seeking the name and addresses associated with the IP address. The court found that Strike 3 had shown good cause because it had identified a possible defendant, described its efforts to locate that person, stated a copyright claim that could proceed, and shown that Comcast was likely to have identifying information.
Judge Beeler granted Strike 3’s request for expedited discovery and allowed the subpoena. The court also limited how the information could be used and required it to remain confidential while the Doe defendant had an opportunity to challenge the subpoena or ask to proceed anonymously.
The detailed version
- Strike 3 Holdings v. John Doe subscriber assigned IP address 67.188.109.133 · No. 3:23-cv-01128
- Laurel Beeler
- Apr. 5, 2023
Background
Strike 3 Holdings, LLC alleged that the person using Comcast Cable IP address 67.188.109.133 infringed copyrights in several adult motion pictures. According to the allegations, the person used BitTorrent to download and distribute the movies. Strike 3 said its detection system established direct connections with the IP address, downloaded files containing copies of its movies, and confirmed the files through BitTorrent identifying data. Strike 3 alleged that the address had been recorded infringing 32 movies over an extended period and that Strike 3 had not authorized the distribution.
Strike 3 filed one copyright-infringement claim against the unidentified defendant. It then filed an ex parte application, meaning an application made without first requiring the opposing party to respond, asking for permission to serve Comcast with a third-party subpoena. The requested subpoena was limited to the name and address of the individual or individuals associated with the IP address.
Legal Standard
Federal Rule of Civil Procedure 26(d) allows a court to authorize discovery before the parties’ usual initial discovery conference when appropriate. Courts in the Ninth Circuit generally require a showing of good cause. For a request to identify an unknown defendant, the court considered whether Strike 3: (1) identified the Doe defendant specifically enough to show that the defendant was a real person who could be sued in federal court; (2) described its efforts to identify the defendant; (3) showed that its complaint could withstand a motion to dismiss; and (4) showed that the requested discovery was reasonably likely to produce information allowing service of process.
Analysis
The court held that Strike 3 satisfied all four requirements. First, the allegations that the Doe defendant directed a BitTorrent client to download and distribute the movies were sufficient to identify an apparently real person. The court noted that the person could be the primary subscriber or someone who lived with and was known to the subscriber. The alleged downloads had also been traced to the Northern District of California.
Second, Strike 3 described its efforts to identify the person and explained that the IP address alone was not enough. Third, the court concluded that the copyright claim could withstand a motion to dismiss. Strike 3 alleged ownership of the copyrights and alleged that the defendant copied and distributed the movies without permission, which the court found sufficient to state a preliminary copyright-infringement claim. Fourth, the court found that Comcast was reasonably likely to identify the person associated with the IP address.
Protective Order
The court issued a limited protective order because the subscriber might not be the person who infringed the copyrights and because the allegations involved sensitive personal matters. Information Comcast released to Strike 3 could not be publicly disclosed 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 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 provided for sealed filings if the Doe defendant included identifying information in an anonymity request.
Disposition
Judge Laurel Beeler granted Strike 3’s ex parte motion for expedited discovery. Strike 3 could immediately serve Comcast with a Rule 45 subpoena seeking the Doe defendant’s true name and addresses. Comcast had 30 days after service to notify the Doe defendant. The Doe defendant then had 30 days after receiving notice to challenge the subpoena, including by asking the court to cancel or modify it. If no timely challenge was filed, Comcast would have 10 days to provide the responsive information. The subpoenaed entity had to preserve the information while any timely challenge was pending, and Strike 3 could use the disclosed information only to protect its rights described in the complaint. The order did not decide whether the Doe defendant actually infringed Strike 3’s copyrights.
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.