Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 98.45.227.134

Background

Strike 3 Holdings, LLC alleged that a person using Comcast Cable’s internet service and the IP address 98.45.227.134 used BitTorrent to download and distribute more than 30 of Strike 3’s copyrighted adult motion pictures. Strike 3 said it owned and had registered the copyrights. It used geolocation technology to trace the downloads to a physical address in the Northern District of California but could not identify the individual.

Strike 3 had filed one copyright-infringement claim under the Copyright Act. It then asked for permission to serve Comcast Cable, a nonparty, with an early subpoena under Federal Rule of Civil Procedure 45. Strike 3 sought only the name and address associated with the IP address and said it would use the information to prosecute the claims in the complaint.

Court’s analysis

Before the usual conference between the parties under Rule 26, a court may allow early discovery when there is good cause. The court applied four factors: whether the unidentified defendant was described specifically enough to be sued in federal court; whether the plaintiff had taken steps to identify the defendant; whether the complaint stated a claim that could survive a motion to dismiss; and whether the requested discovery was reasonably likely to produce information allowing service of process.

The court found that Strike 3 satisfied all four factors. It concluded that the allegations and the asserted need for human interaction to use BitTorrent identified a real person with sufficient specificity. It also found that Strike 3 had described its efforts to identify the person, that the complaint presented a prima facie copyright-infringement claim, and that Comcast could likely identify the person through the IP address.

The court separately addressed privacy concerns. It noted that the internet-service subscriber might not be the person who allegedly infringed the copyrights and could be an innocent third party. It also found that allegations involving the downloading of adult motion pictures concerned a sensitive and highly personal matter.

Order

The court granted Strike 3’s ex parte application for an early Rule 45 subpoena. Strike 3 could immediately serve Comcast Cable with a subpoena seeking only the true name and address associated with the identified IP address.

Comcast had to serve the Doe defendant with the subpoena and the order within 30 days after service. The Doe defendant then had 30 days to challenge the subpoena, including by asking the court to quash or modify it. If no challenge was filed, Comcast had to provide the responsive information to Strike 3 within 10 days after that period ended. Comcast also had to preserve the information until producing it or until the court ruled on a challenge.

The court also issued a protective order. Strike 3 could use the subpoenaed information only to prosecute the action and protect the rights alleged in the complaint. It could not disclose the Doe defendant’s name or address to a third party without court permission. Any public filing containing the identifying information had to redact it, with the unredacted version filed under seal under the local rules. The opinion states that the limited protective order would expire if the Doe defendant failed to file a motion for counsel.