Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 24.6.36.109

Background

Strike 3 Holdings, LLC alleged that the person using Comcast Cable IP address 24.6.36.109 downloaded and distributed 24 of Strike 3’s copyrighted adult motion pictures through BitTorrent. Strike 3 said it owns the copyrights to the movies, which are registered with the United States Copyright Office, and that it did not authorize their distribution. Using its VXN Scan system, Strike 3 reported establishing direct connections with the IP address, downloading files from it, and confirming the files through BitTorrent’s identifying data.

Strike 3 filed one copyright-infringement claim against the unidentified defendant. Because its own efforts had not revealed the person’s identity, Strike 3 asked for permission to serve Comcast with a subpoena under Federal Rule of Civil Procedure 45. 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) permits early discovery before the parties’ usual discovery-planning conference 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 identifying an unknown defendant through early discovery: whether the plaintiff identified the defendant specifically enough to show that the defendant is a real person who can be sued in federal court; whether the plaintiff described its efforts to identify the defendant; 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 found 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 specific enough for the court to conclude that the defendant was an identifiable adult who might be the primary subscriber or someone residing with and known to the subscriber. Strike 3 had also traced the downloads to the Northern District of California, giving the court jurisdiction over the defendant and the federal copyright claim.

Second, Strike 3 described its efforts to identify the defendant and explained that the IP address alone was insufficient. Third, the court found that Strike 3 had adequately alleged a preliminary copyright-infringement claim: ownership of the copyrighted works and violation of at least one exclusive copyright right, including reproduction or distribution. Fourth, the court found that Comcast could likely identify the defendant through the IP address.

Protective Order

The court issued a limited protective order because the subscriber might not be the actual infringer and because the allegations involved sensitive personal matters. Strike 3 could not publicly disclose information provided by Comcast 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.

If the Doe defendant included identifying information in a request to proceed anonymously, the court ordered that the papers be filed under seal until it could rule on the request. The court also stated that Strike 3 would receive an opportunity to respond.

Disposition

The court granted Strike 3’s ex parte motion for expedited discovery. It authorized Strike 3 to immediately serve Comcast Cable with a Rule 45 subpoena, accompanied by a copy of the order, seeking the Doe defendant’s true name and addresses.

The order gave Comcast 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 issuing court to cancel or modify it. If no timely challenge was filed, Comcast would have 10 days to provide the requested information. Comcast was required to preserve subpoenaed information while any timely challenge was pending.

The order also required Comcast to confer with Strike 3 and barred advance charges for producing the information, while allowing Comcast to seek production costs through a billing summary and supporting cost reports. Strike 3 had to serve the order with any subpoena, and it could use information produced under the subpoena only to protect the rights asserted in its complaint.