Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.162.78.213

Background

Strike 3 Holdings, LLC alleged that the unidentified defendant associated with IP address 73.162.78.213 used BitTorrent to download and distribute 25 of Strike 3’s copyrighted adult motion pictures. Strike 3 said it owns the copyrights, that the works are registered with the United States Copyright Office, and that it had not authorized the distribution. Strike 3 used its VXN Scan system to connect with the IP address and download files that its investigation identified as copies of its movies.

Strike 3 filed one copyright-infringement claim under the Copyright Act. Because Strike 3 could not identify the person using the IP address, it asked for early discovery: permission to serve a Federal Rule of Civil Procedure 45 subpoena on Comcast Cable, the internet-service provider associated with the address. The subpoena was limited to obtaining the true name and addresses of the individual or individuals associated with the IP address.

Good Cause for Early Discovery

The court applied the four-factor test generally used in the Ninth Circuit for early discovery to identify an unknown defendant. The plaintiff must: identify the unknown defendant specifically enough to show that the person is real and can be sued in federal court; describe efforts to locate and identify the person; show that the claim could survive a motion to dismiss; and show that the requested discovery is reasonably likely to produce information allowing service of process.

The court found that Strike 3 satisfied all four requirements. First, the allegations that the person directed a BitTorrent client to download and distribute the movies sufficiently identified a real person who could be sued. The court also found that tracing the downloads to the Northern District of California supported jurisdiction over the defendant and the federal copyright claim. Second, Strike 3 explained that the IP address did not itself identify the person. Third, the court found that Strike 3 had sufficiently alleged a basic copyright-infringement claim by alleging ownership of the movies and unauthorized copying and distribution. Fourth, the court found that Comcast could likely identify the person through the IP address.

Protective Order

The court issued a limited protective order because the internet subscriber might not be the person who infringed the copyrights and because the allegations concerned sensitive and personal matters. Information Comcast disclosed 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 defendant did not file such a request within 30 days after the information was disclosed to Strike 3’s counsel, the limited protection would expire. The court also allowed identifying information in an anonymity request to be filed under seal while it considered that request.

Order

The court 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, and it had to attach the order to the subpoena. Comcast would have 30 days after service to notify the Doe defendant. The Doe defendant would then have 30 days to challenge the subpoena, including by asking the issuing court to quash or modify it. If no timely challenge was filed, Comcast would have 10 days to provide the responsive information to Strike 3.

The subpoenaed entity had to preserve the information while any timely challenge was pending. It also had to confer with Strike 3 before charging production costs and provide billing and cost information if it charged for production. Any information disclosed under the subpoena could be used only to protect Strike 3’s rights described in its complaint. The order authorized discovery and did not decide whether the Doe defendant actually infringed Strike 3’s copyrights.