Strike 3 Holdings v. John Doe subscriber assigned IP address 73.252.233.110

Background

Strike 3 Holdings, LLC alleged that the unidentified defendant using Comcast IP address 73.252.233.110 downloaded and distributed 24 of Strike 3’s copyrighted adult motion pictures through BitTorrent. Strike 3 alleged that its detection system made direct connections with the IP address, downloaded files containing copies of its movies, and confirmed the files through BitTorrent information hashes. Strike 3 filed one claim for copyright infringement under the Copyright Act.

Strike 3 said it could not identify the individual associated with the IP address and asked for permission to serve Comcast, a non-party internet-service provider, 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 a court to authorize discovery before the parties’ usual initial discovery conference. Courts in the Ninth Circuit generally require a showing of “good cause,” meaning that the need for early discovery outweighs potential prejudice to the responding party.

The court applied four factors: whether the plaintiff identified the Doe 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 locate and 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 held that Strike 3 satisfied all four factors. First, the allegations that the Doe defendant directed BitTorrent downloads and distributed the movies identified an individual who could likely be the primary subscriber or someone residing with and known to the subscriber. The court also noted that the downloads had been traced to the Northern District of California.

Second, Strike 3 described its efforts to identify the defendant and explained that the IP address alone was not enough. Third, the court found that Strike 3 had sufficiently alleged a preliminary claim for direct copyright infringement by alleging ownership of the copyrights and unauthorized copying and distribution. Fourth, the court found that Comcast could identify the defendant through the IP address.

Protective Order and Disposition

The court also issued a limited protective order because the ISP subscriber might not be the person who committed the alleged infringement and because allegations involving the downloading of adult movies could involve sensitive personal information. Information Comcast provided to Strike 3 must remain confidential 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 seek anonymous status within 30 days after the information is disclosed to Strike 3’s counsel, the limited protection will expire. Any identifying information included in an anonymity request may be filed under seal.

The court GRANTED Strike 3’s Ex Parte Motion for Expedited Discovery. Strike 3 may immediately serve Comcast with a Rule 45 subpoena seeking the Doe defendant’s true name and addresses. Comcast must notify the Doe defendant within 30 days after service. The Doe defendant then has 30 days after receiving notice to challenge the subpoena, including by asking the court to quash or modify it. If no timely challenge is filed, Comcast has 10 days to provide the requested information. The subpoenaed information may be used only to protect Strike 3’s rights in the lawsuit.

Judge Laurel Beeler signed the order as a United States Magistrate Judge.