Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 162.228.91.21

Background

Strike 3 Holdings, LLC alleged that the person using AT&T Internet IP address 162.228.91.21 downloaded and distributed 28 of Strike 3’s copyrighted adult motion pictures through BitTorrent. Strike 3 said its detection system made direct connections with the IP address and downloaded files containing copies of its movies. It also alleged that geolocation technology traced the downloads to a physical address in the Northern District of California.

Strike 3 filed one copyright-infringement claim against the unidentified defendant. Because Strike 3 could not determine the individual’s identity from the IP address alone, it asked for permission to serve AT&T Internet with an early subpoena under Federal Rule of Civil Procedure 45. The requested information was limited to the name and address of the individual or individuals associated with the IP address.

Analysis

The court applied the good-cause standard generally used for discovery before the parties’ initial discovery conference. It examined whether Strike 3 had: (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 efforts to locate and identify the defendant; (3) shown that its complaint could withstand a motion to dismiss; and (4) shown that the requested discovery was reasonably likely to produce information allowing service of process.

The court found that Strike 3 satisfied all four requirements. The allegations indicated that the user directed a BitTorrent client to download the files and therefore was an identifiable adult who was likely either the primary subscriber or someone living with and known to the subscriber. The court also found that Strike 3 had adequately alleged ownership of the copyrighted movies and unauthorized downloading and distribution, which was enough at this stage to state a prima facie copyright-infringement claim. The court did not decide whether the Doe defendant ultimately infringed Strike 3’s copyrights.

Protective order and disposition

Because the subscriber might not be the person who committed the alleged infringement and because the case involved sensitive personal matters, the court imposed a limited protective order. Information AT&T provided 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. Identifying information included in an anonymity request could be filed under seal.

The court granted Strike 3’s ex parte motion for expedited discovery. Strike 3 could immediately serve AT&T Internet with a Rule 45 subpoena seeking the Doe defendant’s true name and addresses. AT&T had 30 days after service to notify the Doe defendant. The Doe defendant then had 30 days after service to challenge the subpoena, including by asking to quash or modify it. If no timely challenge was filed, AT&T would have 10 days to provide the responsive information. The subpoenaed entity had to preserve the information while any timely challenge was pending, and any disclosed information could be used only to protect Strike 3’s rights described in the complaint.