Strike 3 Holdings v. John Doe subscriber assigned IP address 107.193.185.136

Background

Strike 3 Holdings alleged that it owns copyrights registered with the U.S. Copyright Office for certain adult motion pictures. It alleged that the unidentified defendant used BitTorrent to download and distribute copies of those movies without authorization, and that 31 movies were involved over an extended period.

Strike 3 alleged that its investigation connected the activity to IP address 107.193.185.136. It further alleged that MaxMind’s geolocation service identified AT&T as the internet service provider and owner associated with that address. Strike 3 sought permission to serve AT&T with a subpoena requesting the name and physical address of the person or people whose account was associated with the IP address.

Because the defendant had not been identified or served, no opposition to the application was filed.

Early Discovery

Federal Rule of Civil Procedure 26(d)(1) generally limits when discovery may begin, but permits a court to authorize discovery before the parties’ required Rule 26(f) conference. The court applied the “good cause” standard, which asks whether the need for expedited discovery, considering the administration of justice, outweighs prejudice to the responding party.

The court applied four factors concerning discovery intended to identify an unknown defendant:

The court found that all four factors favored Strike 3 Holdings. It found that the allegations about BitTorrent activity sufficiently suggested that the defendant was an identifiable person and that the court likely had jurisdiction. It also found that Strike 3 had described efforts including web searches, reviews of sources, and consultations with investigators and cybersecurity consultants.

The court concluded that the complaint sufficiently pleaded copyright infringement for purposes of this discovery request. It emphasized that this conclusion did not decide the ultimate merits of the copyright case. The court also found that AT&T was likely to have information linking the IP address to a subscriber and that the narrow subpoena was likely to produce identifying information.

The court therefore GRANTED Strike 3 Holdings’ application for leave to serve the limited third-party subpoena on AT&T before the Rule 26(f) conference. The opinion did not hold that the subscriber was the infringer or that copyright infringement had been proved.

Protective Order

The court separately considered whether to protect the privacy of the person identified by AT&T. It noted that the person identified might be the defendant or a third party who paid for the internet service but was not responsible for the alleged activity. It also found that the subject matter—alleged illegal downloading of adult motion pictures—created a risk of annoyance and embarrassment and involved sensitive personal information.

The court therefore ISSUED a limited protective order. Any information AT&T produces in response to the subpoena must be treated as confidential by all parties. That protection continues until the court rules on a motion by the defendant or another affected third party seeking continued confidentiality or permission to proceed anonymously.

If the defendant or another affected third party does not file a motion to proceed anonymously within 30 days after receiving notice that AT&T produced the information, Strike 3 Holdings may ask the court to withdraw or modify the protective order. If an anonymity request includes identifying information, the court ordered that the papers be filed under seal until it has an opportunity to rule on the request.

Disposition

Judge Peter H. Kang GRANTED Strike 3 Holdings’ ex parte application for leave to serve the limited subpoena and ISSUED the limited protective order. The order addressed early discovery and confidentiality; it did not resolve the underlying copyright-infringement allegations.