Strike 3 Holdings v. John Doe subscriber assigned IP address 73.231.137.127

Background

Strike 3 Holdings, LLC alleged that the person using Comcast Cable IP address 73.231.137.127 used BitTorrent to download and distribute 24 of Strike 3’s copyrighted adult motion pictures. Strike 3 alleged that it owned the copyrights, that the movies were registered with the United States Copyright Office, and that its VXN Scan system downloaded copies of the movies from the IP address. Strike 3 had not identified the individual associated with the address.

Strike 3 filed one copyright-infringement claim against the Doe defendant. It then asked for permission to serve Comcast Cable, 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 or addresses 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 the 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, it found that the allegations about downloading and distributing the movies through BitTorrent sufficiently identified a person who could be sued. The court also noted Strike 3’s allegation that the downloads were traced to the Northern District of California.

Second, the court found that Strike 3 had described its efforts to identify the defendant and that the IP address alone was not enough to identify the person. Third, the court concluded that the copyright claim could withstand a motion to dismiss because Strike 3 alleged ownership of the copyrights and alleged that the defendant copied and distributed the works without permission. 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 person who infringed the copyrights and because the allegations involved sensitive, personal matters. Information Comcast provides to Strike 3 must remain confidential and may not be publicly disclosed 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 file such a request within 30 days after the information is disclosed to Strike 3’s counsel, the limited protective order will expire. If the Doe defendant includes identifying information in a request to proceed anonymously, the court will allow the relevant papers to be filed under seal until it can rule on the request.

Disposition

The court granted Strike 3’s Ex Parte Motion for Expedited Discovery. Strike 3 may immediately serve Comcast Cable with a Rule 45 subpoena seeking the Doe defendant’s true name and addresses, and must attach the court’s order.

Comcast must notify the Doe defendant within 30 days after being served. The Doe defendant then has 30 days after service to file a motion contesting the subpoena, including a motion to quash or modify it. If no timely challenge is filed, Comcast has 10 days to provide the responsive information to Strike 3. Comcast must preserve the subpoenaed information while any timely challenge is pending, and information produced may be used only to protect Strike 3’s rights described in its complaint.