Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 99.45.175.11

Background

Strike 3 Holdings, LLC alleged that a user associated with IP address 99.45.175.11 distributed 59 of Strike 3’s copyrighted films through BitTorrent without authorization. Strike 3 could identify the IP address but not the account owner. It sued the unknown defendant and sought permission to serve an early third-party subpoena on the internet service provider associated with the address. The factual allegations were treated as true for purposes of the motion.

The court recognized concerns that Strike 3’s lawsuits could pressure possibly innocent account owners to settle because of the subject matter and the cost of defending a copyright case. The court also noted that an IP address may be shared by many people and that being the account holder does not itself establish infringement. But the court concluded that those concerns did not allow it to deny the subpoena at this stage.

Legal Standard and Analysis

Under Federal Rule of Civil Procedure 26(d), a court may allow discovery before the parties’ required conference when there is good cause. Courts generally consider whether the need for early discovery outweighs prejudice to the responding party. The court applied factors concerning whether the plaintiff identified the Doe defendant with enough specificity, tried other ways to locate the defendant, stated a claim that could survive dismissal, and sought information reasonably likely to identify the defendant for service.

The court found that Strike 3 satisfied those factors. It reasoned that Ninth Circuit precedent supports limited discovery to identify an unknown alleged copyright infringer and that the requested subpoena was necessary to learn the defendant’s identity. The court stated that copyright protection applies to pornography, that the account holder’s connection to the IP address does not itself prove infringement, and that the allegations must be assumed true at this stage. The court also stated that Strike 3’s litigation pattern could be judicially noticed but could not support denial of the subpoena.

Protective Measures and Disposition

The court granted Strike 3’s motion and gave it leave to serve a Rule 45 subpoena on AT&T Internet for the defendant’s true name and address. Strike 3 must attach the order to the subpoena. The order also permits subpoenas to other internet service providers identified in response to the initial subpoena.

The court required several protections. The provider must send the order to the subscriber, or Strike 3 must do so before or at the same time as any other communication if the provider declines. Strike 3 must file an affidavit confirming that it proposed confidentiality to the defendant, including relevant communications. Strike 3 may use the subpoenaed information only to protect and enforce its rights in the complaint and may not publicly disclose it without court permission at least until the Doe defendant has had an opportunity to seek permission to proceed anonymously or further discovery has occurred. References to the defendant’s identity must be redacted and filed under seal. The provider must preserve the subpoenaed information while any timely motion to dismiss is pending and may not demand advance payment for production, although it may later provide billing information supporting any claimed costs.

Judge Richard Seeborg, Chief United States District Judge, signed the order. The ruling authorized identity-related discovery and protective conditions; it did not resolve whether the unknown subscriber committed copyright infringement.