Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 174.160.37.27

Background

Strike 3 Holdings, LLC alleged that someone using the Comcast Cable IP address 174.160.37.27 downloaded and distributed its copyrighted adult motion pictures through BitTorrent. Strike 3 said it owned copyrights in the movies, had traced downloads associated with the IP address to the Northern District of California, and had recorded infringement involving 79 movies over an extended period. It could not identify the individual associated with the IP address.

Strike 3 filed one copyright-infringement claim under the Copyright Act and then sought permission to serve Comcast with a third-party 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

The court explained that Federal Rule of Civil Procedure 26(d) allows early discovery before the parties’ required initial conference when appropriate. Courts generally require “good cause,” meaning that the need for expedited discovery outweighs potential prejudice to the responding party.

For discovery intended to identify an unknown defendant, the court considered whether Strike 3: (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 its efforts to locate and identify the defendant; (3) showed that its lawsuit could withstand a motion to dismiss; and (4) demonstrated that the discovery was reasonably likely to produce information allowing service of process.

Analysis

The court found that Strike 3 satisfied all four requirements. First, Strike 3 alleged that the Doe defendant directed a BitTorrent client to download and distribute the movies. The court said those allegations indicated that the defendant was an identifiable adult who was likely either the primary subscriber or someone who lived with and was known to the subscriber. The court also found that tracing the downloads to this district supported jurisdiction over the defendant and the federal copyright claim.

Second, the court found that Strike 3 had described its efforts to identify the defendant and explained why the IP address alone was insufficient. Third, the court concluded that Strike 3 had sufficiently alleged a prima facie copyright-infringement claim. That required allegations that Strike 3 owned the copyrighted material and that the alleged infringer violated an exclusive copyright right, such as the right to reproduce or distribute the work. Fourth, the court found that Comcast could likely identify the Doe defendant through the IP address.

Protective Order

The court issued a limited protective order because the ISP subscriber might not be the person who infringed the copyrights and because the allegations involved sensitive and personal matters. Strike 3 could not publicly disclose information Comcast provided about the Doe defendant until the defendant had an opportunity to ask to proceed anonymously and the court ruled on that request.

The protective order would expire if the Doe defendant did not file a request to proceed anonymously within 30 days after the information was disclosed to Strike 3’s counsel. If the defendant included identifying information in such a request, the court permitted the relevant papers to be filed under seal until it could rule on the request.

Disposition

The court granted Strike 3’s ex parte motion for expedited discovery. Strike 3 could immediately serve Comcast with a Rule 45 subpoena seeking the Doe defendant’s true name and addresses, with a copy of the order attached.

Comcast had 30 days after service to provide the Doe defendant with the subpoena and order. The Doe defendant then had 30 days after service to file a motion contesting the subpoena, including a motion to quash or modify it. If the defendant did not timely challenge the subpoena, Comcast would have 10 days to produce the responsive information. The subpoenaed entity had to preserve the information while any timely motion to quash was pending.

The order also required Strike 3 to serve the order with any subpoena, limited use of the disclosed information to protecting Strike 3’s rights asserted in the complaint, and imposed requirements concerning any production charges by the ISP. The order authorized discovery only; it did not decide the merits of the copyright-infringement claim.