Strike 3 Holdings v. John Doe subscriber assigned IP address 174.160.255.156

Background

Strike 3 Holdings, LLC filed one claim for direct copyright infringement. It alleged that the unknown defendant associated with IP address 174.160.255.156 used BitTorrent to download and distribute about 24 media files containing Strike 3’s copyrighted adult movies. Strike 3 sought an injunction and statutory damages.

Because the defendant was identified only by an IP address, Strike 3 asked for permission to serve Comcast Cable, a non-party internet service provider, with a subpoena before the parties’ required conference about managing the case. Strike 3 sought the defendant’s name and address.

The court discussed Strike 3’s history of filing similar lawsuits and seeking subscriber information from internet service providers. It also described concerns that an account holder may not be the person who committed the alleged infringement and that subscribers may feel pressured to settle quickly to avoid public association with the material or the expense of legal representation.

Legal Standard

Federal Rule of Civil Procedure 26(d) permits a court to authorize discovery before the usual conference when justified by the parties’ and witnesses’ convenience and the interests of justice. Courts in the Ninth Circuit generally require “good cause,” meaning that the need for expedited discovery must outweigh the possible harm to the responding party.

The court applied four factors for identifying an unknown defendant through early discovery: whether the plaintiff identified a real person who could be sued in federal court; whether the plaintiff described reasonable efforts to identify that person; whether the complaint could withstand an initial motion to dismiss; and whether the requested discovery was reasonably likely to produce information allowing service of the complaint.

Court’s Analysis

The court found that Strike 3 satisfied all four factors. It accepted Strike 3’s allegations that BitTorrent activity required a human user to share movies and that its technology traced the IP address to a location within the district. Strike 3 also described using geolocation and infringement-detection technology, web searches, computer investigators, and cybersecurity consultants to try to identify the defendant.

The court further found that Strike 3 had preliminarily shown a direct copyright-infringement claim. Strike 3 alleged that it owned the copyrights and that the defendant downloaded, copied, and distributed the movies without permission. Accepting those allegations as true for this stage, the court concluded that the complaint could withstand a motion to dismiss. It also found that Comcast was reasonably likely to have information connecting the IP address to the subscriber.

Protective Measures and Disposition

The court GRANTED Strike 3’s application for leave to serve a third-party subpoena before the required conference. Within 21 days, Strike 3 MAY serve Comcast with a subpoena requiring it to provide the true name and address of the person to whom Comcast assigned the specified IP address. Strike 3 must attach a copy of the order to the subpoena. The order also permits a similar subpoena to another internet service provider identified in response to the subpoena.

The internet service provider must serve the Doe subscriber with a copy of the subpoena and the order within 30 days after receiving the subpoena. The subscriber then MAY file a motion to contest, quash, or modify the subpoena within 30 days after service. The subscriber MAY also ask to proceed under a pseudonym and have identifying information filed under seal.

If the subscriber does not contest the subpoena within 30 days, the provider may produce responsive information within 10 days. Strike 3 may use the information only to protect and enforce the rights asserted in the complaint and may not publicly disclose it without the court’s permission. References to the subscriber’s identity must remain redacted and sealed until further order. The provider must preserve subpoenaed information while any timely motion to dismiss is being resolved.