Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that an unnamed defendant, identified in the complaint by an internet protocol address, infringed Strike 3’s copyrights by downloading and distributing 59 motion pictures. Strike 3 sought permission to serve Comcast Cable Communications, LLC, the subscriber’s internet service provider, with a third-party subpoena before the parties held the conference normally required before discovery begins. The subpoena sought the name and address of the subscriber assigned to the identified internet address during the periods of the alleged infringement.

Magistrate Judge David T. Schultz denied the request. He found that the discovery raised a conflict among the Digital Millennium Copyright Act, the Communications Act, and Federal Rule of Civil Procedure 45, and concluded that the conflict required denying the request after weighing Strike 3’s property interest against the subscriber’s privacy interest.

Court’s analysis

Strike 3 objected to Magistrate Judge Schultz’s order and argued that the Communications Act permits disclosure of subscriber information under a court order, provided the subscriber is notified. Because the order effectively determined whether the case could proceed, the district court reviewed the matter anew, while noting that the result would be the same under the more deferential standard ordinarily applied to this type of magistrate-judge order.

The court used the five-factor framework from Arista Records for expedited discovery to identify an alleged anonymous copyright infringer: (1) whether the plaintiff made a concrete showing of a potentially actionable claim, (2) whether the request was specific, (3) whether alternative ways existed to obtain the information, (4) whether the information was needed to advance the claim, and (5) the objecting party’s expectation of privacy.

The court found good cause for early discovery. It concluded that Strike 3 had stated an actionable copyright-infringement claim; the request was specific because it sought only the subscriber’s name and address; no alternative means of obtaining the information existed; the case could not proceed without identifying information; and Strike 3’s right to use the court process outweighed the subscriber’s expectation of privacy. The court acknowledged that the subscriber assigned to the internet address might not be the actual infringer and that the subject matter created special privacy concerns.

The court also explained that the Digital Millennium Copyright Act did not authorize a subpoena to identify an alleged infringer through an internet service provider acting only as a conduit, but the statute did not prohibit discovery through Federal Rule of Civil Procedure 45. The court concluded that the Communications Act’s privacy protections did not prevent the subpoena because the requested disclosure could be made under a court order with notice to the subscriber.

Order and protective conditions

The court granted Strike 3 Holdings, LLC’s appeal of Magistrate Judge Schultz’s April 30, 2018 order and vacated that order. It granted Strike 3’s motion for leave to serve a third-party subpoena before the Rule 26(f) conference, subject to these conditions:

- Strike 3 could subpoena Comcast for the name and address of the subscriber assigned to the identified internet address during the periods of the alleged infringing activity. - The subpoena had to provide at least 60 days’ notice before production and could seek only one category of documents identifying the particular subscriber. - Comcast had 14 calendar days after service to notify the subscriber. - The subscriber then had 45 calendar days after notice to seek a protective order or file another response. - Strike 3 had to serve a copy of the court’s order with the subpoena, and Comcast had to provide a copy with its notice. - No other discovery was authorized at that time. - Strike 3 could not publicly disclose the information until the subscriber had an opportunity to ask to proceed anonymously and the court ruled on that request. If the subscriber included identifying information in the request, the papers could be temporarily filed under seal while the court considered the request. - Strike 3 had to file a status report by December 1, 2018, without identifying information.

The order therefore authorized limited early identification discovery; it did not decide whether John Doe committed copyright infringement.