Strike 3 Holdings, LLC v. Doe
- John Tunheim
- 0:18-cv-00773
- U.S. District Court · District of Minnesota
- 10
In Strike 3 Holdings v. Doe, Judge Tunheim allowed early discovery from Comcast to identify an alleged copyright infringer and imposed privacy protections.
Strike 3 Holdings, LLC received permission to seek the name and address of the Comcast subscriber assigned to the specified internet protocol address. The unidentified subscriber received notice and an opportunity to object or seek anonymous treatment. Comcast was required to provide notice and could seek its own protective order.
What happened
Strike 3 Holdings, LLC sued John Doe, identified only by an internet protocol address, alleging that Doe downloaded and distributed 31 copyrighted movies using BitTorrent. Strike 3 could not serve Doe without learning the subscriber’s name and address from Comcast Cable Communications, LLC.
Strike 3 asked for permission to serve Comcast with a subpoena before the parties held their usual discovery-planning conference. A magistrate judge had denied that request because of concerns involving copyright law, cable-subscriber privacy protections, and the federal subpoena rule. Strike 3 appealed that decision.
Judge Tunheim granted Strike 3’s appeal, vacated the magistrate judge’s order, and granted permission to serve the subpoena. The order limited the information sought and required notice, time to object, and restrictions on publicly disclosing the subscriber’s identity.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 0:18-cv-00773
- John Tunheim
- Jan. 2, 2019
Background
Strike 3 Holdings, LLC alleged that John Doe, identified in the complaint by internet protocol address 24.7.203.5, infringed Strike 3’s copyrights by downloading and distributing 31 movies through BitTorrent. Strike 3 stated that a private investigator connected to the internet protocol address through BitTorrent and downloaded one or more of Strike 3’s copyrighted films. Strike 3 could not identify the person using the address because Comcast Cable Communications, LLC, the internet service provider, was the entity that could match the address to a subscriber’s name and address.
Strike 3 sought permission to serve Comcast with a third-party subpoena under Federal Rule of Civil Procedure 45 before the parties’ Rule 26(f) conference. A magistrate judge denied the request after considering an alleged tension among the Digital Millennium Copyright Act, the Communications Act, and Rule 45. Strike 3 appealed.
Court’s Analysis
The court held that the statutes did not prevent Strike 3 from seeking the information through a Rule 45 subpoena in an already-filed lawsuit. The court distinguished the Digital Millennium Copyright Act’s separate subpoena procedure and relied on Eighth Circuit authority recognizing that a copyright owner may file a lawsuit against an unidentified defendant and seek third-party discovery to learn that defendant’s identity.
The court applied a “good cause” standard, meaning that early discovery was appropriate when justified by the circumstances. It found that Strike 3 had stated an actionable copyright-infringement claim; requested only the subscriber’s name and address; had no alternative way to obtain that information; needed the information for the case to proceed; and had a need for the information that outweighed the subscriber’s privacy expectation. The court also noted that the subscriber might not be the person who committed the alleged infringement, although the subscriber might know who had access to the internet protocol address.
Disposition
Judge Tunheim granted Strike 3’s appeal and vacated Magistrate Judge David T. Schultz’s April 30, 2018 order. The court granted Strike 3’s motion for leave to serve a third-party subpoena on Comcast. The subpoena could seek only the name and address of the subscriber assigned to the specified internet protocol address during the alleged infringement period.
The order required at least 60 days’ notice before production. Comcast had to notify the subscriber within 14 calendar days after service, and the subscriber then had 45 calendar days from notice to seek a protective order or file another responsive pleading. 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. The court also required Strike 3 to file a status report by April 1, 2019, without identifying information.
Read the full 10-page opinion on CourtListener, the free public archive maintained by the Free Law Project.