Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 76.156.177.235

Background

Strike 3 Holdings, LLC filed twenty-one similar copyright-infringement cases against unidentified John Doe defendants. In the case addressed here, the defendant was identified in the caption by the IP address 76.156.177.235. Strike 3 alleged that the defendant used the BitTorrent file-distribution protocol to download and distribute Strike 3’s copyrighted movies without authorization.

Strike 3 said its infringement-detection system identified alleged distribution from the IP address, but Strike 3 could not identify the person using the address. Strike 3 alleged that the internet service provider could identify the subscriber associated with that address. It therefore asked for permission to serve a third-party subpoena on the provider before the parties held the conference required by Federal Rule of Civil Procedure 26(f). The requested discovery was intended to obtain the subscriber’s identity, investigate the alleged infringement, and serve the defendant.

Legal standard

The court explained that discovery generally cannot begin before the Rule 26(f) conference unless a rule, agreement, or court order permits it. Because the defendants’ identities were unknown, the court applied a good-cause standard. Under that standard, the need for early discovery must outweigh the responding party’s potential prejudice.

The court applied five factors commonly used in similar cases: whether the plaintiff made a concrete initial showing of a legally actionable claim; whether the discovery request was specific; whether other ways existed to obtain the information; whether the information was needed to advance the claim; and the defendant’s expectation of privacy.

Court’s analysis

The court found that Strike 3 had sufficiently alleged copyright infringement by claiming ownership of copyrighted works, unauthorized copying and distribution by each defendant, and lack of authorization. The court also found that the discovery request was specific because it sought only each subscriber’s name and address. The court concluded that no alternative method was available to obtain the information and that the cases could not proceed without identifying the defendants.

The court recognized that the subscriber associated with an IP address might not be the person who committed the alleged infringement. It also recognized that the allegations involved sensitive and potentially embarrassing subject matter. The court nevertheless concluded that, with privacy protections, Strike 3’s ability to pursue its copyright claims outweighed the subscribers’ privacy expectations.

Order and limits

The court granted Strike 3’s ex parte motion for permission to serve a third-party subpoena before the Rule 26(f) conference in each of the twenty-one cases, including No. 23-cv-3271.

For the case involving IP address 76.156.177.235, the order permits Strike 3 to serve a subpoena under Federal Rule of Civil Procedure 45 on the defendant’s internet service provider. The subpoena may seek only the name and address of the subscriber assigned to the IP address during the periods of the alleged infringement identified in the complaint.

The subpoena must give at least sixty days’ notice before production is required and must be limited to one category of documents identifying the subscriber. The provider may seek a protective order if it has a legitimate basis to do so. Within fourteen calendar days after receiving the subpoena, the provider must notify the subscriber. The subscriber then has forty-five calendar days from the notice date to seek a protective order, file a responsive pleading, or do both.

Strike 3 must serve the order with the subpoena, and the provider must give the subscriber a copy of the order with the required notice. No other discovery was authorized at that time. Strike 3 may not publicly disclose information produced in response to the subpoena until the subscriber has had an opportunity to ask to proceed anonymously and the court has ruled on that request. The order also required Strike 3 to file a status report in each case without including information about the defendant’s identity.

Disposition

Judge Dulce J. Foster granted the motion in No. 23-cv-3271 and granted the substantively similar motions in the other twenty cases. The order authorized limited early discovery; it did not decide whether the unidentified subscriber committed copyright infringement.