Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 73.228.132.81

Background

Strike 3 Holdings, LLC filed 21 similar copyright-infringement cases against defendants identified only as John Doe subscribers associated with particular internet-protocol addresses. In the case involving IP address 73.228.132.81, Strike 3 alleged that the defendant used the BitTorrent file-distribution system to download and distribute Strike 3’s copyrighted movies without authorization. Strike 3 said its infringement-detection system identified the IP address, but it could not identify the person using it. Strike 3 alleged that the internet service provider could connect the IP address to a subscriber’s name and address.

Strike 3 sought permission to serve a third-party subpoena under Federal Rule of Civil Procedure 45 before the parties held the usual Rule 26(f) discovery conference. The subpoena would be directed to the internet service provider and would seek information identifying the subscriber.

Legal standard and analysis

The court explained that early discovery may be allowed when a defendant’s identity is unknown. Applying the good-cause standard and five factors commonly used for expedited discovery, the court found that Strike 3 had shown: an actionable copyright-infringement claim, a specific request limited to the subscriber’s name and address, no alternative way to obtain the information, a need for the information to proceed with the case, and a sufficient basis to outweigh the subscriber’s privacy interest when protective measures were included.

The court stated that Strike 3 had adequately alleged ownership of valid copyrights, unauthorized copying and distribution, and lack of authorization. The court did not determine that the subscriber was the actual infringer. It specifically recognized that a subscriber might not be the person who used the IP address to infringe the copyrights and that the subject matter could be sensitive or embarrassing.

Order

The court granted Strike 3’s ex parte motion in each of the 21 cases, including No. 23-cv-3276. Strike 3 may serve a Rule 45 subpoena on the relevant internet service provider seeking only the name and address of the subscriber assigned to the IP address during the periods identified in the complaint.

The subpoena must give at least 60 days’ notice before production is required and must be limited to one category of documents identifying the particular subscriber. The provider must notify the subscriber within 14 calendar days after service. The subscriber then has 45 calendar days from notice to seek a protective order, file a responsive pleading, or both. The provider may also seek a protective order.

Strike 3 must serve this order with the subpoena, and the provider must include the order with its notice to the subscriber and certify that the notice was given. No other discovery was authorized at that time. Strike 3 may not publicly disclose information produced under 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 concerning the authorized discovery without identifying the defendant.