Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 71.8.146.181

Background

Strike 3 Holdings, LLC filed 21 similar copyright-infringement cases against unidentified John Doe defendants in the District of Minnesota. In the case involving IP address 71.8.146.181, 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 proprietary infringement-detection system, called VXN, detected distribution associated with the IP address. Strike 3 could identify the defendant only by the IP address and alleged that the defendant’s internet service provider could identify the subscriber by matching the IP address to a name and address.

Motion and legal standard

Strike 3 sought permission to serve a Federal Rule of Civil Procedure 45 subpoena on the internet service provider before the parties held the discovery conference normally required by Rule 26(f). The subpoena would seek information identifying the subscriber so that Strike 3 could investigate the alleged infringement and serve the defendant.

The court applied a good-cause standard, meaning that the need for early discovery must outweigh the responding party’s potential prejudice. It also applied five commonly used factors: whether Strike 3 made a concrete initial showing of an actionable claim; whether the discovery request was specific; whether other ways existed to obtain the information; whether the information was needed to advance the case; and whether the subscriber had a privacy interest in the information.

Court’s analysis

The court concluded that expedited discovery was warranted in all 21 cases. It found that Strike 3 had sufficiently alleged an actionable copyright-infringement claim by alleging ownership of valid copyrights, copying and distribution by each defendant, and lack of authorization. The court found the discovery request specific because it sought only each defendant’s name and address. It also found no alternative means to obtain the information and determined 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 actual infringer and that the allegations involved sensitive and potentially embarrassing subject matter. Even so, the court concluded that Strike 3’s interest in pursuing its copyright claims outweighed the subscribers’ privacy interests if protective measures were used.

Order

The court granted each of the 21 motions for permission to serve a third-party subpoena before the Rule 26(f) conference, including Strike 3’s motion in No. 23-cv-3266. Strike 3 may subpoena the relevant internet service provider for 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 may seek only one category of identifying documents. The provider must notify the subscriber within 14 calendar days after receiving the subpoena. The subscriber then has 45 calendar days from the notice date to seek a protective order, file a response, or do both. No other discovery was authorized at that time.

Strike 3 must provide the order with the subpoena, and the provider must provide the order with its notice to the subscriber. 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 identifying information, by the date stated in the order.

Judge Dulce J. Foster signed the omnibus order. The order addressed discovery and privacy protections; it did not decide whether the defendant actually infringed Strike 3’s copyrights.