Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 23.88.130.80

Background

Strike 3 Holdings, LLC filed twenty-one similar lawsuits against unidentified John Doe defendants. In this case, the defendant was identified by the internet address 23.88.130.80. Strike 3 alleged that the defendant used the BitTorrent file-sharing system to download and distribute Strike 3’s copyrighted movies without permission. Strike 3 said its proprietary infringement-detection system identified the internet address involved in the alleged activity.

Because Strike 3 did not know the defendant’s name or address, it asked for permission to serve a subpoena on the defendant’s internet service provider before the parties held the conference ordinarily required early in a civil case. The subpoena sought information that would allow Strike 3 to identify the subscriber, investigate the alleged infringement, and serve the defendant.

Court’s analysis

The court applied a “good cause” standard, meaning Strike 3 had to show that the need for early discovery outweighed the possible harm to the responding party. The court considered five factors: whether Strike 3 showed a preliminary claim for copyright infringement, whether the request was specific, whether other ways existed to obtain the information, whether the information was needed for the case to proceed, and the subscriber’s privacy expectations.

The court concluded that expedited discovery was warranted in all twenty-one cases. It found that Strike 3 had stated an actionable copyright-infringement claim, that the request was limited to each defendant’s name and address, that no alternative way to obtain the information was available, and that the cases could not proceed without identifying the defendants. The court also concluded that Strike 3’s interest in pursuing its claims outweighed the subscribers’ privacy interests when protective safeguards were used.

The court recognized that the subscriber associated with an internet address might not be the person who committed the alleged infringement. It therefore imposed privacy protections.

Order

For the case involving IP address 23.88.130.80, the court granted Strike 3’s motion for leave to serve a third-party subpoena before the required conference. The same relief was granted in each of the other twenty cases.

The order allowed Strike 3 to serve a subpoena under Federal Rule of Civil Procedure 45 on the relevant internet service provider. The subpoena may seek only the name and address of the subscriber assigned to the identified internet address during the time period of the alleged infringement. It must provide at least sixty days’ notice before production is required and may request only one category of identifying documents.

The provider must notify the subscriber within fourteen calendar days after receiving the subpoena. The subscriber then has forty-five calendar days from the notice to seek a protective order, file a responsive pleading, or do both. No other discovery was authorized at that time.

Strike 3 may not publicly disclose information produced in response to the subpoena until the defendant has had an opportunity to ask to proceed anonymously and the court rules on that request. The order also required Strike 3 to file a status report in each case by February 5, 2023, although that date appears in the opinion despite the order’s December 6, 2023 date.