Strike 3 Holdings, LLC v. Doe
- Lewis Liman
- 1:20-cv-07923
- U.S. District Court · Southern District of New York
- 7
In Strike 3 Holdings v. Doe, Judge Liman allowed Strike 3 to subpoena Verizon Fios for John Doe’s identity under privacy safeguards.
Strike 3 may obtain limited identifying information from Verizon Fios, while John Doe receives notice and 60 days to challenge the subpoena or seek anonymous treatment.
What happened
In Strike 3 Holdings, LLC v. Doe, Strike 3 alleged that an unidentified person used BitTorrent to download and distribute its copyrighted adult films. Strike 3 knew the person only by an internet address and asked to obtain the person’s name and address from Verizon Fios, the internet service provider.
The court found that Strike 3 had shown a preliminary copyright-infringement claim, that its request was specific, and that Verizon Fios was the only available source for identifying the subscriber. The court also found that Strike 3’s need for the information outweighed the subscriber’s limited privacy interest.
Judge Liman granted the motion and issued a protective order. Verizon Fios must notify John Doe, who has 60 days to challenge or modify the subpoena or ask to proceed anonymously; if no one objects, Verizon Fios may provide only the person’s name and addresses after an additional 10-day period.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 1:20-cv-07923
- Lewis Liman
- Oct. 9, 2020
Background
Strike 3 Holdings, LLC alleged that John Doe illegally downloaded and distributed its copyrighted adult films through BitTorrent, a system for sharing large files online. Strike 3 identified Doe only through an Internet Protocol address and sought permission to serve a subpoena on Verizon Fios, the internet service provider associated with that address. The subpoena sought information identifying Doe so Strike 3 could serve the lawsuit.
Strike 3 made this request before the parties’ required initial discovery conference. Under Federal Rule of Civil Procedure 26(d)(1), early discovery requires a court order. Strike 3 proceeded ex parte, meaning without first giving the opposing party an opportunity to respond, because Doe’s identity was unknown.
Analysis
The court applied the Second Circuit’s five-factor good-cause test for early discovery:
- Preliminary claim: Strike 3 adequately alleged ownership of valid copyrights and presented a declaration and forensic evidence supporting its allegation that Doe transmitted its works through file sharing. The court therefore found a preliminary showing of copyright infringement. This was not a final decision that Doe infringed the copyrights.
- Specificity: The request was limited to the subscriber’s name and address associated with the identified Internet Protocol address.
- No alternative means: The court accepted Strike 3’s allegation that BitTorrent is largely anonymous and that the internet service provider was the only entity able to connect the Internet Protocol address to a subscriber’s identity.
- Need for the information: The court found that Strike 3 could not serve Doe or move the case forward without first identifying Doe.
- Privacy: The court relied on decisions holding that internet service subscribers have a minimal privacy expectation in sharing copyrighted material. It found that Strike 3’s interest in identifying Doe for service outweighed that privacy interest.
Because the allegations involved adult content and the court recognized a substantial risk of mistaken identification, it also found good cause for a protective order. The order required Verizon Fios to notify Doe and gave Doe an opportunity to challenge the subpoena or seek anonymous treatment.
Disposition
The court granted Strike 3’s motion. It authorized Strike 3 to serve a Federal Rule of Civil Procedure 45 subpoena on Verizon Fios seeking only John Doe’s true name and current and permanent address. Strike 3 may not request additional information, including an email address or telephone number.
Verizon Fios must serve Doe with the subpoena, the court’s order, and a notice to the defendant within 60 days after being served with the subpoena. Doe then has 60 days after receiving notice to move to quash or modify the subpoena, or to request permission to litigate anonymously. If Doe contests the subpoena, Verizon Fios must not release the contact information while the court considers the challenge. If neither Doe nor Verizon Fios contests the subpoena within the 60-day period, Verizon Fios has 10 days to provide the responsive information. Strike 3 may use any information disclosed only to protect the rights described in its complaint.
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.