Strike 3 Holdings, LLC v. Doe
- Philip Halpern
- 7:20-cv-06606
- U.S. District Court · Southern District of New York
- 9
In Strike 3 Holdings v. Doe, Judge Halpern allowed a subpoena to identify the unnamed subscriber accused of copyright infringement.
Strike 3 Holdings, LLC may seek the unnamed defendant’s true name and addresses from Verizon Fios. The unnamed subscriber may challenge or seek to limit the subpoena and may request anonymity. Verizon Fios must provide notice, preserve the information, and withhold disclosure during the specified challenge periods.
What happened
Strike 3 Holdings, LLC sued an unnamed subscriber, identified by an Internet Protocol address, alleging that the subscriber downloaded and distributed at least 30 copyrighted works through BitTorrent. The company asked to subpoena the subscriber’s internet provider, Verizon Fios, before the parties’ required preliminary conference.
The court found that Strike 3 had shown a possible copyright-infringement claim and that its request for the subscriber’s name and addresses was specific and necessary. It also found no practical alternative way to obtain that information and concluded that the company’s need outweighed the subscriber’s limited privacy interest.
Judge Philip M. Halpern granted the application. Strike 3 may serve the subpoena for the subscriber’s true name and current and permanent address, but not email addresses or telephone numbers, subject to notice, confidentiality protections, and a 60-day opportunity to challenge the subpoena.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 7:20-cv-06606
- Philip Halpern
- Oct. 20, 2020
Background
Strike 3 Holdings, LLC sued a presently unknown defendant identified as John Doe, who was associated with Internet Protocol address 100.37.218.17. Strike 3 alleged that Doe downloaded and distributed at least 30 of its copyrighted adult motion pictures through BitTorrent. Because Strike 3 knew only the Internet Protocol address, it asked for permission to serve an early subpoena on Doe’s internet service provider, Verizon Fios, before the parties held the conference normally required by Federal Rule of Civil Procedure 26(f).
Court’s analysis
Federal Rule of Civil Procedure 26(d)(1) generally bars discovery before the Rule 26(f) conference unless a court authorizes it. The court applied a flexible reasonableness and good-cause standard and considered five factors used for early discovery in copyright cases:
- Whether the plaintiff made a concrete initial showing of an actionable claim;
- Whether the requested discovery was specific;
- Whether there were other ways to obtain the information;
- Whether the information was needed to advance the case; and
- The defendant’s expectation of privacy.
The court found that Strike 3 had made the required initial showing. It had alleged ownership and registration of the copyrights and alleged that Doe copied and distributed the works without authorization through BitTorrent. The court also found the request sufficiently narrow because Strike 3 sought only Doe’s true name and address.
The court accepted Strike 3’s showing that Verizon Fios was the only entity able to connect the Internet Protocol address to the subscriber assigned to it during the relevant period. It further found that identifying Doe was necessary for service of process. Although the subject matter could cause embarrassment, the court concluded that an internet subscriber has only a minimal privacy expectation in sharing copyrighted material and that Strike 3’s interest in obtaining Doe’s name and address outweighed that privacy interest.
The court also recognized the risk of false identification and the possibility that disclosure could pressure an innocent person to settle. It therefore found good cause for a protective order concerning the subpoena and the subscriber’s identity.
Order
The court granted Strike 3’s application. Strike 3 may immediately serve a subpoena under Federal Rule of Civil Procedure 45 on Verizon Fios to obtain Doe’s true name and current and permanent address. The subpoena may not seek Doe’s email addresses or telephone numbers.
Verizon Fios must notify Doe within 60 days after receiving the subpoena. Doe then has 60 days after receiving the subpoena and the court’s order to move to quash or modify the subpoena. Verizon Fios may not disclose identifying information before that period ends, and it may not disclose the information while a timely challenge is pending unless the court orders disclosure. If no challenge is filed during the applicable period, Verizon Fios has 10 days to provide the responsive information.
The order also permits Doe to seek anonymous treatment, requires Verizon Fios to preserve subpoenaed information while a timely challenge is pending, and limits any information disclosed to Strike 3’s use in protecting the rights asserted in the complaint. The court directed the clerk to terminate the pending motion.
Read the full 9-page opinion on CourtListener, the free public archive maintained by the Free Law Project.