Strike 3 Holdings, LLC v. Doe
- James Oetken
- 1:20-cv-08826
- U.S. District Court · Southern District of New York
- 4
In Strike 3 Holdings v. Doe, Judge Oetken allowed protected expedited discovery to identify the alleged copyright defendant while preserving Doe’s opportunity to object.
Strike 3 Holdings may seek John Doe’s identifying information from Verizon Fios, but John Doe receives notice and 60 days to challenge or modify the subpoena or request anonymous litigation. Verizon Fios must preserve the information and withhold it while a timely challenge is pending.
What happened
In Strike 3 Holdings, LLC v. John Doe, Strike 3 alleged that an unidentified person distributed its copyrighted movies, which contained pornographic material. Strike 3 asked to obtain the person’s name and address from Verizon Fios, the internet service provider connected to the listed Internet Protocol address.
The court found good cause for early discovery because Strike 3 could not identify or serve John Doe without a subpoena. But it also recognized that the subscriber might not be the person who infringed the copyright and that the subject matter could create pressure to settle because of its embarrassing nature.
Judge Oetken allowed Strike 3 to serve Verizon Fios with a subpoena, but required protections for John Doe. Verizon Fios must notify Doe, who has 60 days to challenge the subpoena or ask to proceed anonymously; Verizon Fios cannot disclose identifying information during that period or while a timely challenge is pending.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 1:20-cv-08826
- James Oetken
- Oct. 29, 2020
Background
Strike 3 Holdings, LLC alleged that an unidentified defendant, identified in the caption as John Doe and associated with Internet Protocol address 98.116.139.168, distributed Strike 3’s copyrighted movies in violation of the Copyright Act. The movies contained pornographic material.
Strike 3 moved for permission to take expedited discovery—discovery allowed before the usual schedule—from Verizon Fios, a third-party internet service provider, to obtain John Doe’s name and address. The court stated that Verizon Fios qualified as a “cable operator” under 47 U.S.C. § 522(5) and was effectively prohibited by 47 U.S.C. § 551(c) from disclosing Doe’s identity without a court-ordered subpoena.
Court’s Analysis
The court found good cause to allow some expedited discovery because, without it, Strike 3 would not be able to determine John Doe’s identity or serve him with the lawsuit.
The court rejected the proposed discovery order’s safeguards as inadequate. It explained that the fact that copyrighted material was downloaded from an Internet Protocol address does not necessarily establish that the account holder was the infringer. Someone else with access to the connection—such as a child, neighbor, or houseguest—could have been responsible. The court found a real risk that an incorrectly identified person could be forced to defend against unsupported allegations or pressured into an unjust settlement.
The court also found that the pornographic subject matter increased the risk of coercive settlements because of the possibility that the allegations could become public and embarrass the defendant.
Order
The court ordered that Strike 3 may immediately serve Verizon Fios with a subpoena under Federal Rule of Civil Procedure 45 seeking John Doe’s name and current and permanent address. A copy of the order must accompany the subpoena.
Strike 3 must immediately serve the order on Verizon Fios, and Verizon Fios must serve it on John Doe by a reasonable method, including first-class mail or overnight service to Doe’s last known address.
John Doe has 60 days after service of the order to file a motion challenging the subpoena, including a motion to quash or modify it, or to request permission to litigate anonymously. Verizon Fios may not disclose Doe’s identifying information before that period ends. If Doe or Verizon Fios files a motion to quash, Verizon Fios may not disclose the information until the court resolves the issues and orders disclosure to resume.
If the 60-day period passes without a challenge, Verizon Fios has 10 days to produce the subpoenaed information. Verizon Fios must preserve the information while any timely motion to quash is pending. It must confer with Strike 3 about production costs and may not charge those costs in advance; if it charges for production, it must provide a billing summary and cost report. Any information disclosed may be used only to protect Strike 3’s rights described in its complaint.
The Clerk of Court was directed to close Docket No. 6. The order did not decide whether John Doe infringed Strike 3’s copyrights.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.