Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that an unnamed defendant, identified in the complaint by the Internet Protocol address 151.205.113.65, downloaded and shared Strike 3’s copyrighted works using BitTorrent. Strike 3 said its forensic software tracked the address, the alleged activity, and the dates and times involved. Strike 3 could not identify the individual associated with the address and sought information from Verizon Fios, the Internet service provider.

Motion and legal standard

Strike 3 moved under Federal Rule of Civil Procedure 26(d)(1) for permission to serve a third-party subpoena before the parties’ required Rule 26(f) discovery conference. The court applied a flexible standard requiring reasonableness and good cause, with especially careful review because the request was made without advance notice to the defendant.

The court considered five principal factors: whether Strike 3 had made an initial showing of copyright infringement; whether the request was specific; whether other ways existed to obtain the information; whether the information was necessary to advance the case; and the defendant’s expectation of privacy.

Court’s analysis

The court found that Strike 3 had made an initial showing of copyright infringement. It said the complaint identified the copyrighted works and alleged unauthorized copying using specified technology, an IP address, and dates and times. The court also found the request specific because Strike 3 sought only the defendant’s true name and current and permanent address, information needed to identify and serve the defendant.

The court found no other apparent way for Strike 3 to obtain the defendant’s identity because BitTorrent provides substantial anonymity and only the internet service provider could match the IP address to subscriber information. It further found the information necessary because, without the subpoena, Strike 3 would be unable to identify and serve the defendant. The court also noted the possibility that an internet service provider might routinely delete the information.

Although the court recognized that the alleged viewing of the copyrighted works could cause public embarrassment, it relied on decisions finding that internet subscribers have only a limited expectation of privacy in sharing copyrighted material. The court also found good cause for a protective order because of the risk of false-positive identifications and resulting annoyance, embarrassment, oppression, or undue burden.

Disposition and safeguards

The court granted Strike 3’s motion. It ordered that Strike 3 could immediately serve a Rule 45 subpoena on Verizon Fios to obtain only the defendant’s true name and current and permanent address. Strike 3 could not seek the defendant’s email addresses or telephone numbers through that subpoena.

Verizon Fios was given 60 days after service to provide the defendant with the subpoena, the order, and the notice to defendant. The defendant was given 60 days after receiving those materials to file a motion challenging the subpoena, including a request to cancel or modify it, or to request permission to litigate anonymously. Verizon Fios could not disclose identifying information to Strike 3 during that period. If a challenge was filed, Verizon Fios could not disclose information until the court resolved the issue and ordered disclosure to resume.

If no challenge was filed within the 60-day period, Verizon Fios would have 10 days to produce the responsive information. Verizon Fios was required to preserve subpoenaed information while any timely challenge was pending. Any information disclosed could be used by Strike 3 only to protect the rights asserted in its complaint.