Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC, which the opinion describes as an owner of adult motion pictures, filed a copyright-infringement action against John Doe. Strike 3 alleged that Doe downloaded and distributed its copyrighted motion pictures. Doe was identified only through the internet protocol address 72.69.0.31.

Strike 3 sought permission under Federal Rule of Civil Procedure 26(d)(1) to serve a third-party subpoena on Verizon Internet Services, Doe’s internet service provider, to obtain Doe’s name and address. The motion was made before the parties’ initial required conference.

Legal standard

Rule 26(d)(1) generally prevents discovery before the parties’ required conference unless the court authorizes it. Courts may allow early discovery when it is reasonable and there is good cause. The court considered five factors: whether Strike 3 had made a preliminary showing of copyright infringement, whether the request was specific, whether other ways existed to obtain the information, whether the information was needed to advance the case, and Doe’s expectation of privacy.

Court’s analysis

The court found that all five factors favored Strike 3. First, Strike 3’s complaint described the copyrighted works, including publication dates and copyright-registration information, and alleged that its proprietary “VXN Scan” system detected Doe’s downloading and distribution through the BitTorrent file-sharing network. The court treated this as a preliminary showing of copyright infringement.

Second, the court found the request sufficiently narrow because it sought only Doe’s name and address. Third, the court accepted Strike 3’s contention that Verizon was the only entity able to connect the IP address to the subscriber assigned that address. Fourth, the court found the information necessary because Strike 3 could not serve Doe or continue pursuing the action without it.

Finally, the court recognized that being identified in a lawsuit involving the distribution and viewing of adult movies could cause embarrassment. It nevertheless found that internet subscribers have only a minimal expectation of privacy in sharing copyrighted material.

Order and effect

The court granted Strike 3’s motion and allowed it to immediately serve Verizon with a subpoena under Rule 45. The subpoena could seek only Doe’s true name and current and permanent address; Strike 3 was not permitted to seek email addresses or telephone numbers.

Verizon was given 60 days after receiving the subpoena to notify Doe and provide Doe with the subpoena, the order, and a notice explaining Doe’s rights. If neither Doe nor Verizon challenged the subpoena during that period, Verizon would have 10 days to provide the requested information. Doe could move to quash or modify the subpoena or seek to proceed anonymously. If such a motion were filed, Verizon could not release Doe’s contact information until the court ruled.

The order also required preservation of the subpoenaed information, limited any disclosed information to use in protecting Strike 3’s rights in the lawsuit, and required a protective order because of the risk of mistaken identification, embarrassment, or undue burden. The initial conference was adjourned without a new date, and the clerk was directed to terminate the pending motion. The court did not decide whether Doe actually infringed Strike 3’s copyrights.