Strike 3 Holdings, LLC v. Doe
- Analisa Torres
- 1:20-cv-07929
- U.S. District Court · Southern District of New York
- 5
In Strike 3 Holdings v. John Doe, Judge Wang allowed early discovery to identify the subscriber linked to the alleged copyright infringement.
Strike 3 Holdings, LLC may seek the identity of the subscriber associated with Internet Protocol address 98.113.169.222. John Doe and Verizon Fios receive notice and an opportunity to challenge the subpoena before any identifying information is disclosed.
What happened
Strike 3 Holdings, LLC alleged that John Doe used the BitTorrent network to copy and distribute its copyrighted films without permission. Because it knew only the internet protocol address associated with the activity, the company asked to subpoena Verizon Fios for the subscriber’s name and address.
The court found that Strike 3 had made an initial showing supporting copyright infringement, that its request was specific, and that Verizon Fios was the only practical source of the identifying information. The court also found that the subscriber had only a limited privacy expectation in transmitting or distributing copyrighted material.
Judge Ona T. Wang granted Strike 3’s motion. Verizon Fios must notify the subscriber, who has 45 days to challenge the subpoena; Verizon Fios may not disclose identifying information before that period ends or while a challenge is pending.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 1:20-cv-07929
- Analisa Torres
- Mar. 26, 2021
Background
Strike 3 Holdings, LLC alleged that John Doe, associated with Internet Protocol address 98.113.169.222, used BitTorrent to copy and distribute pieces of 75 digital media files that Strike 3 claimed were identical or substantially similar to its copyrighted films. Strike 3 said its VXN Scan system detected the alleged activity. Because Strike 3 had only the Internet Protocol address, it asked for permission under Federal Rule of Civil Procedure 26(d)(1) to serve a subpoena on nonparty Internet Service Provider Verizon Fios seeking the subscriber’s true name and address.
Legal standard
Discovery normally cannot begin before the parties hold their required Rule 26(f) conference unless the court allows it. The court applied a reasonableness and good-cause standard. In cases seeking identifying information from an Internet Service Provider, courts consider whether the plaintiff has an initial case for infringement, whether the request is specific, whether other ways exist to obtain the information, whether the information is needed, and the defendant’s privacy expectations.
Analysis
The court found that Strike 3 had made an initial showing of copyright infringement. Strike 3 attached copyright-registration information and alleged that John Doe copied and distributed elements of its copyrighted works. The court also found the subpoena sufficiently specific because it sought only the name and address of the subscriber associated with the identified Internet Protocol address.
The court accepted Strike 3’s assertion that it could not identify John Doe without Verizon Fios’s cooperation. It therefore found the requested information necessary to continue the lawsuit. The court further stated that Internet Service Provider subscribers have a limited expectation of privacy in transmitting or distributing copyrighted material. It said procedural safeguards would address concerns about identifying the wrong person and causing undue embarrassment.
Ruling and safeguards
Judge Ona T. Wang granted Strike 3’s motion for leave to serve a third-party subpoena. Strike 3 could immediately serve Verizon Fios with a Rule 45 subpoena seeking the name and address of the subscriber associated with 98.113.169.222 and had to include the order with the subpoena.
Verizon Fios was required to notify the subscriber within 30 days after being served. The subscriber then had 45 days after receiving the subpoena to challenge it, including by asking to proceed anonymously. Verizon Fios could not disclose the identifying information before that 45-day period expired. If the subscriber or Verizon Fios filed a challenge, Verizon Fios could not disclose information until the court resolved the challenge and ordered disclosure. If no challenge was filed, Verizon Fios would have 10 days after the 45-day period to provide the subpoenaed information and had to preserve the information while any challenge was pending.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.