Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that John Doe illegally downloaded and distributed Strike 3’s copyrighted films through BitTorrent, a system for sharing large files over the internet. Strike 3 identified John Doe only by an Internet Protocol address. It moved without notifying the defendant for permission to serve a third-party subpoena on Verizon Fios, the internet service provider associated with that address.

Legal standard

Under Federal Rule of Civil Procedure 26(d)(1), a party generally cannot seek discovery before the parties confer about discovery unless the court allows it. Courts use a flexible good-cause standard. The court applied five factors: whether the plaintiff made an initial showing of actionable harm, whether the request was specific, whether other ways existed to obtain the information, whether the information was needed to advance the claim, and the opposing party’s expectation of privacy.

Analysis

The court found that the factors supported early discovery. First, it held that Strike 3 had made an initial showing of copyright infringement by alleging ownership of registered copyrights and alleging that John Doe distributed the works through file sharing, supported by an investigator’s declaration and forensic evidence. This finding allowed the subpoena to issue; it did not decide whether John Doe was actually liable for infringement.

Second, the court found the request sufficiently specific because it sought only the name and address of the subscriber associated with the identified Internet Protocol address. Third, the court found that Strike 3 had shown it could not obtain the identity another way because BitTorrent is largely anonymous and the internet service provider was the entity that could connect the address to a subscriber’s identity. Fourth, the court found the information necessary for Strike 3 to serve John Doe and move the case forward.

Finally, the court found that internet service provider subscribers have a limited privacy expectation in sharing copyrighted material and that Strike 3’s interest in learning the defendant’s name outweighed that interest. Because the allegations involved adult content and the court identified a substantial risk of mistaken identification, it also found good cause for a protective order.

Ruling and procedure

The court granted Strike 3’s motion. It authorized Strike 3 to serve Verizon Fios with a subpoena under Rule 45 seeking only John Doe’s true name and current and permanent address. The subpoena must include the order and a notice to the defendant; Strike 3 may not request additional information such as an email address or telephone number.

Verizon Fios must serve John Doe with the subpoena, the order, and the notice within 60 days after receiving the subpoena. John Doe then has 60 days after receiving notice to file a motion challenging, quashing, or modifying the subpoena, or to ask to proceed anonymously. If John Doe contests the subpoena, Verizon Fios must not release the contact information until the court rules. If neither John Doe nor Verizon Fios contests it within the 60-day period, Verizon Fios has 10 days to provide the responsive information. Any information disclosed may be used only to protect Strike 3’s rights described in its complaint.