Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC sued a defendant identified as John Doe by the Internet Protocol address 74.101.166.194. Strike 3 operates adult film websites and alleged that copyrighted works were downloaded and distributed through BitTorrent, a file-sharing system. Strike 3 said its forensic software recorded the Doe defendant’s Internet Protocol address and identified the works, dates, and times involved.

Because Strike 3 could identify the defendant only through the Internet Protocol address, it asked for permission to serve Verizon Fios, the Internet service provider, with a subpoena before the parties’ required initial discovery conference. The subpoena sought information that would identify the subscriber associated with the address.

Court’s analysis

Federal Rule of Civil Procedure 26(d)(1) generally prevents discovery before the parties confer, unless a court authorizes earlier discovery. The court applied a flexible good-cause standard and considered five 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 needed to advance the case; and the defendant’s privacy interest.

The court found that Strike 3 had made a prima facie, or initial, showing of copyright infringement by identifying the copyrighted works and alleging unauthorized copying, downloading, and distribution with details about the technology, Internet Protocol address, and timing. The court found the request specific because it sought only John Doe’s true name and current and permanent address. It also found that BitTorrent’s anonymity left Strike 3 without another reliable way to identify the defendant, and that the information was necessary to identify and serve the defendant and avoid possible loss of subscriber records.

The court acknowledged that the alleged viewing of the particular copyrighted works could cause public embarrassment. It nevertheless concluded that the defendant had only a minimal expectation of privacy in sharing copyrighted material for purposes of this discovery request. The court also found good cause for a protective order because of the risk of false identifications and resulting embarrassment, oppression, annoyance, or undue burden.

Ruling and procedures

Judge Alison J. Nathan granted Strike 3’s motion. Strike 3 may immediately serve Verizon Fios with a Rule 45 subpoena to obtain information identifying John Doe. The subpoena may seek only the defendant’s true name and current and permanent address; it may not seek email addresses or telephone numbers.

Verizon Fios must serve John Doe with the subpoena, the court’s order, and the attached notice within 60 days after being served. John Doe has 60 days after receiving that notice to file a motion challenging the subpoena, including a request to cancel or modify it, or to request permission to proceed anonymously. Verizon Fios may not disclose identifying information to Strike 3 during that period. If a timely challenge is filed, Verizon Fios must preserve the information and may not disclose it until the court resolves the challenge and authorizes disclosure.

If no challenge is filed during the 60-day period, Verizon Fios has 10 days to produce the requested information. Any information disclosed may be used by Strike 3 only to protect the rights asserted in its complaint. The order authorizes early discovery and does not decide whether John Doe is liable for copyright infringement.