Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that an unidentified person using Internet Protocol (IP) address 98.116.99.252 downloaded and shared Strike 3’s copyrighted films through BitTorrent, a file-sharing system. Strike 3 used proprietary software to track IP addresses associated with the downloading and distribution of its copyrighted works. Because Strike 3 knew Doe only through the IP address, it sought permission to serve Verizon Fios, the internet service provider identified in the motion, with a subpoena to obtain identifying information.

Strike 3 filed an ex parte motion, meaning it asked the court to act before the opposing party participated, under Federal Rule of Civil Procedure 26(d)(1). That rule generally bars discovery before the parties hold a required conference, unless the court authorizes earlier discovery.

Court’s analysis

The court applied a flexible “reasonableness and good cause” standard and considered five factors: whether Strike 3 made an initial showing of copyright infringement, whether the requested discovery was specific, whether other ways existed to identify Doe, whether the information was needed to advance the case, and Doe’s expectation of privacy.

The court found that Strike 3 had made an initial showing of infringement by identifying the copyrighted works and alleging unauthorized copying, including the technology, IP address, and dates and times involved. The court also found the request specific because Strike 3 sought only Doe’s true name and current and permanent address. It concluded that BitTorrent’s anonymity left Strike 3 without another reliable way to identify Doe and that the information was necessary to identify and serve the defendant. The court further noted that the requested information could be lost through routine deletion by internet service providers.

The court acknowledged that disclosure concerning Doe’s viewing of the particular copyrighted works could cause public embarrassment. It nevertheless concluded that internet subscribers have a limited privacy expectation in sharing copyrighted material. At the same time, the court found good cause for a protective order because of the risk of mistaken identification and the resulting annoyance, embarrassment, oppression, or undue burden.

Ruling and procedures

The court granted Strike 3’s motion. Strike 3 may immediately serve a Rule 45 subpoena on Verizon Fios, but the subpoena may seek only Doe’s true name and current and permanent address. It may not seek Doe’s email addresses or telephone numbers.

Verizon Fios must serve Doe with the subpoena, the court’s order, and the notice to defendant within 60 days after the subpoena is served on Verizon Fios. Doe then has 60 days after receiving notice to file a motion challenging the subpoena, including a motion to cancel or modify it, or to request permission to litigate anonymously. Verizon Fios may not provide identifying information to Strike 3 before that period expires. If Doe or Verizon Fios files a motion to cancel or modify the subpoena, Verizon Fios must wait until the court resolves the issue before releasing information.

If no challenge is filed within the 60-day period, Verizon Fios has 10 days to produce the requested information. Verizon Fios must preserve subpoenaed information while any timely challenge is pending. Any information disclosed may be used by Strike 3 only to protect the rights asserted in its complaint. The order also states that Doe may proceed anonymously while the court considers whether the identity should remain undisclosed.