Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that John Doe infringed its copyrights by downloading and sharing copyrighted works through BitTorrent. Strike 3 could identify the defendant only by the Internet Protocol address 108.41.131.26. It asked for permission to serve Verizon Fios, the Internet service provider associated with that address, with a subpoena before the parties’ required early litigation conference. The purpose was to obtain information identifying John Doe.

Legal standard

Federal Rule of Civil Procedure 26(d)(1) generally prevents parties from seeking discovery before the Rule 26(f) conference, unless a court authorizes earlier discovery. Courts apply a flexible “reasonableness and good cause” standard and scrutinize requests made without notifying the opposing party. The court considered five factors: whether Strike 3 had made a preliminary showing of 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 expectation of privacy.

Court’s analysis

The court concluded that Strike 3 had made a preliminary showing of copyright infringement by identifying the copyrighted works and alleging the dates, times, Internet Protocol address, and technology involved in the copying. The court found the request specific because Strike 3 sought only information needed to identify and serve John Doe. It also found that BitTorrent’s anonymity and the fact that only the Internet service provider could connect the Internet Protocol address to a subscriber meant that no other identified method was available.

The court further determined that the information was necessary to move the case forward and noted the possibility that the provider’s routine deletion of records could cause the information to be lost. Although the court recognized that the alleged viewing of the particular copyrighted works could cause public embarrassment, it found that Internet service provider subscribers have a minimal expectation of privacy in sharing copyrighted material.

Ruling and protections

Judge Alison J. Nathan granted Strike 3 permission to immediately serve a Rule 45 subpoena on Verizon Fios. The subpoena could seek only John Doe’s true name and current and permanent address; it could not seek email addresses or telephone numbers. The subpoena had to include the opinion and order and a notice to the defendant.

The court also issued a protective order. Verizon Fios had 60 days after receiving the subpoena to notify John Doe. John Doe or Verizon Fios had 60 days after service of the subpoena and order to file a motion challenging the subpoena, including a motion to cancel or modify it, or to request anonymous litigation. Verizon Fios could not disclose identifying information before that period ended or while a timely challenge remained unresolved. If no challenge was filed, Verizon Fios would have 10 days to produce the requested information. Verizon Fios had to preserve the information while any timely challenge was pending, and any information disclosed could be used only to protect Strike 3’s rights in this lawsuit.