Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that John Doe used the BitTorrent file-sharing network to download, copy, and distribute films owned or licensed by Strike 3 without authorization. Strike 3 alleged that its VXN Scan system connected with Internet Protocol address 173.56.86.169 and obtained pieces of 25 digital media files that were identical or substantially similar to Strike 3’s copyrighted works.

Because Strike 3 knew only the Internet Protocol address and not Doe’s identity, it sought permission to serve an early subpoena on Verizon FIOS, the internet service provider associated with that address. The court had previously granted that request and amended its earlier order through this opinion.

Legal standard and analysis

Normally, parties cannot seek discovery before the required conference among the parties unless the court permits it. For a subpoena seeking identifying information from an internet service provider, courts consider whether the plaintiff has an initial copyright-infringement case, whether the request is specific, whether other ways exist to obtain the information, whether the information is needed, and the defendant’s privacy expectations.

The court found that Strike 3 made an initial showing of infringement by identifying copyright registrations and alleging unauthorized copying and distribution. The court also found the request sufficiently specific because it sought only the name and address of the subscriber associated with IP address 173.56.86.169. According to the court, Strike 3 had no practical alternative way to identify Doe, and the information was necessary to continue the lawsuit. The court further stated that internet subscribers have only a minimal expectation of privacy in transmitting or distributing copyrighted material, while noting that its notice and challenge procedures would address the risk of identifying the wrong person and causing undue embarrassment.

Order

Judge Ona T. Wang ordered that Strike 3 may immediately serve Verizon with a subpoena limited to obtaining the name and address of the subscriber associated with IP address 173.56.86.169. Strike 3 must obtain court permission before subpoenaing another third-party provider before the parties’ required conference. Strike 3 may use the information only for this lawsuit and may not threaten to disclose it to non-parties.

Verizon must notify the subscriber within 30 days after being served with the subpoena or the order, whichever is later. The subscriber has 45 days after receiving the subpoena or order to challenge it, including by asking to proceed anonymously. Verizon may not disclose the identifying information before that 45-day period expires. If the subscriber or Verizon files a challenge, Verizon must wait until the court resolves all such motions and orders disclosure. If no challenge is filed, Verizon has 10 additional days to produce the information and must preserve the information while any challenge is pending.

This order permitted early discovery to identify the defendant; it did not decide whether John Doe actually infringed Strike 3’s copyrights.