Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC sued an unidentified defendant for alleged copyright infringement. Strike 3 alleged that the defendant, associated with Internet Protocol address 174.44.133.50, used BitTorrent to download and distribute 24 of Strike 3’s copyrighted works. Because Strike 3 knew only the Internet Protocol address, it asked for permission to subpoena the defendant’s Internet service provider, Optimum Online, before the parties held the required discovery conference.

Court’s analysis

The court applied the standard requiring a reasonable request supported by good cause for discovery before the usual conference. It considered five factors: whether Strike 3 showed a preliminary, legally sufficient copyright claim; whether the request was specific; whether other ways existed to identify the defendant; whether the information was needed to pursue the case; and the defendant’s privacy interest.

The court found that Strike 3 had adequately alleged ownership of valid copyrights and unauthorized copying and distribution. It also found that the request was limited to the defendant’s true name and address, that Optimum Online was the only identified source of that information, and that the information was necessary to serve the defendant. The court concluded that Strike 3’s interest in obtaining the information outweighed the defendant’s privacy interest, while recognizing the risk that an Internet subscriber might not be the person who committed the alleged infringement.

Ruling

Judge Halpern granted Strike 3’s application. Strike 3 may immediately serve a subpoena under Federal Rule of Civil Procedure 45 on Optimum Online to obtain the defendant’s true name and current and permanent address. Strike 3 may not seek the defendant’s email address or telephone number through this subpoena.

The order requires Optimum Online to notify the defendant within 60 days after receiving the subpoena. The defendant then has 60 days after receiving notice to file a motion challenging or modifying the subpoena, including a request to prevent disclosure or to proceed anonymously. Optimum Online may not disclose identifying information before that period ends, or while a timely challenge is pending. If no challenge is filed, Optimum Online has 10 additional days to produce the requested information. The court also ordered protections concerning the information’s preservation, possible production costs, and use only to protect Strike 3’s rights in this lawsuit.

The order addressed early identification discovery only; it did not decide whether the defendant infringed Strike 3’s copyrights.