Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that John Doe, whose identity was unknown, downloaded and distributed dozens of Strike 3 films using the BitTorrent file-sharing protocol. Strike 3 identified an Internet Protocol address associated with the alleged activity and asked for permission to serve a subpoena on Verizon Fios, the identified internet service provider, before the parties held the conference normally required before discovery begins.

Strike 3 submitted declarations describing its infringement-detection system, forensic evidence allegedly showing that the identified Internet Protocol address transmitted data reflecting Strike 3’s works, and evidence supporting its ownership of the copyrights. Strike 3 said Verizon Fios was the only entity able to connect the Internet Protocol address to a subscriber and identify John Doe.

Court’s analysis

Under Federal Rule of Civil Procedure 26(d)(1), early discovery requires a court order. The court applied a flexible good-cause standard and considered five factors: whether Strike 3 had made an initial 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 John Doe’s privacy interest.

The court concluded that Strike 3 had made an initial showing of copyright infringement by alleging ownership of valid copyrights and presenting allegations and supporting evidence that John Doe transmitted the works through file sharing. The court found the request sufficiently specific because it sought only the name and address of the subscriber associated with the identified Internet Protocol address. It also found that Strike 3 had adequately shown, for purposes of this motion, that it had no alternative way to obtain John Doe’s identity and that the information was necessary to serve process and continue the case.

The court recognized that internet subscribers have a limited privacy expectation in sharing copyrighted material. Because the case involved adult content and there was a substantial risk of mistaken identification and resulting embarrassment or undue burden, the court ordered protective procedures to balance Strike 3’s interests with John Doe’s privacy.

Ruling and ordered procedures

Judge Lewis J. Liman granted Strike 3’s motion. The court authorized Strike 3 to serve a Federal Rule of Civil Procedure 45 subpoena on Verizon Fios seeking only John Doe’s true name and current and permanent address. Strike 3 may not seek additional information, including an email address or telephone number.

Verizon Fios must serve John Doe with the subpoena, the order, and the court’s notice within 60 days after the subpoena is served on Verizon Fios. John Doe then has 60 days from service of the subpoena to file a motion challenging it, including a motion to cancel or modify the subpoena, and may request to litigate anonymously. If John Doe challenges the subpoena, Verizon Fios must not release the contact information until the court rules on the challenge. If neither John Doe nor Verizon Fios contests the subpoena within the 60-day period, Verizon Fios has 10 days to produce the responsive information. Any information disclosed may be used by Strike 3 only to protect the rights asserted in its complaint.