Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that Defendant John Doe used the BitTorrent file-sharing network to download and distribute Strike 3’s films without authorization. Strike 3 asserted a claim for direct copyright infringement. Because Strike 3 did not know the defendant’s identity, the complaint identified the defendant by the internet protocol address allegedly associated with the activity: 98.116.101.253.

Strike 3 asked for permission to serve a subpoena on the defendant’s internet service provider before the parties held the conference generally required by Federal Rule of Civil Procedure 26(f). The subpoena sought the name and address associated with the internet protocol address.

Court’s reasoning

The court applied a flexible reasonableness and good-cause standard for allowing discovery before the Rule 26(f) conference. It found that Strike 3 had stated an initial copyright-infringement claim sufficient for purposes of the motion and appeared to have no other way to identify the alleged infringer. The court also noted that the litigation could not proceed unless the defendant was identified.

The court recognized a risk of mistaken identification because multiple people may use a single internet connection. The person responsible for the alleged activity might not be the person or entity whose name and address appeared in the internet provider’s billing records. The court was concerned that this risk could pressure innocent subscribers to settle in order to avoid having their names publicly associated with allegations involving the downloading of pornographic films.

Order

The court granted Strike 3’s motion for leave to serve a third-party subpoena, subject to procedures protecting the subscriber’s opportunity to challenge the subpoena before disclosure of identifying information.

The order provides that:

- Strike 3 may immediately serve a Federal Rule of Civil Procedure 45 subpoena on the internet service provider seeking the name and address associated with IP address 98.116.101.253. - The internet service provider must notify the affected subscriber and provide the subscriber with the subpoena and the court’s order within 15 days after being served. - The subscriber has 45 days after service to file a motion challenging the subpoena, including a request to litigate anonymously. The provider may not disclose the information during that period. - If the 45-day period expires without a challenge, the provider must produce the information within 10 additional days. - The provider may also challenge the subpoena, but its filings must not disclose identifying information to Strike 3. - If a challenge is filed, the provider may not disclose the information until the court resolves the challenge and orders disclosure. The provider must preserve the subpoenaed information while the challenge is pending.

The court therefore authorized early identification discovery but did not decide whether John Doe committed copyright infringement.