Strike 3 Holdings, LLC v. Doe
- Lewis Kaplan
- 1:21-cv-10094
- U.S. District Court · Southern District of New York
- 6
In Strike 3 Holdings v. John Doe, Judge Moses allowed limited early discovery to identify an anonymous copyright defendant while protecting Doe’s privacy.
Strike 3 Holdings, LLC received permission to seek Doe’s name and mailing address from RCN. John Doe, the subscriber associated with IP address 209.122.245.3, received notice and an opportunity to challenge the subpoena, and identifying information was subject to confidentiality and sealing requirements. RCN was required to provide notice, preserve information, and delay production while any timely challenge was pending.
What happened
In Strike 3 Holdings, LLC v. John Doe, Strike 3 alleged that an unidentified internet subscriber used BitTorrent to copy and distribute 28 of its copyrighted adult movies. Strike 3 asked to subpoena the subscriber’s internet provider, RCN, for Doe’s name and address.
The court found that Strike 3 had made an initial showing of copyright infringement, that the request was narrow, and that RCN was the only identified source for the information. The court also considered the subscriber’s privacy and the possibility that someone else had used the internet connection.
Judge Moses granted the request subject to conditions: Strike 3 could seek only Doe’s name and mailing address, Doe had to receive notice and an opportunity to challenge the subpoena, and identifying information had to remain confidential unless the court ordered otherwise.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 1:21-cv-10094
- Lewis Kaplan
- Dec. 8, 2021
Background
Strike 3 Holdings, LLC alleged that the person identified in the complaint as “John Doe, subscriber assigned IP address 209.122.245.3” used the BitTorrent protocol to download, copy, and distribute 28 of Strike 3’s movies between February 17, 2021, and November 12, 2021. Strike 3 alleged that it owned registered copyrights in those movies and sought damages under 17 U.S.C. § 504.
Strike 3 asked for permission to serve an early subpoena on RCN, an entity it believed was Doe’s internet service provider. The subpoena would seek Doe’s name and address because Strike 3’s computer-forensics consultant stated that RCN was the only entity that could connect the IP address to the subscriber assigned to it during the relevant period.
Court’s analysis
Federal Rule of Civil Procedure 26(d)(1) generally bars discovery before the parties’ required discovery conference unless the court authorizes it. The court applied the five factors regularly used in this district for early discovery in internet copyright cases:
- whether the plaintiff made an initial showing of copyright infringement;
- whether the discovery request was specific;
- whether other ways existed to obtain the information;
- whether the information was necessary to pursue the claim; and
- the defendant’s expectation of privacy.
The court found that all five factors supported Strike 3. It concluded that Strike 3 had made an initial showing by asserting valid copyrights and presenting declarations stating that the IP address had engaged in unauthorized copying of at least one movie. The request was limited to Doe’s true name and mailing address. The court found that identifying Doe was necessary to continue the lawsuit and that RCN was the only identified source of that information.
The court also recognized a risk that the subscriber might not be the actual infringer because another person—such as a household member, guest, neighbor, or customer—could have used the internet connection. It therefore imposed conditions intended to reduce harassment, embarrassment, and mistaken identification.
Ruling and conditions
The court granted Strike 3’s application. Strike 3 could serve RCN with a subpoena under Federal Rule of Civil Procedure 45 for Doe’s name and mailing address only. Strike 3 could not seek Doe’s email address through the subpoena or otherwise, and it could not subpoena another internet provider without another court order.
Strike 3 could use Doe’s name and address only for this litigation. It could not disclose or threaten to disclose Doe’s identifying information, and filings containing that information had to be made under seal. Once identified, Doe could litigate anonymously unless the court ordered otherwise after Doe received notice and an opportunity to challenge disclosure.
RCN had to serve Doe with the subpoena and the order before producing information. Doe had 30 days after service to challenge the subpoena, including by seeking to quash or modify it. RCN could not provide identifying information before that period ended or while a timely challenge was pending. The order also required RCN to preserve subpoenaed information and addressed possible production charges.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.