Strike 3 Holdings, LLC v. Doe
- Vernon Broderick
- 1:22-cv-01617
- U.S. District Court · Southern District of New York
- 5
In Strike 3 Holdings v. Doe, Judge Broderick granted leave for an early ISP subpoena while protecting the anonymous subscriber’s chance to challenge disclosure.
Strike 3 Holdings, LLC may seek the name and address associated with IP address 74.71.82.135. The affected Internet subscriber and the Internet service provider receive notice and procedures allowing them to contest disclosure before identifying information is released.
What happened
Strike 3 Holdings, LLC sued an unidentified defendant for allegedly using BitTorrent to download and distribute its films without permission. The defendant was identified only by the Internet Protocol address allegedly connected to that activity.
Strike 3 asked to subpoena the Internet service provider before the parties held their required discovery conference. The court found that Strike 3 had stated a sufficient initial copyright claim and appeared to have no other way to learn the defendant’s identity, but also recognized that an Internet subscriber may not be the person who committed the alleged infringement.
The court granted the motion and required notice and time to object before the provider could disclose identifying information. The subscriber may challenge the subpoena, including by asking to proceed anonymously; Judge Broderick also required the provider to preserve the information while any challenge is pending.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 1:22-cv-01617
- Vernon Broderick
- Mar. 11, 2022
Background
Strike 3 Holdings, LLC brought a direct copyright-infringement claim against John Doe, identified in the complaint by the Internet Protocol (IP) address 74.71.82.135. Strike 3 alleged that Doe used BitTorrent to download and distribute Strike 3’s films without authorization. The opinion states that Strike 3 produces adult films and distributes them to paying subscribers through its website.
Strike 3 moved for permission to serve a third-party subpoena on the Internet service provider before the parties’ required conference about discovery under Federal Rule of Civil Procedure 26(f). Strike 3 filed the complaint on February 27, 2022, and filed the motion on March 10, 2022.
Court’s Analysis
The court explained that discovery generally cannot begin before the Rule 26(f) conference unless the court orders otherwise. Applying a flexible standard requiring reasonableness and good cause, the court found that Strike 3 had stated an initial copyright-infringement claim sufficient for the motion and appeared to have no other way to identify the alleged infringer. The court also noted that the case could not proceed unless the defendant was identified.
The court recognized a risk that the person responsible for the alleged infringement might not be the person or entity whose name and address are associated with the IP address in the provider’s billing records. A single wireless router can serve multiple users, including neighbors, passers-by, or members of the public using a café or airport network. The court was concerned that an incorrect identification could pressure an innocent subscriber to settle, particularly because the allegations involved downloading pornographic films.
Ruling and Procedures
The court granted Strike 3’s motion for leave to serve a third-party subpoena, subject to procedures designed to give the Internet subscriber a fair opportunity to contest disclosure.
The order permits Strike 3 to immediately serve the provider with a Federal Rule of Civil Procedure 45 subpoena seeking the name and address associated with IP address 74.71.82.135. The subpoena must include a copy of the order. Within 15 days after service, the provider must serve the affected subscriber with the subpoena and the order.
The subscriber then has 45 days after receiving the subpoena to file a motion contesting it, including a request to litigate anonymously. The provider may not disclose the subpoenaed information during that period. If the 45-day period expires without a challenge, the provider must produce the information needed to comply with the subpoena within 10 additional days.
The provider may also challenge the subpoena, but its filings must not reveal the subscriber’s identifying information to Strike 3. If a challenge is filed, the provider may not disclose information until the court resolves the challenge and orders disclosure, and the provider must preserve the information while the challenge is pending.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.