Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC sued an unidentified John Doe subscriber assigned IP address 67.83.24.201 for alleged copyright infringement. Strike 3 alleged that the defendant downloaded and distributed 32 of its copyrighted adult motion pictures through BitTorrent. Because the defendant was known only by an IP address, Strike 3 sought permission to serve a subpoena on the defendant’s internet service provider, Optimum Online, before the parties held the conference normally required by Federal Rule of Civil Procedure 26(f).

Court’s analysis

The court applied the standard requiring a flexible assessment of reasonableness and good cause for early discovery. It considered five factors: whether Strike 3 made a concrete initial showing of a copyright claim; whether the requested discovery was specific; whether other ways existed to obtain the information; whether the information was needed to pursue the claim; and the defendant’s expectation of privacy.

The court found that Strike 3 had alleged the two elements of copyright infringement: ownership of valid copyrights and unauthorized copying. Strike 3 identified copyright registrations and alleged that the defendant downloaded, copied, and distributed the works without authorization using BitTorrent. The court also found the request narrowly limited to the defendant’s true name and address, with no adequate alternative source for that information. The information was necessary to serve the defendant and pursue the lawsuit.

The court acknowledged that disclosure involving adult movies could cause embarrassment and that IP-address information could produce false positives. It nevertheless found that an internet subscriber has only a minimal privacy expectation in sharing copyrighted material and that Strike 3’s interest in learning the defendant’s name and address outweighed the privacy interest. To address the risk of embarrassment, oppression, or undue burden, the court ordered protections for the subpoena and the defendant’s identifying information.

Order

The court granted Strike 3’s application. Strike 3 may immediately serve Optimum Online with a subpoena under Federal Rule of Civil Procedure 45 seeking information identifying the defendant, specifically the defendant’s true name and current and permanent address. Strike 3 may not seek the defendant’s email addresses or telephone numbers under this order.

Optimum Online must notify the defendant within 60 days after being served. The defendant then has 60 days after receiving the subpoena and order to file a motion challenging the subpoena, including a motion to cancel or modify it. Optimum Online may not disclose identifying information before that period ends, or while a timely challenge is pending, unless the court later orders disclosure. If no challenge is filed, Optimum Online has 10 additional days to produce responsive information. The subpoenaed information may be used only to protect Strike 3’s rights described in the complaint. Judge Philip M. Halpern also directed that the subpoena and order be served with the notice to the defendant and that subpoenaed information be preserved while any timely challenge is resolved.