Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that John Doe, whom Strike 3 knew only through the Internet Protocol address 74.89.176.4, illegally downloaded and distributed Strike 3’s copyrighted adult motion pictures. Strike 3 sought permission under Federal Rule of Civil Procedure 26(d)(1) to serve a subpoena before the parties’ initial required meeting about the case.

Strike 3 proposed serving a Rule 45 subpoena on Verizon Fios, the internet service provider identified in its motion. The subpoena would seek only the true name and current and permanent address of the person associated with the Internet Protocol address. Strike 3 said that BitTorrent is largely anonymous and that Verizon Fios was the only entity able to connect the address to a subscriber’s identity.

Court’s analysis

The court applied a flexible “reasonableness and good cause” standard and considered five factors: whether Strike 3 had shown a concrete initial copyright claim, whether the request was specific, whether alternative ways existed to obtain the information, whether the information was needed to pursue the case, and Doe’s expectation of privacy.

The court found that all five factors favored Strike 3. It held that Strike 3 had alleged enough facts for an initial copyright-infringement claim, including ownership of copyrighted works, unauthorized copying, and alleged use of BitTorrent supported by forensic evidence. The court found the request for only the subscriber’s name and address sufficiently specific, found no alternative way to obtain the identity, and concluded that Strike 3 could not serve Doe or pursue the case without the information. It also found that Strike 3’s interest in identifying Doe outweighed Doe’s limited privacy interest in sharing copyrighted material, while recognizing a risk of mistaken identification, embarrassment, or undue burden.

Ruling and protections

The court granted Strike 3’s motion. Strike 3 may serve Verizon Fios with the Rule 45 subpoena, but may not request additional information such as an email address or telephone number. The order and a notice to Doe must accompany the subpoena.

Verizon Fios must notify Doe within 60 days after receiving the subpoena. Doe then has 60 days after receiving notice to file a motion challenging the subpoena, including a motion to quash or modify it, or to request permission to litigate anonymously. If Doe contests the subpoena, Verizon Fios must withhold the contact information until the court rules. If neither Doe nor Verizon Fios contests the subpoena within that period, Verizon Fios has 10 days to provide the responsive information to Strike 3. Any information disclosed may be used only to protect Strike 3’s rights described in its complaint.

The clerk was directed to close the motion at docket entry 6 and strike the court’s prior order at docket entry 8.