Strike 3 Holdings, LLC v. Doe
- Paul Engelmayer
- 1:22-cv-04770
- U.S. District Court · Southern District of New York
- 7
In Strike 3 v. John Doe, Judge Engelmayer granted early discovery allowing Strike 3 to subpoena Verizon Fios for Doe’s name and addresses.
Strike 3 Holdings, LLC may obtain limited identifying information from Verizon Fios about John Doe, while Doe receives notice and an opportunity to challenge the subpoena or proceed anonymously.
What happened
In Strike 3 Holdings, LLC v. John Doe, Strike 3 alleged that an unidentified person using a specified Internet Protocol address illegally downloaded and distributed its copyrighted adult motion pictures. Strike 3 asked to subpoena Verizon Fios, the Internet service provider, for the person’s identity and address before the parties’ initial conference.
The court found that Strike 3 had shown a sufficient initial copyright-infringement claim, that its request was limited to the user’s name and address, and that Verizon Fios was the only practical source of that information. The court also found that the information was necessary to serve the defendant and pursue the case, and that Strike 3’s need outweighed the defendant’s limited privacy interest.
Judge Paul A. Engelmayer granted Strike 3’s motion and authorized the subpoena, subject to protections for John Doe. Verizon Fios must notify Doe, who has 60 days to challenge the subpoena or ask to proceed anonymously; if no challenge is filed, Verizon Fios has 10 days to provide the requested information, which Strike 3 may use only to protect its rights in the lawsuit.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 1:22-cv-04770
- Paul Engelmayer
- July 1, 2022
Background
Strike 3 Holdings, LLC alleged that John Doe, whose identity it knew only through the Internet Protocol address 72.89.176.4, illegally downloaded and distributed Strike 3’s copyrighted adult motion pictures using the BitTorrent file-sharing protocol. Strike 3 asked for permission under Federal Rule of Civil Procedure 26(d)(1) to serve a subpoena before the parties’ required initial conference. The proposed subpoena sought information from Verizon Fios, the identified internet service provider, to determine Doe’s true name and current and permanent address.
Court’s Analysis
The court applied the flexible standard of reasonableness and good cause used for early discovery. It considered five factors identified by the U.S. Court of Appeals for the Second Circuit:
- Initial showing of harm: The court found that Strike 3 had adequately alleged a preliminary copyright-infringement claim by identifying its copyrighted works and describing the alleged unauthorized copying and distribution.
- Specificity of the request: The subpoena sought only the name and address associated with the specified Internet Protocol address.
- Lack of alternatives: Because BitTorrent is largely anonymous and the internet service provider is the entity that can connect an Internet Protocol address to a subscriber, the court found no practical alternative source for the information.
- Need for the information: Without the subpoena, Strike 3 could not identify or serve Doe and could not move the case forward.
- Privacy interest: The court recognized that allegations involving adult movies could cause embarrassment but concluded that Doe’s privacy interest in sharing copyrighted material was limited and outweighed by Strike 3’s interest in identifying the defendant.
The court also found a substantial risk of mistaken identification and therefore issued a protective order along with its authorization for the subpoena.
Ruling and Protective Measures
The court granted Strike 3’s motion. It authorized Strike 3 to serve Verizon Fios with a Rule 45 subpoena seeking only John Doe’s true name and current and permanent address. The subpoena may not request additional information, including an email address or telephone number, and must include the court’s order and the attached notice to Doe.
Verizon Fios has 60 days after receiving the subpoena to provide Doe with copies of the subpoena, the order, and the notice. Doe then has 60 days after receiving notice to challenge the subpoena, including by asking the court to cancel or change it, or to request permission to litigate anonymously. If Doe contests the subpoena, Verizon Fios must not release the contact information until the court rules on the challenge. If neither Doe nor Verizon Fios contests the subpoena within the 60-day period, Verizon Fios has 10 days to provide the responsive information. Strike 3 may use information disclosed under the subpoena only to protect its rights described in the complaint. The clerk was also directed to strike the court’s prior order at docket entry 9.
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.