Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that John Doe—then known only through the Internet Protocol address 96.239.56.249—illegally downloaded and distributed Strike 3’s copyrighted adult motion pictures using the BitTorrent file-sharing protocol. Strike 3 asked for permission to serve Verizon Fios, the internet service provider associated with the address, with a subpoena under Federal Rule of Civil Procedure 45. The subpoena sought Doe’s true name and address so Strike 3 could pursue the case.

The request came before the parties’ initial conference and therefore required court authorization under Rule 26(d)(1), which generally limits discovery before the parties have met and discussed the case. The court applied the Southern District of New York’s flexible standard of reasonableness and good cause and considered five factors identified by the Second Circuit: the strength of the preliminary claim, the specificity of the request, whether other ways existed to obtain the information, the information’s importance to the case, and the defendant’s privacy expectation.

Court’s Analysis

The court found that all five factors favored Strike 3. First, Strike 3 made a preliminary showing of copyright infringement by identifying its copyrighted works and describing alleged unauthorized copying and distribution supported by forensic evidence. Second, the proposed subpoena was narrowly limited to the name and address associated with the specified Internet Protocol address. Third, the court found that Verizon Fios was the only entity able to connect that address to a subscriber’s identity because BitTorrent activity is largely anonymous. Fourth, without the information, Strike 3 could not serve Doe or move the case forward. Fifth, the court concluded that Doe’s privacy interest was limited in the context of sharing copyrighted material and was outweighed by Strike 3’s need to learn Doe’s identity.

The court also issued a protective order because of the risk that an Internet Protocol address could be incorrectly linked to a person, potentially causing embarrassment, oppression, or undue burden.

Ruling and Conditions

Judge Paul A. Engelmayer granted Strike 3’s motion. The order permits Strike 3 to serve Verizon Fios with a Rule 45 subpoena seeking only John Doe’s true name and current and permanent address. Strike 3 may not request additional information, including an email address or telephone number.

Verizon Fios must serve Doe with the subpoena, the order, and a notice to the defendant within 60 days after the subpoena is served on Verizon. Doe then has 60 days after receiving notice to file a motion challenging the subpoena, including a request to cancel or change it, or to ask to litigate the subpoena anonymously. If Doe contests the subpoena, Verizon must not release the contact information until the court rules on the challenge.

If neither Doe nor Verizon contests the subpoena within the 60-day period, Verizon has 10 days to provide the requested 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 pending motion.