Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that John Doe used BitTorrent to download and distribute at least one of Strike 3’s copyrighted films without authorization. Strike 3’s infringement-detection system allegedly connected with the Internet Protocol address associated with Doe and downloaded pieces of Strike 3’s works from that address. Because Strike 3 knew only the Internet Protocol address, it moved under Federal Rule of Civil Procedure 26(d)(1) for permission to serve a subpoena on nonparty Internet Service Provider Verizon Fios to obtain the subscriber’s name and address.

Court’s analysis

Before the parties’ required discovery conference, a party generally must obtain the court’s permission to seek discovery. The court applied a five-factor test for subpoenas seeking identifying information from an Internet Service Provider: whether the plaintiff had an initial case for infringement, whether the request was specific, whether other ways existed to obtain the information, whether the information was necessary, and the defendant’s privacy expectations.

The court found that Strike 3 had made an initial showing of copyright infringement by identifying its copyright registrations and alleging that Doe copied and distributed original parts of its works. The court also found the request specific because it sought only the identity of the subscriber associated with the identified Internet Protocol address. According to the court, Verizon Fios was the only practical source of the identifying information, making the subpoena necessary for continuing the case. Finally, the court found that Internet Service Provider subscribers have a limited expectation of privacy in transmitting or distributing copyrighted material. The court stated that safeguards could address the risk of identifying the wrong person and causing undue embarrassment.

Ruling and safeguards

The court granted Strike 3’s motion for permission to serve a third-party subpoena. Strike 3 could immediately serve Verizon Fios with a subpoena and a copy of the order. Verizon Fios had 30 days after service to give the subscriber copies of the subpoena and order. The subscriber then had 45 days after receiving the subpoena to challenge it, including by asking to proceed anonymously. Verizon Fios could not disclose identifying information before that period ended, or while a challenge remained unresolved. If no challenge was filed within 45 days, Verizon Fios would have 10 days to produce the information and was required to preserve the subpoenaed information while any challenge was pending.

The opinion’s body identifies the relevant Internet Protocol address as 71.105.203.38, but the conclusion authorizes a subpoena for a subscriber associated with 98.7.201.151. The opinion does not explain this discrepancy.