Strike 3 Holdings, LLC v. Doe
- Vernon Broderick
- 1:22-cv-07794
- U.S. District Court · Southern District of New York
- 5
In Strike 3 Holdings v. John Doe, Judge Broderick allowed early subpoena discovery to identify an alleged copyright infringer, with protections preserving anonymity.
Strike 3 Holdings, LLC may seek the identity of the internet subscriber associated with the specified IP address. The subscriber and the internet service provider receive procedures allowing the subpoena to be challenged before identifying information is disclosed.
What happened
In Strike 3 Holdings, LLC v. John Doe, Strike 3 alleged that an unidentified person used the BitTorrent file-sharing network to download and distribute its films without permission. Because the person was identified only by an internet address, Strike 3 asked to subpoena the internet provider before the parties held their required discovery meeting.
The court found that Strike 3 had stated a sufficient initial copyright claim and appeared to have no other way to identify the alleged infringer. But the court recognized that the subscriber connected to an internet address might not be the person who committed the alleged infringement, so it created procedures to protect the subscriber’s identity and allow a challenge.
Judge Vernon S. Broderick granted the motion. The internet provider must notify the subscriber, who has 45 days to challenge the subpoena anonymously; the provider may not disclose identifying information until that period ends or the court resolves any challenge.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 1:22-cv-07794
- Vernon Broderick
- Oct. 13, 2022
Background
Strike 3 Holdings, LLC sued John Doe, identified in the complaint only by an internet protocol (IP) address, for alleged direct copyright infringement. Strike 3 alleged that Doe used BitTorrent to download and distribute Strike 3’s films without authorization. Strike 3 stated that it did not know Doe’s identity and moved for permission to serve a subpoena on Doe’s internet service provider before the parties’ required discovery conference under Federal Rule of Civil Procedure 26(f).
Court’s Reasoning
The court applied a flexible standard asking whether there was reason and good cause to allow discovery before the Rule 26(f) conference. It found that Strike 3 had stated an initial copyright-infringement claim sufficient for purposes of the motion and appeared to have no other way to learn the alleged infringer’s identity. The court also found that the case could not proceed unless Doe was identified.
The court recognized a risk of mistaken identification because the person or entity listed in an internet provider’s billing records may not be the person who engaged in the alleged activity. A single wireless router may serve many users, including neighbors, passers-by, or members of the public using internet access at a café or airport. The court therefore found it appropriate to protect the subscriber’s opportunity to challenge the subpoena before the subscriber’s identity was disclosed.
Order
The court granted Strike 3’s motion for permission to serve a third-party subpoena, subject to specified protections. Strike 3 may serve the subpoena under Federal Rule of Civil Procedure 45. The internet provider must serve the affected subscriber with the subpoena and the court’s order within 15 days after receiving the subpoena.
The subscriber has 45 days after service to file a motion challenging the subpoena, including a request to proceed anonymously. During that period, the provider may not disclose subpoenaed information to Strike 3. If no challenge is filed, the provider must produce the necessary information within 10 additional days. The provider may also challenge the subpoena, must protect the subscriber’s identity in its filings, and must preserve the information while any challenge is pending.
The caption identifies the subscriber’s IP address as 142.255.7.113, but the subpoena directive identifies IP address 74.71.82.135. The opinion does not explain this difference.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.