Strike 3 Holdings, LLC v. Doe
- Vernon Broderick
- 1:22-cv-08788
- U.S. District Court · Southern District of New York
- 5
In Strike 3 Holdings v. Doe, Judge Broderick granted early discovery to identify an alleged BitTorrent copyright infringer, with privacy protections.
Strike 3 Holdings, LLC may seek the identity of the subscriber associated with Internet Protocol address 67.243.150.114. The unidentified internet subscriber receives notice and an opportunity to challenge the subpoena or seek anonymous litigation before identifying information is disclosed. The internet service provider must provide notice, preserve the information, and withhold disclosure while a challenge is pending.
What happened
Strike 3 Holdings, LLC sued John Doe, identified only by an Internet Protocol address, alleging that Doe used BitTorrent to download and distribute its films without permission. Strike 3 said it could not identify Doe without information from the internet service provider.
The company asked to serve a subpoena before the parties’ required initial discovery meeting. The court found that Strike 3 had shown a sufficient initial copyright claim and had no other apparent way to learn the defendant’s identity.
Judge Vernon S. Broderick granted Strike 3’s motion. The internet service provider must notify the subscriber, who has 45 days to challenge the subpoena or seek to remain anonymous; the provider generally cannot disclose identifying information until that period ends or the court resolves a challenge.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 1:22-cv-08788
- Vernon Broderick
- Nov. 10, 2022
Background
Strike 3 Holdings, LLC filed a direct copyright-infringement claim against John Doe. The complaint identified the defendant by the Internet Protocol address allegedly connected to unauthorized downloading, copying, and distribution of Strike 3’s films through the BitTorrent file-sharing network. Strike 3 did not know the defendant’s identity.
Strike 3 moved for permission to serve a third-party subpoena on the internet service provider before the parties held the discovery conference required by Federal Rule of Civil Procedure 26(f). The subpoena sought the name and address associated with Internet Protocol address 67.243.150.114.
Court’s Analysis
Federal Rule of Civil Procedure 26(d)(1) generally bars discovery before the Rule 26(f) conference unless the court permits it. The court applied a flexible reasonableness-and-good-cause standard. It found that Strike 3 had stated an initial copyright-infringement claim sufficient for this motion and appeared to have no other way to identify the alleged infringer. Without identifying the defendant, the litigation could not proceed.
The court also recognized that the subscriber connected to an Internet Protocol address may not be the person who engaged in the alleged infringement. A single wireless router can serve multiple users, including neighbors, passers-by, or members of the public. The court therefore required procedures allowing the subscriber to challenge the subpoena before personal information was disclosed. Strike 3 represented that it did not object to alleged infringers proceeding anonymously and was willing to accept a protective order.
Ruling and Required Procedure
Judge Vernon S. Broderick granted Strike 3’s motion for leave to serve a third-party subpoena, subject to protections for the unidentified internet subscriber. Strike 3 may immediately serve the subpoena on the internet service provider, attaching the order.
The provider must serve the subscriber with the subpoena and order within 15 days after receiving the subpoena. The subscriber then has 45 days after service to file a motion challenging the subpoena, including a request to litigate anonymously. The provider may not disclose the subpoenaed information during that 45-day period. If the subscriber does not challenge the subpoena, the provider must produce the necessary information within 10 days after the period ends. The provider may also challenge the subpoena, but it must protect the subscriber’s identifying information in its filings and must preserve the information while any challenge is pending. The order authorized early discovery; it did not decide whether copyright infringement occurred.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.