Strike 3 Holdings, LLC v. Doe
- Vernon Broderick
- 1:22-cv-09592
- U.S. District Court · Southern District of New York
- 5
In Strike 3 Holdings v. Doe, Judge Broderick authorized early subpoena discovery to identify an alleged copyright infringer while protecting the subscriber’s anonymity.
Strike 3 Holdings, LLC, John Doe, the unidentified Internet subscriber associated with the listed Internet Protocol address, and the subscriber’s Internet service provider.
What happened
In Strike 3 Holdings, LLC v. Doe, Strike 3 alleged that an unidentified person used BitTorrent to download and distribute its films without permission. The person was identified only by an Internet Protocol address.
Strike 3 asked to subpoena the Internet service provider 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, but recognized that the subscriber connected to an Internet address might not be the person who committed the alleged infringement.
Judge Vernon S. Broderick granted the motion. The provider must notify the subscriber, who has 45 days to challenge the subpoena anonymously or otherwise; the provider may not disclose identifying information during that period or while a challenge is pending.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 1:22-cv-09592
- Vernon Broderick
- Nov. 18, 2022
Background
Strike 3 Holdings, LLC sued John Doe, identified in the complaint as the subscriber assigned Internet Protocol address 65.78.19.122. Strike 3 alleged that the defendant used the BitTorrent file-sharing network to download, copy, and distribute Strike 3’s films without authorization, asserting direct copyright infringement. The defendant’s identity was unknown.
Strike 3 moved for permission to serve a third-party subpoena on the defendant’s Internet service provider before the parties held the conference generally required by Federal Rule of Civil Procedure 26(f). The subpoena sought the name and address associated with the specified Internet Protocol address.
Court’s Analysis
Federal Rule of Civil Procedure 26(d)(1) generally bars discovery before the Rule 26(f) conference unless the court authorizes it. The court applied a flexible standard asking whether Strike 3 had shown reasonableness and good cause for early discovery. It found that Strike 3 had stated a sufficient initial copyright-infringement claim for purposes of the motion and appeared to have no other way to identify the alleged infringer.
The court also recognized that the subscriber listed in an Internet service provider’s records might not be the person responsible for the alleged activity. A single wireless router may serve multiple users, including neighbors, passers-by, or members of the public using an unsecured network. The court therefore found it appropriate to establish procedures allowing the subscriber to challenge the subpoena before any identifying information was disclosed.
Ruling and Procedure
The court granted Strike 3’s motion for leave to serve a third-party subpoena, subject to specified protections. Strike 3 could immediately serve the subpoena on the Internet service provider, and the subpoena had to include a copy of the order.
The provider had 15 days after service to notify the affected subscriber and provide a copy of the subpoena and order. The subscriber then had 45 days after service to file a motion challenging the subpoena, including a request to proceed anonymously. The provider could not disclose subpoenaed information during that period.
If the 45-day period expired without a challenge, the provider had 10 additional days to produce the information needed to comply with the subpoena. The provider could also challenge the subpoena, but it had to protect the subscriber’s identifying information in its filings. If any challenge was filed, the provider could not disclose the information unless and until the court resolved the challenge and ordered disclosure. The court ordered the provider to preserve the information while any challenge was pending.
The order authorized early discovery; it did not decide whether John Doe committed copyright infringement.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.