Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that John Doe, identified only through the Internet Protocol address 47.230.66.2, distributed Strike 3’s copyrighted adult movies in violation of the Copyright Act. Because Strike 3 did not know John Doe’s name or address, it moved under Federal Rule of Civil Procedure 26(d)(1) for permission to serve a third-party subpoena on Spectrum, the internet service provider associated with the address.

Legal standard and analysis

Rule 26(d)(1) generally prevents a party from seeking discovery before the parties hold their required discovery conference, unless the court orders otherwise. Courts in these circumstances apply a flexible good-cause standard. The court considered whether Strike 3 had made an initial showing of an actionable claim, whether the requested discovery was specific, whether other ways existed to obtain the information, whether the information was needed to advance the claim, and the subscriber’s expectation of privacy.

The court concluded that all factors favored Strike 3. It found that Strike 3 had made an initial showing of copyright infringement by describing its original works and providing a detailed analysis of the alleged copying. The requested discovery was limited to John Doe’s name and current and/or permanent address. The court also found that Strike 3 could not identify or serve John Doe without the expedited discovery and that the opinion cited no reasonable alternative for obtaining the identity. It further stated that internet-service-provider subscribers have a minimal expectation of privacy in sharing copyrighted material.

Ruling and conditions

Magistrate Judge Sarah Netburn granted Strike 3’s motion. Strike 3 may immediately serve Spectrum with a Rule 45 subpoena seeking only the name and current and/or permanent address of the subscriber associated with IP address 47.230.66.2. The subpoena must include the order and a notice to the defendant; it may not seek additional information such as an email address or telephone number.

The order also barred Strike 3 from initiating settlement discussions before serving the complaint unless the court grants permission, although Strike 3 may participate if the defendant initiates discussions. Spectrum must notify the defendant within 60 days after being served. The defendant then has 60 days to challenge the subpoena or request permission to litigate anonymously. Spectrum may not disclose identifying information before that period ends or before the court rules on a timely motion, whichever is later. If neither the defendant nor Spectrum contests the subpoena, Spectrum has 10 additional days to produce the responsive information. Strike 3 may use any disclosed information only to protect the rights described in its complaint. The court also directed the clerk to close Docket Number 6 and mark it granted.