Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that the John Doe defendant used the BitTorrent file-sharing network to download and distribute Strike 3’s copyrighted works. The defendant was identified in the caption by the internet protocol address 24.168.83.181. Strike 3 sought permission under Federal Rule of Civil Procedure 26(d)(1) to conduct discovery before the parties’ required Rule 26(f) conference by serving a Rule 45 subpoena on Spectrum, the internet service provider. The requested information was the defendant’s name and permanent address.

Court’s analysis

The court applied the flexible standard of reasonableness and good cause and considered five factors used for expedited discovery in infringement cases: whether the plaintiff made an initial showing of infringement, whether the request was specific, whether other ways existed to obtain the information, whether the information was needed to advance the claim, and the defendant’s expectation of privacy.

The court found that Strike 3 made an initial showing of copyright infringement by identifying the copyrighted works and providing allegations and supporting materials describing the alleged copying, including the dates and times involved. The request for the defendant’s name and address was specific. The court found no other reliable way to identify the defendant because BitTorrent provides substantial anonymity and identification required matching the alleged infringement dates and times with Spectrum’s subscriber records. Without the subpoena, Strike 3 would be unable to identify and serve the defendant, and the court noted that subscriber information could be lost through routine deletion. The court also concluded that internet service provider subscribers have only a minimal expectation of privacy in sharing copyrighted material.

Order

Judge Mary Kay Vyskocil granted Strike 3’s motion to serve the third-party subpoena. The order permits Strike 3 to serve Spectrum with a Rule 45 subpoena seeking the name and address of the defendant to whom Spectrum assigned the internet protocol address alleged in the complaint. Strike 3 must serve Spectrum with a copy of the order at the same time. If Spectrum qualifies as a cable operator under 47 U.S.C. § 522(5), it must comply with 47 U.S.C. § 551(c)(2)(B). Strike 3 may use information disclosed through the subpoena only to prosecute its claims in this action. The order terminated the motion at docket entry 6. The opinion did not decide whether the alleged infringement occurred.