Strike 3 Holdings, LLC v. Doe
- Vernon Broderick
- 1:23-cv-02189
- U.S. District Court · Southern District of New York
- 5
In Strike 3 Holdings v. Doe, Judge Broderick allowed early subpoena discovery to identify an alleged copyright infringer, with privacy protections.
Strike 3 Holdings may seek identifying information through an early subpoena. The unknown Internet subscriber associated with the specified Internet Protocol address receives notice and an opportunity to challenge the subpoena, including anonymously. The subscriber’s Internet service provider must follow the notice, nondisclosure, challenge, and preservation procedures in the order.
What happened
Strike 3 Holdings, LLC sued John Doe, identified only by an Internet Protocol address, for allegedly using BitTorrent to download and distribute its films without permission. Strike 3 said it needed the Internet subscriber’s identity to proceed.
The court allowed Strike 3 to serve the subscriber’s Internet service provider with a subpoena before the parties’ required early case meeting. The subpoena may seek the name and address associated with the specified Internet Protocol address, but the provider must first notify the subscriber and give the subscriber an opportunity to challenge the subpoena anonymously.
Judge Vernon S. Broderick granted the motion subject to procedures protecting the subscriber’s identity. The provider generally may not disclose the information during the challenge period or while any challenge is pending.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 1:23-cv-02189
- Vernon Broderick
- Apr. 7, 2023
Background
Strike 3 Holdings, LLC filed a complaint asserting direct copyright infringement. It alleged that John Doe used the BitTorrent file-sharing network to download and distribute Strike 3’s films without authorization. Doe was identified in the complaint only by the Internet Protocol address allegedly associated with the conduct: 72.69.98.62. Strike 3 stated that it did not know Doe’s identity.
Strike 3 moved for permission to serve a third-party subpoena before the parties’ conference required by Federal Rule of Civil Procedure 26(f). The court explained that discovery generally cannot begin before that conference unless the court permits it.
Reasoning
The court applied a flexible standard requiring reasonableness and good cause for early discovery. It found that Strike 3 had stated a preliminary copyright-infringement claim sufficient for purposes of the motion and appeared to have no other way to obtain the alleged infringer’s identity. The court also noted that the litigation could not proceed unless Doe could be identified.
The court recognized a risk that the person responsible for alleged infringement might not be the person or entity whose name and address appear in the Internet service provider’s billing records. A single wireless router may serve multiple users, including people who are not the subscriber. The court therefore found it appropriate to establish procedures allowing the subscriber to challenge the subpoena before personal information was disclosed.
Order
The court granted Strike 3’s motion for leave to serve a third-party subpoena, subject to privacy protections. Strike 3 may immediately serve the subpoena on Doe’s Internet service provider under Federal Rule of Civil Procedure 45, seeking the name and address associated with Internet Protocol address 72.69.98.62.
The provider must serve the affected subscriber with the subpoena and the court’s order within 15 days after being served. The subscriber then has 45 days from service of the subpoena to file a motion contesting it, including a request to litigate anonymously. The provider may not disclose subpoenaed information to Strike 3 during that period.
If the 45-day period expires without a challenge, the provider must produce the information necessary to comply with the subpoena within 10 days. The provider may also challenge the subpoena and must keep identifying information out of its filings. If a challenge is filed, the provider may not disclose the information until the court resolves the challenge and orders disclosure, and the provider must preserve the information while the challenge is pending.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.