Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that unidentified Defendant John Doe, identified in the caption as the subscriber assigned Internet Protocol address 173.77.237.42, distributed Strike 3’s copyrighted movies in violation of the Copyright Act. The opinion states that the movies contained pornographic material.

Strike 3 moved for permission to take expedited discovery—discovery conducted before the usual schedule—from Verizon Fios, a third-party Internet service provider, to learn John Doe’s name and address. The court found good cause for some expedited discovery because, without it, Strike 3 would not be able to identify John Doe or serve him with the lawsuit. The court also explained that Verizon Fios was effectively prohibited from disclosing the information without a court-ordered subpoena under the cited federal communications law.

Privacy and identification concerns

The court found that Strike 3’s proposed order did not adequately protect John Doe. It relied on the principle that an infringement traced to an Internet Protocol address does not necessarily establish that the subscriber was the infringer. Someone else with access to the connection, such as a child, neighbor, or houseguest, could have been responsible. The court identified a risk that the wrong person could be forced to defend against unsupported allegations or pressured into an unjust settlement.

The court said those concerns were heightened because the alleged infringement involved pornographic material, which could create pressure to settle because of possible embarrassment or public disclosure.

Order

The court allowed Strike 3 to conduct immediate discovery from Verizon Fios using a subpoena under Federal Rule of Civil Procedure 45. The subpoena must seek John Doe’s name and current and permanent address and must include a copy of the court’s order.

Strike 3 must immediately serve the order on Verizon Fios, and Verizon Fios must serve it on John Doe by a reasonable method, including first-class mail or overnight service to his last known address. John Doe has 60 days after service of the order to file a motion challenging the subpoena, including a motion to quash or modify it, or to request permission to litigate anonymously. Verizon Fios may not disclose identifying information to Strike 3 before that period ends.

If John Doe or Verizon Fios files a motion to quash, Verizon Fios may not disclose the information until the court resolves the issues and orders it to resume production. If the 60-day period expires without a challenge, Verizon Fios has 10 days to produce the subpoenaed information. Verizon Fios must preserve the information while a timely challenge is pending, may not charge Strike 3 in advance, and must provide a billing summary and cost report if it charges production costs. Any information disclosed may be used only to protect Strike 3’s rights described in its complaint. The Clerk was directed to close the motion at ECF No. 10.

The order concerned the procedure for identifying the defendant and did not decide whether John Doe committed copyright infringement.