Strike 3 Holdings, LLC v. Doe
- Vernon Broderick
- 1:24-cv-00643
- U.S. District Court · Southern District of New York
- 5
Strike 3 Holdings v. Doe: Judge Broderick allowed early discovery to identify the subscriber, while protecting the subscriber’s chance to challenge disclosure anonymously.
Strike 3 Holdings may seek the unidentified subscriber’s name and address from the subscriber’s internet service provider. The subscriber receives notice and an opportunity to challenge the subpoena, including anonymously, before information is disclosed. The internet service provider must preserve the information and follow the order’s notice and disclosure procedures.
What happened
In Strike 3 Holdings, LLC v. Doe, Strike 3 Holdings 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’ initial required discovery meeting. The court found that Strike 3 had shown a sufficient initial copyright claim and appeared to have no other way to learn the person’s identity.
Judge Broderick granted the motion but required protections before any identity was disclosed. The subscriber must receive notice and has 45 days to challenge the subpoena, including by asking to proceed anonymously.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 1:24-cv-00643
- Vernon Broderick
- Apr. 1, 2024
Background
Strike 3 Holdings, LLC alleged that Defendant used the BitTorrent file-sharing network to download and distribute Strike 3’s films without authorization. Strike 3 asserted a claim for direct copyright infringement. Because Strike 3 did not know Defendant’s identity, the Complaint identified Defendant by the Internet Protocol address allegedly connected to the activity: 68.129.182.39.
Strike 3 moved for permission to serve a subpoena on Defendant’s internet service provider before the parties held the discovery conference normally required by Federal Rule of Civil Procedure 26(f). The subpoena sought the name and address associated with the Internet Protocol address.
Court’s Analysis
The court applied a flexible reasonableness-and-good-cause standard for discovery before the Rule 26(f) conference. It found that Strike 3 had stated an initial copyright-infringement claim sufficient for this motion and appeared to have no other way to obtain the alleged infringer’s identity. The court also noted that the case could not proceed unless Defendant was identified.
The court recognized a risk of mistaken identification because one Internet Protocol address may be associated with multiple users, including people using an unsecured residential network or a public network. It also recognized the risk that early disclosure could pressure an innocent subscriber to settle allegations involving pornography. Strike 3 represented that it did not object to alleged infringers proceeding anonymously, and the court found it appropriate to establish protections in advance.
Order
The court granted Strike 3’s Motion for Leave to Serve a Third-Party Subpoena, subject to specified procedures. Strike 3 may immediately serve the subpoena on Defendant’s internet service provider under Federal Rule of Civil Procedure 45, and the subpoena must include the order.
The internet service provider must notify the affected subscriber within 15 days after service. The subscriber then has 45 days after receiving the subpoena to ask the court to contest it, including by requesting permission to litigate anonymously. The provider may not disclose the requested information during that 45-day period.
If the subscriber does not file a challenge within 45 days, the provider must produce the information within 10 days afterward. The provider may also challenge the subpoena, but its filings must protect the subscriber’s identifying information. If a challenge is filed, the provider may not disclose the information until the court resolves the challenge and orders disclosure. The provider must preserve the subpoenaed information while any challenge is pending.
The order authorized early discovery and established procedures to protect an unidentified subscriber’s opportunity to contest disclosure. It did not decide whether Defendant committed copyright infringement.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.