Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that John Doe used BitTorrent to download and distribute at least one of Strike 3’s films without authorization. Strike 3 said its infringement-detection system, VXN Scan, connected with the internet protocol address 24.189.172.229 while that address was using BitTorrent and downloaded one or more pieces of Strike 3’s works.

Because Strike 3 had only the internet protocol address, it moved under Federal Rule of Civil Procedure 26(d)(1) for permission to serve a subpoena before the parties’ required Rule 26(f) discovery conference. The proposed subpoena sought the true identity—specifically, the name and address—of the subscriber associated with that address from non-party internet service provider CSC Holdings LLC, also identified as Optimum Online.

Court’s Analysis

The court applied the standard requiring a showing of reasonableness and good cause for early discovery. For subpoenas seeking identifying information from an internet service provider, the court considered whether Strike 3 had made a preliminary showing of copyright infringement, whether the request was specific, whether alternative means existed to obtain the information, whether the information was needed, and the subscriber’s expectation of privacy.

The court found that Strike 3 had made a preliminary showing because it identified copyright-registration information and alleged that Doe copied and distributed original elements of Strike 3’s works. The court also found the request specific because it sought only the identity of the subscriber connected to the stated internet protocol address. It accepted Strike 3’s position that the provider was otherwise the only source of the subscriber’s identifying information and that the information was necessary to continue the case. Finally, the court found that internet service provider subscribers have only a minimal expectation of privacy in transmitting or distributing copyrighted material, while noting that procedural safeguards could address the risk of identifying the wrong person or causing undue embarrassment.

Ruling and Protections

Judge Ona T. Wang granted Strike 3’s motion for leave to serve a third-party subpoena. Strike 3 may immediately serve a Rule 45 subpoena on CSC Holdings seeking the name and address of the subscriber associated with 24.189.172.229, and it must include a copy of the order.

CSC Holdings must notify the subscriber within 30 days after receiving the subpoena and must not disclose identifying information for 45 days after serving the subscriber. During that 45-day period, the subscriber may challenge the subpoena or ask to proceed anonymously, and CSC Holdings may also challenge it. If a challenge is filed, disclosure must wait until the court resolves the challenge and orders disclosure. If no challenge is filed during the 45-day period, CSC Holdings has 10 additional days to provide the information and must preserve the subpoenaed information while any challenge is pending.

The court adjourned the Rule 26(f) initial conference scheduled for May 9, 2024, and extended Strike 3’s deadline to serve Doe to August 3, 2024.