Strike 3 Holdings, LLC v. John Doe — Court Grants Early Subpoena to Identify BitTorrent Copyright Infringer

Background

Strike 3 Holdings, LLC filed a copyright infringement complaint against a John Doe defendant identified only by IP address 23.119.229.224. The company, which produces and distributes adult motion pictures through subscription websites and DVDs, alleged that the defendant used the BitTorrent file-sharing protocol to illegally copy and distribute 29 of its copyrighted works over an extended period. Because Strike 3 could identify the defendant only by the IP address assigned by internet service provider AT&T Internet, it filed an ex parte application seeking leave to serve a third-party subpoena on AT&T before the parties held their Rule 26(f) conference. No opposition was filed because no defendant had yet been named or served.

The subpoena sought only the true name and physical address of the subscriber assigned to the IP address. Strike 3 argued that without this identifying information, it could not serve the defendant or pursue the lawsuit to protect its copyrights. The court evaluated the request under Federal Rule of Civil Procedure 26(d)(1), which bars discovery before the Rule 26(f) conference unless the court authorizes it, and the three-factor test courts use for early discovery to identify unknown defendants.

The Court’s Holding

The court granted the motion, applying the three-factor test for early discovery to identify unknown defendants. First, the court found that Strike 3 had identified the missing party with sufficient specificity by tracing the IP address to a location within the Southern District of California using geolocation technology, demonstrating that the defendant was likely a real person subject to the court's jurisdiction. Second, the court found that Strike 3 had identified all previous steps taken to locate the defendant, including using online search engines, reviewing public records, and consulting with computer investigators and cybersecurity consultants, but had been unable to identify the defendant through these means.

Third, the court found that Strike 3 had established that its suit could withstand a motion to dismiss. The complaint alleged a prima facie case of direct copyright infringement by asserting ownership of the works, unauthorized copying and distribution by the defendant, and volitional conduct through the defendant's affirmative use of the BitTorrent network. The court also entered a limited protective order permitting the defendant to proceed pseudonymously as 'John Doe' for 60 days following service of the summons and complaint, finding good cause to protect the defendant's identity given the sensitive nature of the allegations and the potential for unscrupulous tactics.

Key Takeaways

• The court granted Strike 3 Holdings leave to serve a Rule 45 subpoena on AT&T Internet to obtain the name and physical address of the subscriber assigned IP address 23.119.229.224.
• The subpoena must include a copy of the court's order and allow AT&T Internet at least 45 days to comply with the request.
• Pursuant to 47 U.S.C. § 551(c)(2)(B), AT&T Internet must provide a copy of the order to the subscriber within 14 days of being served with the subpoena.
• The defendant has 21 days from receipt of the order to file any challenge to the subpoena, and AT&T Internet may move to quash before the compliance deadline without disclosing the information sought.
• The court entered a limited protective order allowing the defendant to proceed as 'John Doe' for 60 days after service of the summons and complaint to protect the defendant's privacy interests.

Why It Matters

This order illustrates the standard approach courts in the Southern District of California take when copyright holders seek early discovery to identify anonymous defendants in BitTorrent infringement cases. The decision applies the well-established three-factor test derived from Columbia Insurance and Gillespie, requiring plaintiffs to identify the missing party with sufficient specificity, identify all previous steps taken to locate the defendant, and establish that the suit could withstand a motion to dismiss.

The court's inclusion of a limited protective order reflects ongoing judicial concern about protecting the privacy of individuals accused of downloading adult content, while still allowing copyright holders to pursue legitimate infringement claims. The order balances the plaintiff's need to identify and serve the defendant against the potential for embarrassment and abusive litigation tactics, and it builds safeguards into the subpoena itself through the Cable Act notice requirement and the subscriber's window to challenge.