Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 98.234.8.197 ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STRIKE 3 HOLDINGS, LLC, Case No. 21-cv-06809-PJH 8 Plaintiff, 9 v. ORDER GRANTING PLAINTIFF’S EX PARTE REQUEST TO TAKE EARLY 10 JOHN DOE SUBSCRIBER ASSIGNED DISCOVERY IP ADDRESS 98.234.8.197, 11 Re: Dkt. No. 8 Defendant. 12 13 14 Plaintiff Strike 3 Holdings, LLC (“Strike 3”) owns the copyrights for several adult 15 motion pictures. It alleges that someone—the Doe defendant here—who uses the IP 16 address 98.234.8.197 infringed on those copyrights. Despite its own efforts, Strike 3 has 17 not been able to identify the individual associated with that IP address. Strike 3 now asks 18 the court to let it serve a subpoena on non-party Comcast Cable, the Doe defendant’s 19 internet service provider, to learn the Doe defendant’s identity. Because Strike 3 has 20 demonstrated that good cause exists to allow it to serve a subpoena, the court GRANTS 21 the motion. 22 I. BACKGROUND 23 Strike 3 is the owner of several adult motion pictures distributed through its adult 24 brands Blacked, Blacked Raw, Tushy, and Vixen. Williamson Decl. at ¶ 13 (Dkt. 8-1 at 25 4). Strike 3 holds title to the intellectual property associated these brands, including the 26 copyrights to each of the motion pictures distributed through the brands’ sites and the 27 trademarks to each of the brand’s names and logos. Williamson Decl. at ¶ 13. 1 address 98.234.8.197, used the file distribution network known as “BitTorrent” to illegally 2 download and distribute Strike 3’s copyrighted movies. Through its infringement 3 detection system, “VXN Scan,” Strike 3 traced copying made over BitTorrent to 4 defendant’s IP address. See Williamson Decl. and Paige Decl. (Dkt. 8-1). Then, using a 5 well-accepted geolocation technology, Strike 3 traced the file sharing made to the Doe 6 defendant’s IP address to a physical address in the Northern District of California, 7 specifically in Alameda, California. Kennedy Decl. (Dkt. 8-1 at 31). Strike 3’s investigator 8 confirmed that an Internet user at the defendant’s IP address engaged in a BitTorrent 9 transaction that shared certain media files by analyzing a “packet capture” (“PCAP”) that 10 recorded the transaction. Paige Decl. ¶¶ 14-18 (Dkt. 8-1 at 22). The media files from the 11 PCAP correspond to Strike 3’s copyrighted material. Stalzer Decl. (Dkt. 8-1 at 25-26). 12 The defendant “has been recorded infringing 33 movies over an extended period of time.” 13 Compl. ¶ 4; see also Ex. A (Dkt. 1-1). Strike 3 did not give the defendant permission or 14 authorization to distribute its copyrighted movies. Strike 3 alleges that Comcast Cable 15 can identify the defendant through his or her IP address. 16 On September 1, 2021, Strike 3 filed a complaint against the Doe defendant 17 alleging one claim for copyright infringement under the Copyright Act. Dkt. 1. On 18 September 16, 2021, Strike 3 filed an ex parte motion asking the court to allow it to serve 19 Comcast Cable with a subpoena under Federal Rule of Civil Procedure 45. Dkt. 8. 20 Strike 3 says that the subpoena will be limited to the name and address of the 21 individual/individuals associated with the Doe defendant’s IP address. 22 II. DISCUSSION 23 A. Legal Standard 24 A court may authorize early discovery before the Rule 26(f) conference for the 25 parties’ and witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d). 26 Courts within the Ninth Circuit generally consider whether a plaintiff has shown “good 27 cause” for early discovery. See, e.g., Strike 3 Holdings, LLC v. JOHN DOE subscriber 1 Cal. Apr. 25, 2019); IO Grp., Inc. v. Does 1-65, No. C 10-4377 SC, 2010 WL 4055667, at 2 *2 (N.D. Cal. Oct. 15, 2010); Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 3 275-77 (N.D. Cal. 2002); Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 202 F.R.D. 4 612, 613-14 (D. Ariz. 2001) (collecting cases and standards). “Good cause may be found 5 where the need for expedited discovery, in consideration of the administration of justice, 6 outweighs the prejudice to the responding party.” Semitool, 208 F.R.D. at 276. 7 In evaluating whether a plaintiff establishes good cause to learn the identity of a 8 Doe defendant through early discovery, courts examine whether the plaintiff: (1) identifies 9 the Doe defendant with sufficient specificity that the court can determine that the 10 defendant is a real person who can be sued in federal court; (2) recounts the steps taken 11 to locate and identify the defendant; (3) demonstrates that the action can withstand a 12 motion to dismiss; and (4) shows that the discovery is reasonably likely to lead to 13 identifying information that will permit service of process. Columbia Ins. Co. v. 14 seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999) (citations omitted). “‘[W]here 15 the identity of alleged defendants [is not] known prior to the filing of a complaint[,] the 16 plaintiff should be given an opportunity through discovery to identify the unknown 17 defendants, unless it is clear that discovery would not uncover the identities, or that the 18 complaint would be dismissed on other grounds.’” Wakefield v. Thompson, 177 F.3d 19 1160, 1163 (9th Cir. 1999) (quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 20 1980)). 21 B. Analysis 22 1. Strike 3 Establishes Good Cause for Early discovery 23 An internet service provider (“ISP”) cannot disclose information correlating the 24 identity of a user unless authorized to do so by a court order. See 47 U.S.C. § 25 551(c)(2)(B) (“A cable operator may disclose such information if the disclosure is . . . 26 made pursuant to a court order authorizing such disclosure[.]”). Strike 3 has made a 27 sufficient showing under each of the four seescandy factors listed above to establish 1 the ISP. 2 First, Strike 3 has identified the Doe defendant with sufficient specificity that the 3 court can determine that he or she is a real person who can be sued in federal court. It 4 alleges that the Doe defendant downloaded Strike 3’s copyrighted adult motion pictures 5 and distributed them over the BitTorrent network. Doe defendant had to direct his or her 6 BitTorrent client to download the media file. These facts indicate that the Doe defendant 7 is an identifiable adult who likely is the primary subscriber of the IP address or someone 8 who resides with and is known to the subscriber. Strike 3 also has traced each download 9 made to the Doe defendant’s IP address to the Northern District of California, thus giving 10 the court jurisdiction over the defendant and Strike 3’s federal claim. 11 Second, Strike 3 has recounted the steps taken to locate and identify the Doe 12 defendant. The Doe defendant downloaded and distributed Strike 3’s movies through his 13 or her IP address, and his or her IP address was traced to this district. The IP address 14 alone is not sufficient for Strike 3 to identify the Doe defendant. 15 Third, Strike 3 has demonstrated that its copyright claim could withstand a motion 16 to dismiss. A plaintiff “must satisfy two requirements to present a prima facie case of 17 direct infringement: (1) [he or she] must show ownership of the allegedly infringed 18 material and (2) [he or she] must demonstrate that the alleged infringers violate at least 19 one exclusive right granted to copyright holders under 17 U.S.C. § 106.” Perfect 10, Inc. 20 v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th Cir. 2007) (citing A&M Records, Inc. v. 21 Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001)); see also 17 U.S.C. § 501(a). Under 22 § 106, a copyright holder has the exclusive rights to reproduce, distribute, publicly 23 display, perform, and create derivative works of the copyrighted work. Direct copyright 24 infringement does not require intent or any particular state of mind. Fox Broad. Co., Inc. 25 v. Dish Network, LLC, 905 F. Supp. 2d 1088, 1098-99 (C.D. Cal. 2012); Religious Tech. 26 Ctr. v. Netcom On-Line Commc'n Servs., Inc., 907 F. Supp. 1361, 1367 (N.D. Cal. 1995). 27 Strike 3 alleges that it holds the copyrights for the adult motion pictures that the Doe 1 sufficiently alleged a prima facie claim for copyright infringement. 2 Fourth, Strike 3 has shown that the discovery it seeks is reasonably likely to lead 3 to identifying information that will permit service of process on the Doe defendant. Strike 4 3 alleges that Comcast Cable’s records should identify the Doe defendant. 5 2. Protective Order 6 “[U]nder Rule 26(c), the Court may sua sponte grant a protective order for good 7 cause shown.” McCoy v. Southwest Airlines Co., Inc., 211 F.R.D. 381, 385 (C.D. Cal. 8 2002). The court issues the limited protective order described below because the ISP 9 subscriber may be an innocent third party, and the subject matter of the suit deals with 10 sensitive and personal matters. 11 Here, as has been discussed by other courts in this district, the ISP subscribers 12 may not be the individuals who infringed upon Strike 3’s copyright. See, e.g., Pacific 13 Century Intern. Ltd. v. Does 1-101, No. C-11-02533 (DMR), 2011 WL 5117424, at *2 14 (N.D. Cal. Oct. 27, 2011); see also IO Group, Inc. v. Does 1-19, No. C 10-03851 SI, 2011 15 WL 772909, at *1 (N.D. Cal. Mar. 1, 2011) (granting the plaintiff additional time to identify 16 and serve the true defendant where a subscriber asserted that he did not infringe 17 plaintiff’s work, suggesting that someone else used his IP address to infringe the 18 plaintiff’s work, and the plaintiff claimed that it needed to take third-party discovery from 19 the subscriber to try to identify who actually used the subscriber’s IP address to allegedly 20 infringe the plaintiff’s work). 21 Additionally, requests for pseudonymity have been granted when anonymity is 22 necessary to preserve privacy in a matter of a sensitive and highly personal nature. See 23 Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000). An 24 allegation that an individual illegally downloaded adult motion pictures likely goes to 25 matters of a sensitive and highly personal nature, including one’s sexuality. 26 Accordingly, the court issues a protective order to the limited extent that any 27 information regarding the Doe defendant released to Strike 3 by the ISP will be treated as 1 2010 WL 5071605, at *2 (N.D. Cal. 2010). Specifically, Strike 3 must not publicly 2 disclose that information until the Doe defendant has the opportunity to file a motion with 3 this court to be allowed to proceed in this litigation anonymously and that motion is ruled 4 on by the court. Id. If the Doe defendant fails to file a motion for leave to proceed 5 anonymously within 30 days after his or her information is disclosed to Strike 3’s counsel, 6 this limited protective order will expire. Id. Given the potential embarrassment 7 associated with being publicly accused of having illegally downloaded adult motion 8 pictures, if the Doe defendant includes identifying information within his or her request to 9 proceed anonymously, the court finds good cause to order the papers filed under seal 10 until the court has the opportunity to rule on the request. See id. at 3 (permitting party to 11 file under seal a declaration with identifying information). If the Doe defendant includes 12 identifying information with his or her request to proceed anonymously and the request is 13 placed under seal, the court will direct the Doe defendant to submit a copy of the under- 14 seal request to Strike 3 and will ensure that Strike 3 has time to respond. 15 III. CONCLUSION 16 For the foregoing reasons, the court GRANTS Strike 3’s Ex Parte Motion for 17 Expedited Discovery with respect to JOHN DOE subscriber assigned IP address 18 98.234.8.197. The court ORDERS as follows. 19 1. Strike 3 may serve the ISP with a Rule 45 subpoena commanding the ISP to 20 provide Strike 3 with the true name and address of the Doe defendant to whom the 21 ISP assigned an IP address as set forth on Exhibit A to the complaint. 22 2. Strike 3 may also serve a Rule 45 subpoena in the same manner as above on any 23 service provider that is identified in response to a subpoena as a provider of 24 Internet services to the Doe defendant. 25 3. Any ISP so served must serve the Doe defendant with a copy of the subpoena and 26 a copy of this order within 30 days. The ISP may serve the Doe defendant using 27 any reasonable means, including written notice sent to his or her last known 1 4. The Doe defendant may file with the court any motions contesting the subpoena 2 (including a motion to quash or modify the subpoena) within 30 days from the date 3 of service upon him or her. If that 30-day period lapses without the Doe defendant 4 contesting the subpoena, the ISP must produce the information responsive to the 5 subpoena to Strike 3 within 10 days. 6 5. The subpoenaed entity must preserve any subpoenaed information pending the 7 resolution of any timely-filed motion to quash. 8 6. The ISP that receives a subpoena pursuant to this order must confer with Strike 3 9 and may not assess any charge in advance of providing the information requested 10 in the subpoena. The ISP that receives a subpoena and elects to charge for the 11 costs of production must provide a billing summary and cost reports that serve as 12 a basis for such billing summary and any costs claimed by the ISP. 13 7. Any information disclosed to Strike 3 in response to a Rule 45 subpoena may be 14 used by Strike 3 solely for the purpose of protecting Strike 3’s rights as set forth in 15 its complaint. 16 IT IS SO ORDERED. 17 Dated: September 21, 2021 18 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 19 United States District Judge 20 21 22 23 24 25 26 27