Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.231.214.39 ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 STRIKE 3 HOLDINGS, LLC, Case No. 5:23-cv-05468-EJD 9 Plaintiff, ORDER GRANTING LEAVE TO ISSUE THIRD-PARTY SUBPOENA 10 v. 11 JOHN DOE SUBSCRIBER ASSIGNED IP Re: ECF No. 7 ADDRESS 73.231.214.39, 12 Defendant. 13 14 Plaintiff Strike 3 Holdings, LLC (“Strike 3”) filed this action against an unknown 15 individual who allegedly used BitTorrent to illegally download and distribute Strike 3’s 16 copyrighted adult films. Strike 3 now seeks a subpoena to compel non-party Comcast Cable to 17 identify this unknown individual associated with the IP address 73.231.214.39. 18 Based on Strike 3’s submissions, the Court GRANTS leave to serve a subpoena with 19 specific conditions provided below. Most notably, because many courts have raised concerns that 20 Strike 3 could be pursuing potentially innocent ISP account owners who are often embarrassed 21 into early settlements, the identity of the Doe defendant SHALL be protected unless and until 22 further order by the Court. 23 I. BACKGROUND 24 Plaintiff Strike 3 Holdings, LLC owns the copyrights for several adult motion pictures that 25 are associated with and distributed through various adult websites, such as Vixen, MILFY, Slayed, 26 Blacked, Blacked Raw, Tushy, and Tushy Raw. Compl. ¶¶ 1–3. Using a specialized infringement 27 detection system it developed, Strike 3 discovered the IP address of the Doe Defendant who 1 allegedly infringed upon its copyrights. Id. ¶ 29. Specifically, the Complaint alleges that the 2 Defendant used BitTorrent’s file network to illegally download and distribute about eighty-nine 3 (89) of Strike 3’s copyrighted motion pictures between April and September 2023. Id. ¶¶ 29, 38; 4 see also id., Ex. A. 5 On October 24, 2023, Strike 3 filed the complaint in this case, asserting one claim of direct 6 copyright infringement and seeking an injunction and statutory damages. Compl. 7–8. 7 II. LEGAL STANDARD 8 A court may authorize early discovery before the Rule 26(f) conference for the parties’ and 9 witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d). Courts within the 10 Ninth Circuit generally consider whether a plaintiff has shown “good cause.” See, e.g., IO Grp., 11 Inc. v. Does 1–65, 2010 WL 4055667, at *2 (N.D. Cal. Oct. 15, 2010); Semitool, Inc. v. Tokyo 12 Electron Am., Inc., 208 F.R.D. 273, 275–77 (N.D. Cal. 2002). “Good cause may be found where 13 the need for expedited discovery, in consideration of the administration of justice, outweighs the 14 prejudice to the responding party.” Semitool, 208 F.R.D. at 276. 15 In evaluating whether a plaintiff establishes good cause to learn the identity of a Doe 16 defendant through early discovery, courts examine whether the plaintiff: 17 (1) identifies the Doe defendant with sufficient specificity that the court can determine that 18 the defendant is a real person who can be sued in federal court; 19 (2) recounts the steps taken to locate and identify the defendant; 20 (3) demonstrates that the action can withstand a motion to dismiss; and 21 (4) shows that the discovery is reasonably likely to lead to identifying information that will 22 permit service of process. 23 Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578–80 (N.D. Cal. 1999) (citations omitted). 24 “[W]here the identity of alleged defendants [is not] known prior to the filing of a complaint[,] the 25 plaintiff should be given an opportunity through discovery to identify the unknown defendants, 26 unless it is clear that discovery would not uncover the identities, or that the complaint would be 27 dismissed on other grounds.” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). 1 III. DISCUSSION 2 A. Strike 3’s Litigation History 3 Before turning to the merits of this application, the Court believes that an overview of 4 Strike 3’s litigation history would provide useful context for the Doe defendant or any other party 5 who may receive this Order. Especially given the informational disparity and matrix of 6 undesirable options facing an ISP subscriber served with such a complaint, this context will 7 hopefully reduce the prejudice that individual may face. 8 Strike 3 has filed thousands of similar lawsuits and requests to subpoena subscriber 9 information from ISPs, such as Comcast Cable. See, e.g., Strike 3 Holdings, LLC v. Doe, No. 23- 10 CV-04339-RS, 2023 WL 6542326, at *2 (N.D. Cal. Sept. 22, 2023) (collecting cases). At least 11 one federal judge has also openly characterized Strike 3 as a “copyright troll” that uses its 12 “swarms of lawyers [to] hound people who allegedly watch their content through BitTorrent.” 13 Strike 3 Holdings, LLC v. Doe, 351 F. Supp. 3d 160, 161–62 (D.D.C. 2018) (describing the 14 copyright troll’s strategy as “file a deluge of complaints; ask the court to compel disclosure of the 15 account holders; settle as many claims as possible; abandon the rest”), rev’d and remanded, 964 16 F.3d 1203 (D.C. Cir. 2020). 17 In practice, once subscribers are alerted that they are being sued for uploading 18 pornography, they may be pressured to quickly settle the matter to avoid the risk of having their 19 names publicly associated with the lawsuit or the costs of hiring an expensive copyright legal 20 specialist. See Strike 3 Holdings, LLC, 2023 WL 6542326, at *2; see also Strike 3 Holdings, 351 21 F. Supp. 3d at 162 (“[O]nce the ISP outs the subscriber, permitting them to be served as the 22 defendant, any future Google search of their name will turn-up associations with the websites 23 Vixen, Blacked, Tushy, and Blacked Raw.”). As a result, many innocent ISP subscribers would be 24 pressured to settle, even though several courts have observed that “ISP subscribers may not be the 25 individuals who infringed upon Strike 3’s copyright.” Strike 3 Holdings, LLC v. Doe, No. 3:23- 26 CV-01977-LB, 2023 WL 4003723, at *3 (N.D. Cal. May 9, 2023) (collecting cases); see also 27 Strike 3 Holdings, 351 F. Supp. 3d at 162 (“[I]nferring the person who pays the cable bill illegally 1 downloaded a specific file is even less trustworthy than inferring they watched a specific TV 2 show.”). Moreover, if a defendant moves to confront a “copyright troll” or exhibits any serious 3 resistance, the company can simply drop the case and avoid any unfavorable judicial rulings. See 4 Strike 3 Holdings, 351 F. Supp. 3d at 162 (“These serial litigants drop cases at the first sign of 5 resistance, preying on low-hanging fruit and staying one step ahead of any coordinated defense.”). 6 B. Good Cause 7 Turning to the merits of Strike 3’s ex parte application, the Court finds that Strike 3 has 8 demonstrated good cause for this early discovery under the four seescandy factors. 9 First, the Court finds that Strike 3 has identified the Doe defendant with sufficient 10 specificity for the Court to determine that he or she is a real person who may be sued in federal 11 court. The Complaint alleges that BitTorrent’s protocols require the activity of a human user to 12 share movies within the BitTorrent network. Compl. ¶¶ 19–27. Strike 3 also used Maxmind 13 geolocation technology to trace the IP address it procured through its VXN Scan detection 14 software to a geographic location within this district. Id. ¶¶ 9, 29. 15 Second, Strike 3 has recounted the steps it took to locate and identify the Doe defendant. 16 In addition to the geolocation and infringement detection technology already described, Strike 3 17 has attempted to associate the IP address with a defendant individual using various web search 18 tools and consultations with computer investigators and cyber security experts. ECF No. 7, at 18. 19 Third, Strike 3 has preliminarily demonstrated that its action can withstand a motion to 20 dismiss. “Plaintiffs must satisfy two requirements to present a prima facie case of direct 21 infringement: (1) they must show ownership of the allegedly infringed material and (2) they must 22 demonstrate that the alleged infringers violate at least one exclusive right granted to copyright 23 holders under 17 U.S.C. § 106.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th 24 Cir. 2007). A copyright holder’s rights under § 106 include the exclusive rights to reproduce, 25 distribute, publicly display, perform, and create derivative works of the copyrighted work. 17 26 U.S.C. § 106. Here, Strike 3 alleges that it owns the copyrights to adult movies that the Doe 27 defendant downloaded, copied, and distributed without permission. Compl. ¶¶ 29, 44. Accepting 1 these allegations as true, the Court finds that the Complaint may withstand a motion to dismiss. 2 Finally, Strike 3 has shown that the discovery it seeks is reasonably likely to lead to 3 identifying information that will permit service of process on the Doe defendant. Specifically, 4 Strike 3 only seeks the name and address of the Doe defendant, and has represented that the “only 5 entity that can correlate the IP address to its subscriber and identify Defendant as the person 6 assigned the IP address is Defendant’s ISP.” ECF No. 7, at 14 (citing BMG Rts. Mgmt. (US) LLC 7 v. Cox Commc’ns, Inc., 881 F.3d 293, 299 (4th Cir. 2018) (“[O]nly the ISP can match the IP 8 address to the subscriber’s identity.”)). 9 In sum, the Court finds that Strike 3 has satisfied all four seescandy factors and presented 10 good cause for its requested expedited discovery. 11 C. Protective Order 12 Even though Strike 3 is entitled to a pre-discovery subpoena, the Court retains authority 13 under Federal Rule of Civil Procedure 26(c) to grant a sua sponte protective order for good cause. 14 See, e.g., McCoy v. Sw. Airlines Co., 211 F.R.D. 381, 385 (C.D. Cal. 2002); Fed. R. Civ. P. 26(c). 15 In this case, the Court finds that there is good cause to implement limited protective measures to 16 shield a potential innocent and unwitting ISP subscriber from undue prejudice. Strike 3 does not 17 oppose establishing procedural safeguards to respect privacy interests. ECF No. 7, at 20–21. 18 Consistent with the protective measures undertaken by many other courts in this district, 19 the Court will employ procedures to treat as confidential any personal information regarding the 20 Doe defendant that Comcast Cable produces to Strike 3. The Court will also permit and consider 21 any request by the Doe defendant to proceed anonymously under a pseudonym. 22 IV. CONCLUSION 23 Based on the foregoing, the Court GRANTS Strike 3’s Ex Parte Application with respect 24 to Defendant John Doe, Subscriber Assigned IP Address 73.231.214.39, as follows: 25 1. Strike 3 MAY serve a Rule 45 subpoena on Comcast Cable (“ISP”), commanding the 26 ISP to provide Strike 3 with the true name and address of the Defendant to whom the 27 ISP assigned an IP address as set forth on Exhibit A to the Complaint. Strike 3 1 SHALL attach a copy of this Order to any such subpoena. 2 a. Strike 3 MAY serve a Rule 45 subpoena in the same manner as above on any 3 service provider that is identified in response to a subpoena as a provider of 4 Internet services to the Defendant. 5 b. If the ISP qualifies as a “cable operator” per 47 U.S.C. § 522(5), then it shall 6 comply with 47 U.S.C. § 551(c)(2)(B) by sending a copy of this Order to 7 Defendant. 8 2. Within thirty (30) days of being served by Strike 3, the ISP SHALL serve the Doe 9 defendant subscriber assigned the IP address 73.231.214.39 with a copy of the 10 subpoena and this Order. 11 3. Within thirty (30) days after he or she has been served with the subpoena and this 12 Order, the Doe defendant MAY file a motion to contest the subpoena, including a 13 motion to quash or modify the subpoena. The Doe defendant MAY appear and 14 proceed before this Court under a pseudonym by requesting that their personal 15 identifying information be filed under seal. 16 a. If the Doe defendant does not contest the subpoena within thirty days, the ISP may 17 produce the information responsive to Strike 3’s subpoena within ten (10) days. 18 4. Strike 3 MAY only use the information disclosed in response to its subpoena for the 19 purpose of protecting and enforcing its rights as set forth in the Complaint. Strike 3 20 MAY NOT publicly disclose the information obtained from its subpoena without leave 21 of this Court. All references to the Doe defendant’s identity SHALL be redacted and 22 filed under seal until further notice. 23 5. Comcast Cable or any other ISP that receives a subpoena pursuant to this Order 24 SHALL confer with Strike 3 and MAY NOT assess any charge in advance of 25 providing the information requested in the subpoena. The ISP that receives a subpoena 26 and elects to charge for the costs of production must provide a billing summary and 27 cost reports that serve as a basis for the billing summary and costs claimed by the ISP. 1 6. Comcast Cable or any other ISP that receives a subpoena pursuant to this Order 2 SHALL preserve any subpoenaed information pending the resolution of any timely 3 filed motion to dismiss. 4 IT IS SO ORDERED. 5 Dated: November 27, 2023 6 7 EDWARD J. DAVILA 8 United States District Judge 9 10 11 12 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28 || Case No.: 5:23-cv-05468-EJD ORDER GRANTING LEAVE TO ISSUE THIRD-PARTY SUBPOENA