Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 172.0.78.64 ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STRIKE 3 HOLDINGS, LLC, Case No. 23-cv-06053-EMC 8 Plaintiff, ORDER GRANTING PLAINTIFF’S EX 9 v. PARTE APPLICATION FOR LEAVE TO SERVE THIRD-PARTY 10 JOHN DOE SUBSCRIBER ASSIGNED IP SUBPOENA ADDRESS 172.0.78.64, 11 Defendant. Docket No. 7 12 13 14 Plaintiff Strike 3 Holdings, LLC has sued Defendant John Doe for copyright infringement. 15 According to Strike 3, John Doe has infringed 73 of Strike 3’s adult motion pictures using 16 BitTorrent protocol. Currently pending before the Court is Strike 3’s ex parte application for leave 17 to serve a third-party subpoena prior to a Rule 26(f) conference. 18 The Court has reviewed the application, the supporting declarations, and the complaint. 19 Based on these materials, the Court finds Strike 3 has sufficiently established that it is entitled to 20 the early discovery requested which will enable it to determine the true name and address of John 21 Doe. The Court, however, takes this opportunity to endorse the recent decision of Judge Seeborg 22 in Strike 3 Holdings, LLC v. Doe, No. 23-cv-04339-RS, 2023 U.S. Dist. LEXIS 169496 (N.D. Cal. 23 Sept. 22, 2023). This Court’s rulings below are consistent with Judge Seeborg’s decision. 24 Finally, the Court notes that, although it is authorizing Strike 3 to take the discovery 25 requested, it is not precluding John Doe from filing a 12(b)(6) motion to dismiss nor is it 26 prejudging any such motion. The Court also advises Strike 3 that, upon obtaining the name and 27 address of John Doe, it has a Rule 11 obligation to determine whether to proceed with the lawsuit 1 Gonzales, 901 F.3d 1142, 1144 (9th Cir. 2018) (stating that “a bare allegation that a defendant is 2 the registered subscriber of an Internet Protocol (‘IP’) address associated with infringing activity is 3 [in]sufficient to state a claim for direct or contributory infringement”). 4 Accordingly, it is hereby ORDERED as follows: 5 1. Strike 3 has established that good cause exists to serve a third-party subpoena on 6 AT&T Internet (the “ISP”). Its motion is therefore granted. 7 2. Strike 3 may serve the ISP with a Rule 45 subpoena commanding the ISP to 8 provide Strike 3 with the true name and address of John Doe to whom the ISP assigned an IP 9 address as set forth in Exhibit A to the Complaint. Strike 3 shall attach a copy of this Order to any 10 such subpoena and a copy of Judge Seeborg’s decision. 11 3. Strike 3 may also serve a Rule 45 subpoena in the same manner as above on any 12 service provider that is identified in response to a subpoena as a provider of Internet services to 13 John Doe; the same requirements laid out for AT&T Internet in this Order will also apply to any 14 follow-on orders pursuant hereto. 15 4. If the ISP qualifies as a “cable operator,” as defined by 47 U.S.C. § 522(5), then it 16 shall comply with 47 U.S.C. § 551(c)(2)(B) by sending a copy of this Order to John Doe. 17 5. Strike 3 shall also request the ISP forward a copy of this Order to the subscriber, 18 regardless of whether the ISP qualifies as a cable operator. If the ISP declines, Strike 3 shall serve 19 a copy of this Order on John Doe simultaneous to or before any other service or communication to 20 Strike 3. Strike 3 must file a copy of its request to the ISP on the docket. Alternatively to the 21 other requirements in this paragraph, Strike 3 may file an affidavit that it attests the ISP has 22 forwarded this order to John Doe before attempting to serve or communicate with John Doe. 23 6. Strike 3 may only use the information disclosed in response to a Rule 45 subpoena 24 served on the ISP for the purpose of protecting and enforcing Strike 3’s rights as set forth in its 25 Complaint. Specifically, Strike 3 must not publicly disclose the information obtained based on 26 this subpoena without leave of the Court – at least until John Doe has had an opportunity to file a 27 motion to proceed anonymously, or further discovery has been taken. All references to John 1 6. Strike 3 must first file an affidavit confirming it proposed confidentiality to John 2 || Doe, as it has represented it would. This filing must contain the relevant communications 3 concerning any proposed agreement, e.g., copies of emails related to confidentiality, or 4 || descriptions of conversations with Defendant. 5 7. AT&T Internet, and/or any other ISP that receives a subpoena pursuant to this 6 Order, must preserve any subpoenaed information pending the resolution of any timely filed 7 motion to dismiss. 8 9 IT IS SO ORDERED. 10 11 Dated: December 11, 2023 12 13 oe ape 4 EDWARD M. CHEN 5 United States District Judge 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28