Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 45.27.25.213 ( 2024 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 STRIKE 3 HOLDINGS, LLC, 10 Case No. 24-cv-07595-RS Plaintiff, 11 v. ORDER GRANTING LEAVE TO ISSUE 12 THIRD-PARTY SUBPOENA JOHN DOE SUBSCRIBER ASSIGNED IP 13 ADDRESS 45.27.25.213, 14 Defendant. 15 16 Plaintiff Strike 3 Holdings, LLC (“Strike 3”) seeks leave to file a subpoena to unmask a 17 Doe defendant it avers is illegally distributing its copyrighted pornographic films. Strike 3 has 18 determined Defendant’s Internet Protocol (“IP”) address, but only the Internet Service Provider 19 (“ISP”) associated with that address (in this instance, AT&T Inc. (“AT&T”)) can determine the 20 account holder to which that address was assigned. For the reasons below, Strike 3’s request for 21 leave to serve a third-party subpoena is granted. Strike 3 must notify Defendant they can proceed 22 anonymously in this case at the earliest possible opportunity. 23 A court may authorize early discovery before the Rule 26(f) conference for the parties’ and 24 witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d). Courts within the 25 Ninth Circuit generally consider whether a plaintiff has shown “good cause” for early discovery. 26 See, e.g., Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275–77 (N.D. Cal. 2002). 27 “Good cause may be found where the need for expedited discovery, in consideration of the 1 In evaluating whether a plaintiff has shown good cause to learn the identity of a Doe 2 defendant through early discovery, courts examine whether the plaintiff: (1) has identified the Doe 3 defendant with sufficient specificity that the court can determine if the defendant is a real person 4 who can be sued in federal court; (2) has recounted the steps taken to locate and identify the 5 defendant; (3) has demonstrated the action can withstand a motion to dismiss; and (4) has shown 6 discovery is reasonably likely to lead to identifying information that will permit service of process. 7 See Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578–80 (N.D. Cal. 1999) (citations 8 omitted). “[W]here the identity of alleged defendants [is not] known prior to the filing of a 9 complaint[,] the plaintiff should be given an opportunity through discovery to identify the 10 unknown defendants, unless it is clear that discovery would not uncover the identities, or the 11 complaint would be dismissed on other grounds.” Wakefield v. Thompson, 177 F.3d 1160, 1163 12 (9th Cir. 1999) (third alteration in original) (quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th 13 Cir. 1980)). 14 Strike 3 has been labeled a “copyright troll” that files extortive lawsuits. Strike 3 15 Holdings, LLC v. Doe, 351 F. Supp. 3d 160, 161 (D.D.C. 2018), rev’d and remanded, 964 F.3d 16 1203, 1205 (D.C. Cir. 2020). In the eyes of its detractors, Strike 3 profits from “the nexus of 17 antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs.” Ingenuity 18 13 LLC v. Doe, No. 12-cv-8333, 2013 WL 1898633, at *1 (C.D. Cal. May. 6, 2013). The 19 supposed scheme works like this: Strike 3 identifies thousands of IP addresses per year that 20 uploaded its copyrighted material. Strike 3, 351 F. Supp. 3d at 162 (summarizing many cases). It 21 files thousands of lawsuits and attempts to subpoena subscriber information. See Strike 3 22 Holdings, LLC v. Doe, No. 22-cv-5160, 2022 WL 5007963 (N.D. Cal. Oct. 4, 2022); see also 23 Strike 3 Holdings, LLC v. Doe, No. 22-cv-5088, 2022 WL 4467684 (N.D. Cal. Sept. 27, 2022). 24 When it succeeds, the subscriber learns he or she is being sued for uploading pornography. To 25 avoid embarrassment, the subscriber settles rather than pay high legal fees for a specialist in 26 copyright law and hope to be permitted to proceed anonymously. When a defendant does put up a 27 fight, the company usually drops the case. See Strike 3, 351 F. Supp. 3d at 162 (“These serial 1 litigants drop cases at the first sign of resistance, preying on low-hanging fruit and staying one 2 step ahead of any coordinated defense.”). 3 That said, pornography is entitled to copyright protections just like any other content. See 4 Jartech, Inc. v. Clancy, 666 F.2d 403, 405–06 (9th Cir. 1982). Strike 3 needs this third-party 5 subpoena to ascertain Defendant’s identity, see Wakefield, 177 F.3d at 1163, and its request 6 satisfies the seescandy factors, see 185 F.R.D. at 578. Strike 3 avers it does not seek to force 7 anyone to settle unwillingly and that it files only “strong cases against extreme infringers” who 8 engage in illegal downloading and large-scale unauthorized distribution of Strike 3’s content. 9 Dkt. 7-1, at 6. Strike 3 expressly “welcomes” an order “establishing procedural safeguards such as 10 allowing a defendant to proceed anonymously.” Id. at 12–13. To ensure no prejudice to the 11 possibly innocent account owner, courts routinely protect the identity of defendants in these cases 12 until, at least, further discovery reveals some information about them and whether they are likely 13 the perpetrator. 14 CONCLUSION 15 1. Plaintiff has established good cause exists to serve a third-party subpoena on AT&T. Its 16 request for leave to serve a third-party subpoena is granted. Strike 3 must attempt to ensure 17 Defendant knows, at the earliest possible opportunity, they may proceed anonymously in this case. 18 2. Plaintiff may serve AT&T with a Rule 45 subpoena commanding AT&T to provide 19 Plaintiff with the true name and address of the Defendant to whom AT&T assigned an IP address 20 as set forth in Exhibit B to the complaint. Plaintiff shall attach a copy of this Order to any such 21 subpoena. 22 3. Plaintiff may also serve a Rule 45 subpoena in the same manner as above on any service 23 provider that is identified in response to a subpoena as a provider of Internet services to 24 Defendant; the same requirements laid out for AT&T in this Order will also apply to any follow- 25 on orders pursuant hereto. 26 27 1 4. If AT&T qualifies as a “cable operator,” as defined by 47 U.S.C. § 522(5),1 then it shall 2 comply with 47 U.S.C. § 551(c)(2)(B)2 by sending a copy of this Order to Defendant. 3 5. Plaintiff shall also request that AT&T forward a copy of this Order to the subscriber, 4 regardless of whether the ISP qualifies as a cable operator. If AT&T declines, Plaintiff shall serve 5 a copy of this Order on Defendant either at the same time as or before any other service on or 6 communication with Defendant. 7 6. Plaintiff may use only the information disclosed in response to a Rule 45 subpoena 8 served on AT&T for the purpose of protecting and enforcing Plaintiff’s rights as set forth in its 9 complaint. Specifically, Plaintiff must not publicly disclose the information obtained based on 10 this subpoena without leave of the Court—at least until the Doe defendant has had an opportunity 11 to file a motion to proceed anonymously, or further discovery has been taken. All references to 12 Defendant’s identity must be redacted and filed under seal until further notice. 13 7. AT&T and/or any other ISP that receives a subpoena pursuant to this Order must confer 14 with Strike 3 and may not assess any charge in advance of providing the information requested in 15 the subpoena. The ISP that receives a subpoena and elects to charge for the costs of production 16 must provide a billing summary and cost reports that serve as a basis for such billing summary and 17 any costs claimed by the ISP. 18 8. AT&T and/or any other ISP that receives a subpoena pursuant to this Order must 19 preserve any subpoenaed information pending the resolution of any timely filed motion to dismiss. 20 21 IT IS SO ORDERED. 22 23 1 “[T]he term ‘cable operator’ means any person or group of persons (A) who provides cable 24 service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for, through any 25 arrangement, the management and operation of such a cable system.” 47 U.S.C. § 522(5). 26 2 “A cable operator may disclose such [personally identifiable] information if the disclosure is . . . made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such 27 order by the person to whom the order is directed[.]” 47 U.S.C. § 551(c)(2)(B). 1 2 Dated: November 20, 2024 3 RICHARD SEEBORG 4 Chief United States District Judge 5 6 7 8 9 10 11 e 12 13 14 15 16 6 Zz 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING LEAVE TO ISSUE THIRD-PARTY SUBPOENA CASE No. 24-cv-07595-RS