Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 198.27.207.93

Filing 9

ORDER by Judge Laurel Beeler granting 8 Ex Parte Application to Take Early Discovery. (lblc1S, COURT STAFF) (Filed on 6/25/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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STRIKE 3 HOLDINGS, LLC,

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Case No.: 3:18-cv-03043-LB

Plaintiff,

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v.

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JOHN DOE SUBSCRIBER ASSIGNED IP
ADDRESS 198.27.207.93,

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ORDER GRANTING THE PLAINTIFF’S
EX PARTE MOTION TO TAKE EARLY
DISCOVERY
Re: ECF No. 8

Defendant.
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INTRODUCTION
The plaintiff Strike 3 Holdings owns the copyrights for several adult motion pictures. 1 It

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alleges that someone — the Doe defendant here — who uses the IP address 198.27.207.93

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infringed on those copyrights.2 Despite its own efforts, Strike 3 Holdings has not been able to

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identify the individual associated with that IP address. 3 Strike 3 Holdings now asks the court to let

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it serve a subpoena on non-party Sonic (Sonic.net), the Doe defendant’s internet service provider,

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Mot. – ECF No. 8 at 9. Citations refer to material in the Electronic Case File (“ECF”); pinpoint
citations are to the ECF-generated page numbers at the top of documents.

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Id.

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Id. at 14–15.

ORDER – No. 18-cv-03043-LB

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to learn the Doe defendant’s identity.4 Because Strike 3 Holdings has demonstrated that good

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cause exists to allow it to serve a subpoena, the court grants the motion.

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STATEMENT

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Strike 3 Holdings is the owner of several adult motion pictures distributed through its adult

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brands Blacked, Tushy, Vixen, and Blacked Raw.5 The motion pictures are registered with the

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United States Copyright Office or have complete applications pending. 6

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The Doe defendant, who uses the Sonic-provided IP address 198.27.207.93, used the file
distribution network known as “BitTorrent” to illegally download and distribute Strike 3
Holdings’s copyrighted movies.7 Through well-accepted geolocation technology, Strike 3 has

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United States District Court
Northern District of California

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traced each download made to the Doe defendant’s IP address to a physical address in the

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Northern District of California.8 Strike 3 Holdings’s investigator established direct “TCP/IP”

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connections with the defendant’s IP address while the defendant was using BitTorrent. 9 The

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investigator downloaded media files containing a digital copy of Strike 3’s copyrighted movies

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from the defendant.10 The “file hash” — a unique value that acts as a “fingerprint” identifying

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media files — confirmed that the files the investigator downloaded were downloaded from the

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defendant.11 The defendant “has been recorded infringing 59 movies over an extended period of

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time.”12 Strike 3 Holdings did not give the defendant permission or authorization to distribute its

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See generally id.

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Compl. – ECF No. 1 at 1 (¶ 3).

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Id. at 5–6 (¶¶ 32–33).

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Id. at 5 (¶ 24).

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Id. at 2 (¶ 9).

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Id. at 5 (¶ 25).

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Id. (¶ 26).

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Id. (¶ 27).

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Id. at 2 (¶ 4).

ORDER – No. 18-cv-03043-LB

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copyrighted movies.13 Strike 3 Holdings alleges that Sonic can identify the defendant through his

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or her IP address.14

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On May 22, 2018, Strike 3 Holdings filed a complaint against the Doe defendant alleging one

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claim for copyright infringement under the Copyright Act. 15 On June 15, 2018, Strike 3 Holdings

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filed an ex parte motion asking the court to allow it to serve Sonic with a subpoena under Federal

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Rule of Civil Procedure 45.16 Strike 3 Holdings says that the subpoena will be limited to the name

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and address of the individual/individuals associated with the Doe defendant’s IP address. 17

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GOVERNING LAW

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A court may authorize early discovery before the Rule 26(f) conference for the parties’ and

United States District Court
Northern District of California

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witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d). Courts within the

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Ninth Circuit generally consider whether a plaintiff has shown “good cause” for early discovery.

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See, e.g., IO Grp., Inc. v. Does 1–65, No. 10-4377 SC, 2010 WL 4055667, at *2 (N.D. Cal. Oct.

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15, 2010); Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275-77 (N.D. Cal. 2002);

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Tex. Guaranteed Student Loan Corp. v. Dhindsa, No. 1:10-cv-00335-LJO-SKO, 2010 WL

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2353520, at *2 (E.D. Cal. June 9, 2010); Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 202

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F.R.D. 612, 613–14 (D. Ariz. 2001) (collecting cases and standards). “Good cause may be found

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where the need for expedited discovery, in consideration of the administration of justice,

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outweighs the prejudice to the responding party.” Semitool, 208 F.R.D. at 276.

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In evaluating whether a plaintiff establishes good cause to learn the identity of a Doe

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defendant through early discovery, courts examine whether the plaintiff: (1) identifies the Doe

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defendant with sufficient specificity that the court can determine that the defendant is a real person

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Id. at 6 (¶ 38).

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Id. at 2 (¶ 5).

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Id. at 6–7 (¶¶ 35–39).

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Mot. – ECF No. 8.

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Proposed Order – ECF No. 8-4 at 1.

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ORDER – No. 18-cv-03043-LB

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who can be sued in federal court, (2) recounts the steps taken to locate and identify the defendant,

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(3) demonstrates that the action can withstand a motion to dismiss, and (4) shows that the

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discovery is reasonably likely to lead to identifying information that will permit service of process.

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Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999) (citations omitted).

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“‘[W]here the identity of alleged defendants [is not] known prior to the filing of a complaint[,] the

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plaintiff should be given an opportunity through discovery to identify the unknown defendants,

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unless it is clear that discovery would not uncover the identities, or that the complaint would be

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dismissed on other grounds.’” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999)

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(quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)).

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United States District Court
Northern District of California

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ANALYSIS
1. Strike 3 Holdings Establishes Good Cause for Early Discovery

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Strike 3 Holdings has made a sufficient showing under each of the four seescandy factors

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listed above to establish good cause to permit it to engage in early discovery to identify the Doe

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defendant.

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First, Strike 3 Holdings has identified the Doe defendant with sufficient specificity that the

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court can determine that he or she is a real person who can be sued in federal court. It alleges that

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the Doe defendant downloaded Strike 3 Holdings’s copyrighted adult motion pictures and

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distributed them over the BitTorrent network. 18 To download the movie, the Doe defendant had to

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direct his or her BitTorrent client to download the media file. 19 These facts indicate that the Doe

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defendant is an identifiable adult who likely is the primary subscriber of the IP address or

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someone who resides with and is known to the subscriber. Strike 3 Holdings also has traced each

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download made to the Doe defendant’s IP address to the Northern District of California, thus

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giving the court jurisdiction over the defendant and Strike 3’s federal claim. 20

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Compl. – ECF No. 1 at 5 (¶ 24), 6 (¶ 39).

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Mot. – ECF No. 8 at 17.

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Compl. – ECF No. 1 at 2 (¶¶ 8–9).

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ORDER – No. 18-cv-03043-LB

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Second, Strike 3 Holdings has recounted the steps taken to locate and identify the Doe

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defendant. The Doe defendant downloaded and distributed Strike 3 Holdings’s movies through his

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or her IP address, and his or her IP address was traced to this district. 21 The IP address is not

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sufficient for Strike 3 to identify the Doe defendant.

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Third, Strike 3 Holdings has demonstrated that its copyright claim could withstand a motion to
dismiss. A plaintiff “must satisfy two requirements to present a prima facie case of direct

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infringement: (1) [he or she] must show ownership of the allegedly infringed material and (2) [he

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or she] must demonstrate that the alleged infringers violate at least one exclusive right granted to

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copyright holders under 17 U.S.C. § 106.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146,

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1159 (9th Cir. 2007) (citing A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.

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United States District Court
Northern District of California

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2001)); see 17 U.S.C. § 501(a). Under Section 106, a copyright holder has the exclusive rights to

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reproduce, distribute, publicly display, perform, and create derivative works of the copyrighted

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work. Direct copyright infringement does not require intent or any particular state of mind. Fox

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Broad. Co, Inc. v. Dish Network, LLC, 905 F. Supp. 2d 1088, 1098–99 (C.D. Cal. 2012); Religious

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Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 1367 (N.D. Cal. 1995).

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Strike 3 Holdings alleges that it holds the copyrights for the adult motion pictures that the Doe

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defendant downloaded (and thus copied) and distributed the movies without its permission.22

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Strike 3 Holdings has sufficiently alleged a prima facie claim for copyright infringement.

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Fourth, Strike 3 Holdings has shown that the discovery it seeks is reasonably likely to lead to

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identifying information that will permit service of process on the Doe defendant. Strike 3 Holdings

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alleges that Sonic’s records should identify the Doe defendant.23

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Id.

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Id. at 5 (¶¶ 28–32).

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Id. at 2 (¶ 5).

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ORDER – No. 18-cv-03043-LB

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2. Protective Order
“[U]nder Rule 26(c), the Court may sua sponte grant a protective order for good cause

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shown.” McCoy v. Sw. Airlines Co., Inc., 211 F.R.D. 381, 385 (C.D. Cal. 2002). The court issues

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the limited protective order described below because the ISP subscriber may be an innocent third

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party, the subject matter of the suit deals with sensitive and personal matters.

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Here, as has been discussed by other courts in this district, the ISP subscribers may not be the

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individuals who infringed upon Strike 3 Holdings’s copyright. See, e.g., Pac. Century Int’l Ltd. v.

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Does 1-101, No. C-11-02533 (DMR), 2011 WL 5117424, at *2 (N.D. Cal. Oct. 27, 2011); see also

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IO Grp., Inc. v. Does 1–19, No. C 10-03851 SI, 2011 WL 772909, at *1 (N.D. Cal. Mar. 1, 2011)
(granting the plaintiff additional time to identify and serve the true defendant where a subscriber

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United States District Court
Northern District of California

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asserted that he did not infringe plaintiff’s work, suggesting that someone else used his IP address

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to infringe the plaintiff’s work, and the plaintiff claimed that it needed to take third-party

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discovery from the subscriber to try to identify who actually used the subscriber’s IP address to

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allegedly infringe the plaintiff’s work).

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Additionally, requests for pseudonymity have been granted when anonymity is necessary to

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preserve privacy in a matter of a sensitive and highly personal nature. See Does I Thru XXIII v.

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Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000). An allegation that an individual

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illegally downloaded adult motion pictures likely goes to matters of a sensitive and highly

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personal nature, including one’s sexuality.

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Accordingly, the court issues a protective order to the limited extent that any information

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regarding the Doe defendant released to Strike 3 Holding by the ISP will be treated as confidential

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for a limited duration. See IO Grp., Inc. v. Does 1–19, No. C 10-03851 SI, 2010 WL 5071605, at

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*2 (N.D. Cal. 2010). Specifically, Strike 3 Holdings must not publicly disclose that information

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until the Doe defendant has the opportunity to file a motion with this court to be allowed to

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proceed in this litigation anonymously and that motion is ruled on by the court. Id. If the Doe

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defendant fails to file a motion for leave to proceed anonymo usly within 30 days after his or her

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information is disclosed to Strike 3 Holdings’s counsel, this limited protective order will expire.

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Id. Given the potential embarrassment associated with being publicly accused of having illegally
ORDER – No. 18-cv-03043-LB

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downloaded adult motion pictures, if the Doe defendant includes identifying information within

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his or her request to proceed anonymously, the court finds good cause to order the papers filed

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under seal until the court has the opportunity to rule on the request. See id. at 3 (permitting party to

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file under seal a declaration with identifying information). If the Doe defendant includes

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identifying information with his or her request to proceed anonymously and the request is placed

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under seal, the court will direct the Doe defendant to submit a copy of the under-seal request to

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Strike 3 Holdings and will ensure that Strike 3 Holdings has time to respond.

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United States District Court
Northern District of California

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CONCLUSION
The court GRANTS Strike 3 Holdings’s Ex Parte Motion for Expedited Discovery with
respect to JOHN DOE subscriber assigned IP address 198.27.207.93 as follows.
1. IT IS HEREBY ORDERED that Strike 3 Holding may immediately serve a Rule 45

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subpoena on Sonic to obtain the Doe defendant’s true name and addresses. The subpoena must

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have a copy of this order attached.

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2. IT IS FURTHER ORDERED that the ISP will have 30 days from the date of service

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upon them to serve the Doe defendant with a copy of the subpoena and a copy of this order. The

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ISP may serve the Doe defendant using any reasonable means, including written notice sent to his

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or her last known address, transmitted either by first-class mail or via overnight service.

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3. IT IS FURTHER ORDERED that the Doe defendant will have 30 days from the date of

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service upon him or her to file any motions contesting the subpoena (including a motion to quash

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or modify the subpoena) with the court that issued the subpoena. If that 30-day period lapses

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without the Doe defendant contesting the subpoena, the ISP will have 10 days to produce the

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information responsive to the subpoena to Strike 3 Holdings.

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4. IT IS FURTHER ORDERED that the subpoenaed entity must preserve any subpoenaed
information pending the resolution of any timely- filed motion to quash.
5. IT IS FURTHER ORDERED that the ISP that receives a subpoena pursuant to this order

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must confer with Strike 3 Holdings and may not assess any charge in advance of providing the

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information requested in the subpoena. The ISP that receives a subpoena and elects to charge for
ORDER – No. 18-cv-03043-LB

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the costs of production must provide a billing summary and cost reports that serve as a basis for

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such billing summary and any costs claimed by the ISP.

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6. IT IS FURTHER ORDERED that Strike 3 Holdings must serve a copy of this order along
with any subpoenas issued pursuant to this order to the necessary entities.
7. IT IS FURTHER ORDERED that any information disclosed to Strike 3 Holdings in

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response to a Rule 45 subpoena may be used by Strike 3 Holdings solely for the purpose of

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protecting Strike 3 Holdings’s rights as set forth in its complaint.

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IT IS SO ORDERED.
Dated: June 25, 2018
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LAUREL BEELER
United States Magistrate Judge

United States District Court
Northern District of California

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ORDER – No. 18-cv-03043-LB

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