Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 75.11.11.138
Filing
9
*** FILED IN ERROR. PLEASE SEE DOCKET #10 *** Order. In the attached order, the court grants #8 the plaintiff's ex parte application for leave to serve a third-party subpoena.(lblc4S, COURT STAFF) (Filed on 4/27/2021) Modified on 4/28/2021 (ejkS, COURT STAFF).
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
San Francisco Division
United States District Court
Northern District of California
11
STRIKE 3 HOLDINGS, LLC,
Case No. 21-cv-02480-LB
Plaintiff,
12
v.
13
14
JOHN DOE SUBSCRIBER ASSIGNED IP
ADDRESS 75.11.11.138,
15
ORDER GRANTING EX-PARTE
APPLICATION FOR LEAVE TO
SERVE THIRD-PARTY SUBPOENA
Re: ECF No. 8
Defendant.
16
INTRODUCTION
17
The plaintiff Strike 3 Holdings owns the copyrights for several adult motion pictures. 1 It
18
19
alleges that someone — the Doe defendant here — who uses the IP address 75.11.11.138
20
infringed on those copyrights.2 Despite its own efforts, Strike 3 has not been able to identify the
21
individual associated with that IP address. 3 Strike 3 now asks the court to let it serve a subpoena
22
on non-party AT&T Internet Services, the Doe defendant’s internet-service provider, to learn the
23
24
25
26
27
28
Appl. – 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.
1
2
Compl. – ECF No. 1 at 2 (¶¶ 4–5).
3
Appl. – ECF No. 8 at 18.
ORDER – No. 21-cv-02480-LB
1
Doe defendant’s identity.4 Because Strike 3 has demonstrated that good cause exists to allow it to
2
serve a subpoena, the court grants the motion.
3
STATEMENT
4
Strike 3 is the owner of several adult motion pictures distributed through its adult brands
5
6
Blacked, Tushy, Vixen, and Blacked Raw.5 The motion pictures are registered with the United
7
States Copyright Office. 6
The Doe defendant, who uses the AT&T Internet Services-provided IP address 75.11.11.138,
8
9
used the file distribution network known as “BitTorrent” to illegally download and distribute
Strike 3’s copyrighted movies.7 Through geolocation technology, Strike 3 has traced each
11
United States District Court
Northern District of California
10
download made to the Doe defendant’s IP address to a physical address in the Northern District of
12
California.8 Using a proprietary infringement detection system called “VXN Scan,” Strike 3
13
established direct “TCP/IP” connections with the defendant’s IP address while the defendant was
14
using BitTorrent.9 VXN Scan downloaded media files containing a digital copy of Strike 3’s
15
copyrighted movies from the defendant. 10 The “Info Hash” — the data that BitTorrent protocol
16
uses to identify media files across the BitTorrent network — confirmed that the files that VXN
17
Scan downloaded were downloaded from the defendant.11 The defendant “has been recorded
18
infringing 93 movies over an extended period of time.”12 Strike 3 did not give the defendant
19
20
21
23
24
25
26
4
See generally id.
5
Compl. – ECF No. 1 at 1–2 (¶¶ 2–3).
6
22
Id. at 6 (¶ 46).
7
Id. at 2 (¶¶ 4–5).
8
Id. (¶ 9).
9
Id. at 5 (¶¶ 28–30).
10
27
28
Id. (¶¶ 30–31).
11
Id. 5–6 (¶ 36).
12
Id. at 2 (¶ 4).
ORDER – No. 21-cv-02480-LB
2
1
authorization to distribute its copyrighted movies.13 Strike 3 alleges that AT&T Internet Services
2
can identify the defendant through his or her IP address.14
On April 6, 2021, Strike 3 filed a complaint against the Doe defendant alleging one claim for
3
4
copyright infringement under the Copyright Act. 15 On April 22, 2021, Strike 3 filed an ex parte
5
application asking the court to allow it to serve AT&T Internet Services with a subpoena under
6
Federal Rule of Civil Procedure 45.16 Strike 3 says that the subpoena will be limited to the name
7
and address of the individual/individuals associated with the Doe defendant’s IP address.17
8
9
GOVERNING LAW
10
A court may authorize early discovery before the Rule 26(f) conference for the parties’ and
United States District Court
Northern District of California
11
witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d). Courts within the
12
Ninth Circuit generally consider whether a plaintiff has shown “good cause” for early discovery.
13
See, e.g., IO Grp., Inc. v. Does 1–65, No. 10-4377 SC, 2010 WL 4055667, at *2 (N.D. Cal. Oct.
14
15, 2010); Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275–77 (N.D. Cal. 2002);
15
Tex. Guaranteed Student Loan Corp. v. Dhindsa, No. 1:10-cv-00335-LJO-SKO, 2010 WL
16
2353520, at *2 (E.D. Cal. June 9, 2010); Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 202
17
F.R.D. 612, 613–14 (D. Ariz. 2001) (collecting cases and standards). “Good cause may be found
18
where the need for expedited discovery, in consideration of the administration of justice,
19
outweighs the prejudice to the responding party.” Semitool, 208 F.R.D. at 276.
In evaluating whether a plaintiff establishes good cause to learn the identity of a Doe
20
21
defendant through early discovery, courts examine whether the plaintiff: (1) identifies the Doe
22
defendant with sufficient specificity that the court can determine that the defendant is a real person
23
who can be sued in federal court, (2) recounts the steps taken to locate and identify the defendant,
24
26
27
28
13
Id. at 6 (¶ 44).
14
Id. at 2 (¶ 5).
15
25
Id. at 6‒7 (¶¶ 48–53).
16
Appl. – ECF No. 8 at 10.
17
Id.
ORDER – No. 21-cv-02480-LB
3
1
(3) demonstrates that the action can withstand a motion to dismiss, and (4) shows that the
2
discovery is reasonably likely to lead to identifying information that will permit service of process.
3
Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578–80 (N.D. Cal. 1999) (citations omitted).
4
“‘[W]here the identity of alleged defendants [is not] known prior to the filing of a complaint[,] the
5
plaintiff should be given an opportunity through discovery to identify the unknown defendants,
6
unless it is clear that discovery would not uncover the identities, or that the complaint would be
7
dismissed on other grounds.’” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999)
8
(quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)).
9
ANALYSIS
10
United States District Court
Northern District of California
11
1. Strike 3 Establishes Good Cause for Early Discovery
Strike 3 has made a sufficient showing under each of the four seescandy factors listed above to
12
13
establish good cause to permit it to engage in early discovery to identify the Doe defendant.
First, Strike 3 has identified the Doe defendant with sufficient specificity that the court can
14
15
determine that he or she is a real person who can be sued in federal court. It alleges that the Doe
16
defendant downloaded Strike 3’s copyrighted adult motion pictures and distributed them over the
17
BitTorrent network.18 To download the movie, the Doe defendant had to direct his or her
18
BitTorrent client to download the media file. 19 These facts indicate that the Doe defendant is an
19
identifiable adult who likely is the primary subscriber of the IP address or someone who resides
20
with and is known to the subscriber. Strike 3 also has traced each download made to the Doe
21
defendant’s IP address to the Northern District of California, thus giving the court jurisdiction
22
over the defendant and Strike 3’s federal claim. 20
23
Second, Strike 3 has recounted the steps taken to locate and identify the Doe defendant. The
24
Doe defendant downloaded and distributed Strike 3’s movies through his or her IP address, and
25
26
18
27
28
Compl. – ECF No. 1 at 6 (¶¶ 44, 46).
19
Appl. – ECF No. 8 at 16.
20
Compl. – ECF No. 1 at 2–3 (¶¶ 8–11).
ORDER – No. 21-cv-02480-LB
4
1
his or her IP address was traced to this district. 21 The IP address is not sufficient for Strike 3 to
2
identify the Doe defendant. 22
Third, Strike 3 has demonstrated that its copyright claim could withstand a motion to dismiss.
3
A plaintiff “must satisfy two requirements to present a prima facie case of direct infringement:
5
(1) [he or she] must show ownership of the allegedly infringed material and (2) [he or she] must
6
demonstrate that the alleged infringers violate at least one exclusive right granted to copyright
7
holders under 17 U.S.C. § 106.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th
8
Cir. 2007) (citing A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001)); see
9
17 U.S.C. § 501(a). Under Section 106, a copyright holder has the exclusive rights to reproduce,
10
distribute, publicly display, perform, and create derivative works of the copyrighted work. Direct
11
United States District Court
Northern District of California
4
copyright infringement does not require intent or any particular state of mind. Fox Broad. Co, Inc.
12
v. Dish Network, LLC, 905 F. Supp. 2d 1088, 1098–99 (C.D. Cal. 2012); Religious Tech. Ctr. v.
13
Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 1367 (N.D. Cal. 1995). Strike 3 alleges
14
that it holds the copyrights for the adult motion pictures that the Doe defendant downloaded (and
15
thus copied) and distributed the movies without its permission.23 Strike 3 has sufficiently alleged a
16
prima facie claim for copyright infringement.
17
Fourth, Strike 3 has shown that the discovery it seeks is reasonably likely to lead to identifying
18
information that will permit service of process on the Doe defendant. Strike 3 alleges that the Doe
19
Defendant’s ISP, AT&T Internet Services can identify the Doe defendant through his or her IP
20
address.24
21
22
2. Protective Order
“[U]nder Rule 26(c), the Court may sua sponte grant a protective order for good cause
23
24
shown.” McCoy v. Sw. Airlines Co., Inc., 211 F.R.D. 381, 385 (C.D. Cal. 2002). The court issues
25
27
28
21
Id. at 2 (¶¶ 9–10).
22
26
Appl. – ECF No. 8 at 18.
23
Compl. – ECF No. 1 at 6 (¶¶ 44, 46).
24
Id. at 2 (¶ 5).
ORDER – No. 21-cv-02480-LB
5
1
the limited protective order described below because the ISP subscriber may be an innocent third
2
party and the subject matter of the suit deals with sensitive and personal matters.
3
Here, as has been discussed by other courts in this district, the ISP subscribers may not be the
4
individuals who infringed upon Strike 3’s copyright. See, e.g., Pac. Century Int’l Ltd. v. Does 1–
5
101, No. C-11-02533 (DMR), 2011 WL 5117424, at *2 (N.D. Cal. Oct. 27, 2011); see also IO
6
Grp., Inc. v. Does 1–19, No. C 10-03851 SI, 2011 WL 772909, at *1 (N.D. Cal. Mar. 1, 2011)
7
(granting the plaintiff additional time to identify and serve the true defendant where a subscriber
8
asserted that he did not infringe plaintiff’s work, suggesting that someone else used his IP address
9
to infringe the plaintiff’s work, and the plaintiff claimed that it needed to take third-party
discovery from the subscriber to try to identify who actually used the subscriber’s IP address to
11
United States District Court
Northern District of California
10
allegedly infringe the plaintiff’s work).
12
Additionally, requests for pseudonymity have been granted when anonymity is necessary to
13
preserve privacy in a matter of a sensitive and highly personal nature. See Does I Thru XXIII v.
14
Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000). An allegation that an individual
15
illegally downloaded adult motion pictures likely goes to matters of a sensitive and highly
16
personal nature, including one’s sexuality.
17
Accordingly, the court issues a protective order to the limited extent that any information
18
regarding the Doe defendant released to Strike 3 by the ISP will be treated as confidential for a
19
limited duration. See IO Grp., Inc. v. Does 1–19, No. C 10-03851 SI, 2010 WL 5071605, at *2
20
(N.D. Cal. 2010). Specifically, Strike 3 must not publicly disclose that information until the Doe
21
defendant has the opportunity to file a motion with this court to be allowed to proceed in this
22
litigation anonymously and that motion is ruled on by the court. Id. If the Doe defendant fails to
23
file a motion for leave to proceed anonymously within 30 days after his or her information is
24
disclosed to Strike 3’s counsel, this limited protective order will expire. Id. Given the potential
25
embarrassment associated with being publicly accused of having illegally downloaded adult
26
motion pictures, if the Doe defendant includes identifying information within his or her request to
27
proceed anonymously, the court finds good cause to order the papers filed under seal until the
28
court has the opportunity to rule on the request. See id. at *3 (permitting party to file under seal a
ORDER – No. 21-cv-02480-LB
6
1
declaration with identifying information). If the Doe defendant includes identifying information
2
with his or her request to proceed anonymously and the request is placed under seal, the court will
3
direct the Doe defendant to submit a copy of the under-seal request to Strike 3 and will ensure that
4
Strike 3 has time to respond.
5
6
CONCLUSION
7
The court GRANTS Strike 3’s Ex Parte Motion for Expedited Discovery with respect to
8
JOHN DOE subscriber assigned IP address 75.11.11.138 as follows.
1. IT IS HEREBY ORDERED that Strike 3 Holding may immediately serve a Rule 45
10
subpoena on AT&T Internet Services to obtain the Doe defendant’s true name and addresses. The
11
United States District Court
Northern District of California
9
subpoena must have a copy of this order attached.
12
2. IT IS FURTHER ORDERED that the ISP will have 30 days from the date of service
13
upon them to serve the Doe defendant with a copy of the subpoena and a copy of this order. The
14
ISP may serve the Doe defendant using any reasonable means, including written notice sent to his
15
or her last known address, transmitted either by first-class mail or via overnight service.
16
3. IT IS FURTHER ORDERED that the Doe defendant will have 30 days from the date of
17
service upon him or her to file any motions contesting the subpoena (including a motion to quash
18
or modify the subpoena) with the court that issued the subpoena. If that 30-day period lapses
19
without the Doe defendant contesting the subpoena, the ISP will have 10 days to produce the
20
information responsive to the subpoena to Strike 3.
21
22
4. IT IS FURTHER ORDERED that the subpoenaed entity must preserve any subpoenaed
information pending the resolution of any timely-filed motion to quash.
23
5. IT IS FURTHER ORDERED that the ISP that receives a subpoena pursuant to this order
24
must confer with Strike 3 and may not assess any charge in advance of providing the information
25
requested in the subpoena. The ISP that receives a subpoena and elects to charge for the costs of
26
production must provide a billing summary and cost reports that serve as a basis for such billing
27
summary and any costs claimed by the ISP.
28
ORDER – No. 21-cv-02480-LB
7
1
2
6. IT IS FURTHER ORDERED that Strike 3 must serve a copy of this order along with any
subpoenas issued pursuant to this order to the necessary entities.
3
7. IT IS FURTHER ORDERED that any information disclosed to Strike 3 in response to a
4
Rule 45 subpoena may be used by Strike 3 solely for the purpose of protecting Strike 3’s rights as
5
set forth in its complaint.
6
7
IT IS SO ORDERED.
8
Dated:
______________________________________
LAUREL BEELER
United States Magistrate Judge
9
10
United States District Court
Northern District of California
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ORDER – No. 21-cv-02480-LB
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?