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).

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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,

Case No. 21-cv-02480-LB

Plaintiff,

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v.

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JOHN DOE SUBSCRIBER ASSIGNED IP
ADDRESS 75.11.11.138,

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ORDER GRANTING EX-PARTE
APPLICATION FOR LEAVE TO
SERVE THIRD-PARTY SUBPOENA
Re: ECF No. 8

Defendant.
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INTRODUCTION

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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 75.11.11.138

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

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individual associated with that IP address. 3 Strike 3 now asks the court to let it serve a subpoena

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on non-party AT&T Internet Services, the Doe defendant’s internet-service provider, to learn the

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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.
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Compl. – ECF No. 1 at 2 (¶¶ 4–5).

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Appl. – ECF No. 8 at 18.

ORDER – No. 21-cv-02480-LB

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Doe defendant’s identity.4 Because Strike 3 has demonstrated that good cause exists to allow it to

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serve a subpoena, the court grants the motion.

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STATEMENT

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

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

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States Copyright Office. 6
The Doe defendant, who uses the AT&T Internet Services-provided IP address 75.11.11.138,

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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

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United States District Court
Northern District of California

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download made to the Doe defendant’s IP address to a physical address in the Northern District of

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California.8 Using a proprietary infringement detection system called “VXN Scan,” Strike 3

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established direct “TCP/IP” connections with the defendant’s IP address while the defendant was

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using BitTorrent.9 VXN Scan downloaded media files containing a digital copy of Strike 3’s

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copyrighted movies from the defendant. 10 The “Info Hash” — the data that BitTorrent protocol

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uses to identify media files across the BitTorrent network — confirmed that the files that VXN

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Scan downloaded were downloaded from the defendant.11 The defendant “has been recorded

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infringing 93 movies over an extended period of time.”12 Strike 3 did not give the defendant

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See generally id.

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Compl. – ECF No. 1 at 1–2 (¶¶ 2–3).

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Id. at 6 (¶ 46).

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Id. at 2 (¶¶ 4–5).

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Id. (¶ 9).

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Id. at 5 (¶¶ 28–30).

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Id. (¶¶ 30–31).

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Id. 5–6 (¶ 36).

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Id. at 2 (¶ 4).

ORDER – No. 21-cv-02480-LB

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authorization to distribute its copyrighted movies.13 Strike 3 alleges that AT&T Internet Services

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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

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copyright infringement under the Copyright Act. 15 On April 22, 2021, Strike 3 filed an ex parte

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application asking the court to allow it to serve AT&T Internet Services with a subpoena under

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Federal Rule of Civil Procedure 45.16 Strike 3 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.
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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who can be sued in federal court, (2) recounts the steps taken to locate and identify the defendant,

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Id. at 6 (¶ 44).

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Id. at 2 (¶ 5).

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Id. at 6‒7 (¶¶ 48–53).

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Appl. – ECF No. 8 at 10.

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Id.

ORDER – No. 21-cv-02480-LB

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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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ANALYSIS

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United States District Court
Northern District of California

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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

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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

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

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defendant downloaded Strike 3’s copyrighted adult motion pictures and distributed them over the

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BitTorrent network.18 To download the movie, the Doe defendant had to direct his or her

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BitTorrent client to download the media file. 19 These facts indicate that the Doe defendant is an

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identifiable adult who likely is the primary subscriber of the IP address or someone who resides

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with and is known to the subscriber. Strike 3 also has traced each download made to the Doe

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defendant’s IP address to the Northern District of California, thus giving the court jurisdiction

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

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Second, Strike 3 has recounted the steps taken to locate and identify the Doe defendant. The

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Doe defendant downloaded and distributed Strike 3’s movies through his or her IP address, and

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Compl. – ECF No. 1 at 6 (¶¶ 44, 46).

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Appl. – ECF No. 8 at 16.

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Compl. – ECF No. 1 at 2–3 (¶¶ 8–11).

ORDER – No. 21-cv-02480-LB

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his or her IP address was traced to this district. 21 The IP address is not sufficient for Strike 3 to

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identify the Doe defendant. 22
Third, Strike 3 has demonstrated that its copyright claim could withstand a motion to dismiss.

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A plaintiff “must satisfy two requirements to present a prima facie case of direct infringement:

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

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demonstrate that the alleged infringers violate at least one exclusive right granted to copyright

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holders under 17 U.S.C. § 106.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th

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Cir. 2007) (citing A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001)); see

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

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distribute, publicly display, perform, and create derivative works of the copyrighted work. Direct

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United States District Court
Northern District of California

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copyright infringement does not require intent or any particular state of mind. Fox Broad. Co, Inc.

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

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Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 1367 (N.D. Cal. 1995). Strike 3 alleges

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that it holds the copyrights for the adult motion pictures that the Doe defendant downloaded (and

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thus copied) and distributed the movies without its permission.23 Strike 3 has sufficiently alleged a

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prima facie claim for copyright infringement.

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

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

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Defendant’s ISP, AT&T Internet Services can identify the Doe defendant through his or her IP

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address.24

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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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Id. at 2 (¶¶ 9–10).

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Appl. – ECF No. 8 at 18.

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Compl. – ECF No. 1 at 6 (¶¶ 44, 46).

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Id. at 2 (¶ 5).

ORDER – No. 21-cv-02480-LB

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

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party and 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’s copyright. See, e.g., Pac. Century Int’l Ltd. v. Does 1–

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

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Grp., Inc. v. Does 1–19, No. C 10-03851 SI, 2011 WL 772909, at *1 (N.D. Cal. Mar. 1, 2011)

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(granting the plaintiff additional time to identify and serve the true defendant where a subscriber

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

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United States District Court
Northern District of California

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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 by the ISP will be treated as confidential for a

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limited duration. See IO Grp., Inc. v. Does 1–19, No. C 10-03851 SI, 2010 WL 5071605, at *2

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(N.D. Cal. 2010). Specifically, Strike 3 must not publicly disclose that information until the Doe

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defendant has the opportunity to file a motion with this court to be allowed to proceed in this

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litigation anonymously and that motion is ruled on by the court. Id. If the Doe defendant fails to

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file a motion for leave to proceed anonymously within 30 days after his or her information is

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disclosed to Strike 3’s counsel, this limited protective order will expire. Id. Given the potential

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embarrassment associated with being publicly accused of having illegally downloaded adult

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motion pictures, if the Doe defendant includes identifying information within his or her request to

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proceed anonymously, the court finds good cause to order the papers filed under seal until the

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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

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declaration with identifying information). If the Doe defendant includes identifying information

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with his or her request to proceed anonymously and the request is placed under seal, the court will

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direct the Doe defendant to submit a copy of the under-seal request to Strike 3 and will ensure that

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Strike 3 has time to respond.

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CONCLUSION

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The court GRANTS Strike 3’s Ex Parte Motion for Expedited Discovery with respect to

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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

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subpoena on AT&T Internet Services to obtain the Doe defendant’s true name and addresses. The

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United States District Court
Northern District of California

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subpoena must 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.

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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.

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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 and may not assess any charge in advance of providing the information

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requested in the subpoena. The ISP that receives a subpoena and elects to charge for the costs of

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production must provide a billing summary and cost reports that serve as a basis for such billing

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summary and any costs claimed by the ISP.

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ORDER – No. 21-cv-02480-LB

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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.

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7. IT IS FURTHER ORDERED that any information disclosed to Strike 3 in response to a

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Rule 45 subpoena may be used by Strike 3 solely for the purpose of protecting Strike 3’s rights as

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set forth in its complaint.

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IT IS SO ORDERED.

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Dated:
______________________________________
LAUREL BEELER
United States Magistrate Judge

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United States District Court
Northern District of California

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ORDER – No. 21-cv-02480-LB

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