Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.70.71.230

Filing 8

Order GRANTING 7 Ex Parte Application for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. Signed by Judge Araceli Martinez-Olguin on September 24, 2024. (amolc3, COURT STAFF) (Filed on 9/24/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STRIKE 3 HOLDINGS, LLC,

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Plaintiff,

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v.

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JOHN DOE SUBSCRIBER ASSIGNED IP
ADDRESS 73.70.71.230,

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United States District Court
Northern District of California

Case No. 24-cv-06060-AMO
ORDER GRANTING APPLICATION
FOR LEAVE TO FILE THIRD PARTY
SUBPOENA
Re: Dkt. No. 7

Defendant.

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Before the Court is Plaintiff Strike 3 Holdings, LLC’s (“Strike 3”) Ex Parte Application for

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Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference. Strike 3 seeks a

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subpoena to compel non-party Comcast Cable to identify the unknown individual associated with

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the IP address 73.70.71.230. Based on Strike 3’s submissions, the Court GRANTS leave to serve

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a subpoena with specific conditions provided below. Because many courts have raised concerns

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that Strike 3 could be pursuing potentially innocent ISP account owners who are often

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embarrassed into early settlements, the identity of the Doe Defendant SHALL be protected unless

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and until further order by the Court.

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I.

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BACKGROUND
Strike 3 owns the copyrights for several adult motion pictures that are associated with and

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distributed through various adult websites. Compl. ¶¶ 1-3 (ECF 1). Using a specialized

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infringement detection system it developed, Strike 3 discovered the IP address of the Doe

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Defendant who allegedly infringed upon its copyrights. Id. ¶¶ 28-29. Specifically, the Complaint

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alleges that the Defendant used BitTorrent’s file network to illegally download and distribute

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about 26 media files of Strike 3’s copyrighted material. Id. ¶¶ 29, 38; see also id., Ex. A.

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On August 27, 2024, Strike 3 filed the Complaint in this case, asserting one claim of direct

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copyright infringement and seeking an injunction and statutory damages. Id. at 7-8.

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II.

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

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United States District Court
Northern District of California

LEGAL STANDARD

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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” in support of early

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discovery. See, e.g., IO Grp., Inc. v. Does 1-65, 2010 WL 4055667, at *2 (N.D. Cal. Oct. 15,

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

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“Good cause may be found where the need for expedited discovery, in consideration of the

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administration of justice, outweighs the prejudice to the responding party.” Semitool, 208 F.R.D.

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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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(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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III.

DISCUSSION
Strike 3’s Litigation History

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A.

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As some courts in this District have done, before turning to the merits of the application,

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the Court believes that an overview of Strike 3’s litigation history would provide useful context

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for the Doe Defendant or any other party who may receive this Order. See, e.g., Strike 3 Holdings,

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LLC v. John Doe Subscriber Assigned IP Address 98.47.46.165, No. 24-CV-00989-EJD, 2024 WL
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United States District Court
Northern District of California

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1354465, at *2 (N.D. Cal. Mar. 29, 2024). Especially given the informational disparity and matrix

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of undesirable options facing an ISP subscriber served with such a complaint, this context will

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hopefully reduce the prejudice that individual may face.

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Strike 3 has filed thousands of similar lawsuits and requests to subpoena subscriber

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information from ISPs, such as Comcast Cable. See, e.g., Strike 3 Holdings, LLC v. Doe, No. 23-

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CV-04339-RS, 2023 WL 6542326, at *2 (N.D. Cal. Sept. 22, 2023) (collecting cases). At least

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one federal judge has also openly characterized Strike 3 as a “copyright troll” that uses its

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“swarms of lawyers [to] hound people who allegedly watch their content through BitTorrent.”

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Strike 3 Holdings, LLC v. Doe, 351 F. Supp. 3d 160, 161-62 (D.D.C. 2018) (describing the

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copyright troll’s strategy as “file a deluge of complaints; ask the court to compel disclosure of the

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account holders; settle as many claims as possible; abandon the rest”), rev’d and remanded, 964

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F.3d 1203 (D.C. Cir. 2020).

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In practice, once subscribers are alerted that they are being sued for uploading

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pornography, they may be pressured to quickly settle the matter to avoid the risk of having their

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names publicly associated with the lawsuit or the costs of hiring an expensive copyright legal

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specialist. See Strike 3 Holdings, LLC, 2023 WL 6542326, at *2; see also Strike 3 Holdings, 351

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F. Supp. 3d at 162 (“[O]nce the ISP outs the subscriber, permitting them to be served as the

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defendant, any future Google search of their name will turn-up associations with the websites

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Vixen, Blacked, Tushy, and Blacked Raw.”). As a result, many innocent ISP subscribers would

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be pressured to settle, even though several courts have observed that “ISP subscribers may not be

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the individuals who infringed upon Strike 3’s copyright.” Strike 3 Holdings, LLC v. Doe, No.

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3:23-CV-01977-LB, 2023 WL 4003723, at *3 (N.D. Cal. May 9, 2023) (collecting cases); see also

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Strike 3 Holdings, 351 F. Supp. 3d at 162 (“[I]nferring the person who pays the cable bill illegally

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downloaded a specific file is even less trustworthy than inferring they watched a specific TV

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show.”). Moreover, if a defendant moves to confront a “copyright troll” or exhibits any serious

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resistance, the company can simply drop the case and avoid any unfavorable judicial rulings. See

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Strike 3 Holdings, 351 F. Supp. 3d at 162 (“These serial litigants drop cases at the first sign of

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resistance, preying on low-hanging fruit and staying one step ahead of any coordinated defense.”).
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B.

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Turning to the merits of Strike 3’s ex parte application, the Court finds that Strike 3 has

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demonstrated good cause for this early discovery under the four seescandy.com factors. See id.,

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185 F.R.D. at 578-80.

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First, the Court finds that Strike 3 has identified the Doe Defendant with sufficient

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specificity for the Court to determine that the Doe Defendant is a real person who may be sued in

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federal court. The Complaint alleges that BitTorrent’s protocols require the activity of a human

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user to share movies within the BitTorrent network. Compl. ¶¶ 18-27. Strike 3 also used

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Maxmind geolocation technology to trace the IP address it procured through its VXN Scan

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United States District Court
Northern District of California

Good Cause

detection software to a geographic location within this district. Id. ¶ 9.
Second, Strike 3 has recounted the steps it took to locate and identify the Doe Defendant.

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In addition to the geolocation and infringement detection technology described immediately

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above, Strike 3 has attempted to associate the IP address with a defendant individual using various

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web search tools and consultations with computer investigators and cyber security consultants.

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Appl. 10.

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Third, Strike 3 has preliminarily demonstrated that its action can withstand a motion to

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dismiss. “Plaintiffs must satisfy two requirements to present a prima facie case of direct

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infringement: (1) they must show ownership of the allegedly infringed material and (2) they 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). A copyright holder’s rights under Section 106 include 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. 17 U.S.C. § 106. Here, Strike 3 alleges that it owns the copyrights to adult movies that the

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Doe Defendant downloaded, copied, and distributed without permission. Compl. ¶¶ 29, 44.

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Accepting these allegations as true, the Court finds that the Complaint may withstand a motion to

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dismiss.

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Finally, Strike 3 has shown that the discovery it seeks is reasonably likely to lead to
identifying information that will permit service of process on the Doe Defendant. Specifically,
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Strike 3 seeks the name and address of the Doe Defendant and has represented that the “only

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entity that can correlate the IP address to its subscriber and identify Defendant as the person

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assigned the IP address is Defendant’s ISP.” Appl. 6 (citing BMG Rts. Mgmt. (US) LLC v. Cox

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Commc’ns, Inc., 881 F.3d 293, 299 (4th Cir. 2018) (“[O]nly the ISP can match the IP address to

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the subscriber’s identity.”)).
In sum, the Court finds that Strike 3 has satisfied all four seescandy.com factors and

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United States District Court
Northern District of California

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presented good cause for its requested expedited discovery.

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C.

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Even though Strike 3 is entitled to a pre-discovery subpoena, the Court retains authority

Protective Order

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under Federal Rule of Civil Procedure 26(c) to grant a sua sponte protective order for good cause.

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See, e.g., McCoy v. Sw. Airlines Co., 211 F.R.D. 381, 385 (C.D. Cal. 2002); Fed. R. Civ. P. 26(c).

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In this case, the Court finds that there is good cause to implement limited protective measures to

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shield a potential innocent and unwitting ISP subscriber from undue prejudice. Strike 3 does not

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oppose establishing procedural safeguards to respect privacy interests. Appl. 12-13.

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Consistent with the protective measures undertaken by many other courts in this district,

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the Court will employ procedures to treat as confidential any personal information regarding the

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Doe Defendant that Comcast Cable produces to Strike 3. The Court will also permit and consider

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any request by the Doe Defendant to proceed anonymously under a pseudonym.

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IV.

CONCLUSION
Based on the foregoing, the Court GRANTS Strike 3’s Ex Parte Application with respect

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to Defendant Doe, Subscriber Assigned IP Address 73.70.71.230, as follows:
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Within 21 days of this Order, Strike 3 MAY serve a Rule 45 subpoena on Comcast Cable

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(“ISP”), commanding the ISP to provide Strike 3 with the true name and address of the

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Defendant to whom the ISP assigned an IP address as set forth on Exhibit A to the

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Complaint. Strike 3 SHALL attach a copy of this Order to any such subpoena.

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Strike 3 MAY serve a Rule 45 subpoena in the same manner as above on any service

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provider that is identified in response to a subpoena as a provider of Internet services to

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the Defendant.
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with 47 U.S.C. § 551(c)(2)(B) by sending a copy of this Order to Defendant.

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Within thirty (30) days of being served by Strike 3, the ISP SHALL serve the Doe

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Defendant subscriber assigned the IP address 73.70.71.230 with a copy of the subpoena

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and this Order.
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United States District Court
Northern District of California

If the ISP qualifies as a “cable operator” per 47 U.S.C. § 522(5), then it shall comply

Within thirty (30) days after he or she has been served with the subpoena and this Order,

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the Doe Defendant MAY file a motion to contest the subpoena, including a motion to

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quash or modify the subpoena. The Doe Defendant MAY appear and proceed before this

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Court under a pseudonym by requesting that their personal identifying information be filed

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under seal.

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If the Doe Defendant does not contest the subpoena within thirty days, the ISP may
produce the information responsive to Strike 3's subpoena within ten (10) days.

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Strike 3 MAY only use the information disclosed in response to its subpoena for the

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purpose of protecting and enforcing its rights as set forth in the Complaint. Strike 3 MAY

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NOT publicly disclose the information obtained from its subpoena without leave of this

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Court. All references to the Doe Defendant's identity SHALL be redacted and filed under

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seal until further notice.
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Comcast Cable or any other ISP that receives a subpoena pursuant to this Order SHALL

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confer with Strike 3 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

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charge for the costs of production must provide a billing summary and cost reports that

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serve as a basis for the billing summary and costs claimed by the ISP.

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Comcast Cable or any other ISP that receives a subpoena pursuant to this Order SHALL

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preserve any subpoenaed information pending the resolution of any timely filed motion to

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dismiss.

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IT IS SO ORDERED.

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Dated: September 24, 2024

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ARACELI MARTÍNEZ-OLGUÍN
United States District Judge

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United States District Court
Northern District of California

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