STRIKE 3 HOLDINGS, LLC v. JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 173.71.68.16

Filing 30

OPINION. Signed by Magistrate Judge Joel Schneider on 10/24/2019. (rss, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
STRIKE 3 HOLDINGS, LLC,
Plaintiff,
Civil No. 18-2674 (JHR/JS)

v.
JOHN DOE SUBSCRIBER ASSIGNED IP
ADDRESS 173.71.68.16,
Defendant.
STRIKE 3 HOLDINGS, LLC,
Plaintiff,

Civil No. 18-12585 (NLH/JS)

v.
JOHN DOE SUBSCRIBER ASSIGNED IP
ADDRESS 76.116.36.190,
Defendant.
STRIKE 3 HOLDINGS, LLC,
Plaintiff,

Civil No. 18-12586 (JHR/JS)

v.
JOHN DOE SUBSCRIBER ASSIGNED IP
ADDRESS 76.116.76.28,
Defendant.

STRIKE 3 HOLDINGS, LLC,
Plaintiff,
Civil No. 18-14114 (JHR/JS)

v.
JOHN DOE SUBSCRIBER ASSIGNED IP
ADDRESS 73.160.162.60,
Defendant.
OPINION

This Opinion addresses whether to grant Strike 3 Holdings,
LLC (“Strike 3”) leave to conduct expedited discovery in its
uniform “John Doe” copyright infringement cases. Strike 3 owns the
copyrights to its adult entertainment movies, i.e., pornography.
In contravention of the normal course of discovery, Strike 3 seeks
leave to serve subpoenas before a Fed.R.Civ.P.26(f) conference in
order to identify alleged “John Doe” copyright infringers of its
movies.

Strike 3 argues that unless its motions are granted it

is not able to identify infringers and stop infringement.

This

Opinion adds to the mountain of case law on the issue.
After a deep dive into Strike 3’s practices, including two
evidentiary hearings and extensive briefing, the Court concludes
that Strike 3’s requests for expedited discovery are DENIED.

The

Court finds that Strike 3 has not established good cause to take
the requested discovery and the discovery is unreasonable under
the present circumstances. 1

1

Throughout this Opinion the Court will refer to an exemplar complaint or

2

The most fundamental basis of the Court’s decision is its
conclusion that, as pleaded, Strike 3’s complaints are futile.
The Court denies Strike 3 the right to bootstrap discovery based
on

a

complaint

that

Fed.R.Civ.P.12(b)(6).

does

Further,

not
even

pass
if

muster

Strike

3

under

pleads

a

cognizable copyright infringement claim, the Court would still
deny its requests for expedited discovery.

Good cause does not

exist because: (1) Strike 3 bases its complaints on unequivocal
affirmative representations of alleged facts that it does not know
to be true; (2) Strike 3’s subpoenas are misleading and create too
great of an opportunity for misidentification; (3) the linchpin of
Strike 3’s good cause argument, that expedited discovery is the
only way to stop infringement of its works, is wrong; (4) Strike
3 has other available means to stop infringement besides suing
individual subscribers in thousands of John Doe complaints; (5)
the deterrent effect of Strike 3’s lawsuits is questionable; (6)
substantial

prejudice

may

inure

to

subscribers

who

are

misidentified; and (7) Strike 3 underestimates the substantial
interest

subscribers

have

in

the

constitutionally

privacy of their subscription information.

protected

On balance, therefore,

case. This refers to C.A. No. 18-14114(JHR/JS) which is representative of
all of Strike 3’s complaints. Strike 3 acknowledges its complaints are
uniform. TR1 12:15-19. The Court held two evidentiary hearings regarding
Strike 3’s discovery requests. The transcript from the first hearing will be
referred to as “TR1” and the second “TR2.” Emilie Kennedy, Esquire, Strike
3’s General Counsel, John Bunting, forensics consultant, and John S.
Pasquale, Sr. Project Manager with 7 Riber Systems, LLC, a cyber security
firm, testified for Strike 3.

3

the Court finds that the overall administration of justice and the
prejudice to subscriber defendants outweighs Strike 3’s interest
in expedited discovery.
It is not lost on the Court that its ruling may make it more
difficult for Strike 3 to enforce its copyrights against potential
infringers.
“[c]ourts

However,

must

inequitable.”

as

enforce

the

the

Third

law

Circuit

even

when

recently
the

stated,

results

seem

Diabate v. Attorney General of U.S.A., No. 18-3397,

2019 WL 5061399, at *1 (3d Cir. Oct. 9, 2019).

The Court is aware

that it has granted expedited discovery in past cases filed by
Strike 3 and other copyright frequent filers. 2

However, as was

famously said, the Court “see[s] no reason why it should be
consciously

wrong

today

because

[it]

was

yesterday.”

Massachusetts v. United States, 333 U.S. 611, 639-40

(1948) (J. Jackson, dissenting opinion).

unconsciously

wrong

Since its previous

Orders were entered, new relevant case law has been published and
the

Court

has

learned

new

material

information

that

was

not

previously presented, all of which is discussed in this Opinion. 3
Background

2

See, e.g., Strike 3 Holdings, LLC. V. John Doe…, C.A. No. 17-12784 (JHR/JS),
2018 WL 2010422 (D.N.J. April 24, 2018); Voltage Pictures v. John Does 1-60,
C.A. No. 12-6885 (RMB/JS), 2013 WL 12406868 (May 31, 2013; see also Plastic
the Movie Limited v. John Doe Subscriber, C.A. No. 15-2446 (JHR/JS), 2015 WL
4715528 (D.N.J. August 7, 2015) (denying motion to quash subpoena directed to
Comcast requesting the identity of owner of listed IP address).
3 The Court has the power to revisit its prior interlocutory decisions and to
undermine an earlier conclusion. PIRG v. Magnesium Elektron, Inc., 123 F.3d
111, 116-17 (3d Cir. 1997).

4

1. General Background
Strike 3 was formed in 2015 and is the intellectual property
holding company of General Media Systems (“GMS”).

GMS was founded

in 2014 and produces and distributes adult entertainment on its
websites.

According to GMS’s Chief Creative Officer, it is the

most pirated adult content in the world.
¶25,

Doc.

No.

4-2.

Strike

3

started

Decl. of Greg Lansky
filing

its

copyright

complaints in October 2017 (id. 10-11) and has filed over 3,000
complaints to date.
New Jersey.

As of June 2019, Strike 3 filed 311 cases in

More than half of the cases (161) have been dismissed

without prejudice for various reasons.
(“LB”) at 2-5 (June 11, 2019).

Strike 3 Letter Brief

Like many of its colleagues in

this and other jurisdictions, the Court has managed many of Strike
3’s cases.

Strike 3’s modus operandi is essentially the same in

all of its cases.

Strike 3 files “John Doe” complaints naming

unidentified assigned subscribers to an Internet Protocol (“IP”)
address who have been identified by its contractor as an infringer
on the BitTorrent (“BT”) network.

BT is a software protocol that

allows users to distribute data through peer-to-peer networks.
The BT network permits users to download, copy and distribute
Strike 3’s movies.
complaints

between

The only pleaded connection in Strike 3’s
the

“John

Doe”

defendant

and

the

alleged

infringement is that the “John Doe” is the subscriber to the listed
IP address.

Strike 3 acknowledges it does not know if the

5

subscriber or someone else downloaded its works.
After filing its complaint, Strike 3 files ex parte motions
for expedited discovery requesting leave to serve a subpoena on
the John Doe’s Internet Service Provider (“ISP”), i.e., Comcast,
Yahoo, Verizon, etc. Although multiple infringements are listed in
its complaints, Strike 3’s subpoenas only ask for the name of the
IP subscriber for one infringement.

Thus, as to the exemplar

complaint, even though the alleged infringement occurred on 31
occasions from December 3, 2017 to August 16, 2018, Strike 3’s
subpoena only asks for the subscriber’s name on July 27, 2018.
Due to dynamic IP addresses, however, the subscriber identified in
response to Strike 3’s November 13, 2018 subpoena, may or may not
be the same person who subscribed to the IP address on July 27,
2018.

After Strike 3’s motion for expedited discovery is granted

and its subpoena is served and responded to, the ISP identifies
the current subscriber to the listed IP address.

Importantly,

this is not necessarily the same person who subscribed to the IP
address on July 27, 2018.

Strike 3 then conducts an additional

investigation

settles,

and

either

dismisses,

or

complaint to specifically name the IP subscriber.

amends

its

In the past,

the Court has granted Strike 3’s motions requesting expedited
discovery.

Recently, however, numerous courts have delved deeper

into Strike 3’s complaints, discovery requests, and practices,
leading the Court to reexamine the propriety of granting Strike

6

3’s motions.

The effort has been long and arduous but enlightening

and worthwhile.
The genesis of this Opinion is the November 6, 2018 Opinion
of the Honorable Royce L. Lamberth, U.S.D.J.

Strike 3 Holdings,

LLC v. John Doe, 351 F. Supp.3d 160 (D.D.C. 2018), on appeal, No.
18-7188 (Dec. 19, 2018).

In a blistering Opinion, Judge Lamberth

denied Strike 3’s ex parte request for expedited discovery akin to
the motions at issue herein.

Judge Lamberth accused Strike 3 of

being a “copyright troll,” of using technology that is “famously
flawed,” of preying on “low-hanging fruit,” of not caring whether
the “defendant actually did the infringing,” and flooding the
courthouse “with lawsuits smacking of extortion.”

The Opinion

raised red flags regarding Strike 3’s lawsuits that caused this
Court to explore the issue further.
In Order to get to the bottom of the matter, the Court issued
an Order to Show Cause (“OSC”) to Strike 3 directing it to show
cause why the Court should not adopt and follow Judge Lamberth’s
Opinion and Order and deny Strike 3’s discovery motions. 4 Since
that time, the Court has received extensive briefs and background
materials and held two evidentiary hearings. 5

4

The Court will

At the time the OSC was issued six (6) Strike 3 cases were pending before
the Court. Since that time, Strike 3 voluntarily dismissed two (2) of the
cases. The remaining four (4) cases are stayed pending the issuance of this
Opinion. Throughout the relevant hearings, the Court has used C.A. No. 1814114 (JHR/JS) as an exemplar. The case will be discussed throughout this
Opinion.
5 Strike 3’s main spokesperson was Emille Kennedy, Esquire, its General
Counsel. Kennedy is responsible for coordinating Strike 3’s nationwide

7

summarize what it has learned and explain in detail why Strike 3’s
requests for expedited discovery are denied.
2. Strike 3’s Investigation and John Doe Complaints
Strike

3’s

infringement

investigation

International UG (“IPP”) located in Germany.

starts

with

IPP

Strike 3 hired IPP

to track the infringement of its copyrights across the BT network.
TR1 15:5-19. IPP does this by crawling the BT file distribution
network and establishing a direct connection with the alleged
infringer’s IP address.
An IP address is a unique number used by a computer to access
the internet.

In order to interact with other computers attached

to the internet, a computer must be assigned an internet protocol
or IP address. An IP address is a string of up to twelve numbers
separated by dots – for example 73.160.162.60. State v. Reid, 194
N.J. 386, 390 (2008).

“IP addresses can be dynamic (the number

changes each time the computer accesses the Internet) or static
(the number remains the same each time the computer accesses the
Internet).”.

United States v. Norris, 938 F.3d 1114, 1116 n. 2

(9th Cir. 2019).

After IPP identifies an IP address that is used

by an infringer to distribute Strike 3’s copyrighted works, it
downloads pieces of Strike 3’s works from the alleged infringer.

litigation and has hands-on familiarity with its policies and practices.
Kennedy has the most broad-based knowledge concerning Strike 3’s litigation
and is authorized to speak on behalf of the company. TR2 2:11-19. Kennedy
approves every filed complaint. TR1 13:16-22.

8

IPP records the infringer’s IP address, the version of the BT
software used, and the date and time of the infringement.

In

addition to identifying Strike 3’s works that are downloaded, IPP
identifies

the

ISP

and

other

content

subscriber’s IP address. TR1 12:1-10.

downloaded

using

the

IPP records everything in

a PCAP, which stands for “packet capture” and is a forensically
sound interface for recording network traffic. TR1 17:1-22. Decl.
of Tobias Fisher at ¶8, Doc. No. 4-3. IPP sends this data to Strike
3 on a monthly basis.

TR1 15:24 to 16:25.

According to Strike 3, it only trys to “stop the worst
infringers.” 6

TR1 18:4-11.

This accounts for why Strike 3 may be

aware that a particular IP address is being used to infringe its
works for a significant period of time before a complaint is filed.
For example, although the exemplar complaint was filed on September
20, 2018, the subscriber’s infringement allegedly occurred on 31
separate occasions from December 3, 2017 to August 16, 2018.

Thus,

Strike 3 was aware of the ongoing infringement of its movies for
at least nine (9) months before it filed its complaint.
After

Strike

3’s

data

analytics

contractor

identifies

a

serial infringer, Strike 3 runs the IP address through Maxmind, a
geolocation technology.

Maxmind gives Strike 3 an approximate

location of where the IP address is located. 7 Id. 49:6-1; 75:11-

6

Generally, Strike 3 looks for IP addresses that infringe a minimum of 25
works over a couple of months. TR1 19:10-14.
7 Strike 3’s consultant used the phrase “general region.”
TR1 151:20.

9

20.

Strike 3 uses the Maxmind result to identify the appropriate

jurisdiction in which to file suit. In sum, therefore, the only
information Strike 3 has when it files its John Doe complaints is
the infringing IP address, the identity of the ISP, the date and
time

of

the

infringer,

the

infringement,
number

of

the
works

approximate
infringed,

location
and

other

of

the

content

downloaded.
Although Strike 3’s John Doe complaints name as the defendant
the unidentified IP subscriber, Strike 3 acknowledges it does not
know who infringed its works.

Strike 3 also acknowledges it only

has a “fairly good reason to believe that it is the subscriber or
someone in the [household].”

TR1 20:21-22.

Strike 3 does not

know who or how many people live in the household (TR1 22:7-22)
and it “[h]as no idea if there’s anyone else in the house.”
92:13-19.

In addition, Strike 3 is not sure whether the subscriber

lives at the location associated with the IP address.
4.

TR2

TR2 29:3-

Also, because of dynamic IP addresses, Strike 3 does not know

for sure if the subscriber identified in response to its subpoena
is the same subscriber at the time of the alleged infringement
which occurred months earlier.
Despite its admitted lack of knowledge of who downloaded its
works, whether the subscriber lives at the identified address, and
who lives at the address, Strike 3’s complaints unequivocally aver
in conclusory fashion that the listed subscriber to the identified

10

IP address directly infringed its copyrights.

This is evidenced

by the following averments in the exemplar complaint which named
the

defendant

as

“John

Doe

subscriber

assigned

IP

Address

73.160.162.60”:
1. “Defendant used the BitTorrent file
illegally
download
and
distribute
copyrighted motion pictures.” ¶ 23.

network to
plaintiff’s

2. “While Defendant was infringing, . . . .” ¶ 25.
3. “Defendant downloaded, copied, and distributed a
complete copy of each of plaintiff’s works without
authorization.” ¶ 27.
4. “Defendant’s infringement is continuous and ongoing.”
¶ 30.
5. “Defendant copied and distributed the constituent
elements of plaintiff’s works using the BitTorrent
protocol.” ¶ 36.
Strike

3

makes

these

unequivocal

averments

even

though

it

recognizes the subscriber may not have downloaded its works.

TR1

20:23-25

its

to

21:1;

21:8-16,

21-22.

After

Strike

3

files

complaint, it files a motion for expedited discovery asking for
leave to serve a subpoena on the identified ISP.

Strike 3 argues

this is necessary since only the ISP can match the name of the
customer to an IP address. After Strike 3 receives the name of the
currently listed subscriber to the IP address in question, it
conducts an additional investigation and decides whether to amend
the complaint to name the subscriber or dismiss the complaint. 8

8

Strike 3 estimates that 35 to 40 percent of the time it decides to dismiss
and not amend its complaints. TR1 59:2-8.

11

In the interim, Strike 3 may also settle with the subscriber or
someone else.
Discussion
1. The Standard to Obtain Expedited Discovery
Critical to the Court’s ruling is the standard to use when
deciding if expedited discovery is appropriate.

Importantly, the

fact that the requested discovery is relevant is not determinative.
Instead, in order to decide if good cause exists to grant expedited
discovery the Court examines all relevant considerations.

Stated

another way, the “totality of the circumstances.”
Pursuant to Fed. R. CIV. P. 26(b)(1), “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense.” However, “[a] party may not seek
discovery from any source before the parties have conferred as
required by Rule 26(f).” Fed. R. CIV. P. 26(d)(1). District courts
possess broad discretion in the management of the discovery process
and can expedite or otherwise alter its timing or sequence. See
id. Unlike most other discovery provisions in the Federal Rules,
Rule 26(d) does not give any guidance as to the standard to use to
determine

if

expedited

discovery

is

appropriate.

Techtronic

Indus. N. Am., Inc. v. Inventek Colloidal Cleaners LLC, C.A. No.
13-4255 (NLH/JS), 2013 WL 4080648, at *1 (D.N.J. Aug. 13, 2013). 9

9

Consequently, one author estimates “that courts have developed more than
twenty standards for construing Rule 26(d)(1).” See Jesse N. Panoff, Rescuing
Expedited Discovery from Courts & Returning It to FRCP 26(d)(1), 64 Ark. L.

12

Courts in this District have applied one of two standards to
assess whether expedited discovery is appropriate. See Sawhorse
Enterprises, Inc. v. Church & Dwight Co., C.A. No. 12-6811 (FLW),
2013 WL 1343608, at *2 (D.N.J. Apr. 3, 2013). The first is a more
stringent standard, “akin to that of a preliminary injunction,”
known as the Notaro test. 10

Id.; see also Gucci America Inc. v.

Daffy’s, Inc., C.A. No. 00-4463, 2000 WL 1720738, *5-6 (D.N.J.
Nov. 14, 2000) (citing Notaro, 95 F.R.D. at 405). The second is
the less stringent standard of “good cause” or “reasonableness,”
often referred to as the “good cause” test. See, e.g., Manny Film
LLC v. Doe Subscriber Assigned IP Address 50.166.88.98, 98 F. Supp.
3d 693 (D.N.J. 2015); Techtronic, 2013 WL 4080648, at *1. Courts
in this District routinely apply the “good cause” test. See Strike
3 Holdings, LLC v. Doe, C.A. No. 19–16182(MCA)(MAH), 2019 WL
3985628, at *2 (D.N.J. Aug. 23, 2019).
Court

adopted

standard.

the

so-called

Techtronic, at *1.

In a previous case, this

“reasonableness”

or

“good

cause”

In other words, in order to decide

if expedited discovery is appropriate, the Court looks at the
totality of the circumstances and the balancing of the interests
of the plaintiff and defendant.

Better Packages, Inc. v. Zheng,

Rev. 651, 651 (2011)).
10 The Notaro test requires the requesting party to demonstrate: “(1)
irreparable injury, (2) some probability of success on the merits, (3) some
connection between the expedited discovery and the avoidance of the
irreparable injury, and (4) some evidence that the injury that will result
without expedited discovery looms greater than the injury that the defendant
will suffer if the expedited relief is granted.” Notaro v. Koch, 95 F.R.D.
403, 405 (S.D.N.Y. 1982).

13

C.A. No. 05-4477(SRO), 2006 WL 1373055, at *3 (D.N.J. May 17, 2006)
(the good cause test “weighs the need for expedited discovery by
considering the overall administration of justice against the
prejudice to the responding party.”).

The Court will apply this

standard here.
Not surprisingly, the burden is on the moving party to show
that expedited discovery is appropriate.
cause

exists

where

the

“need

for

Techtronic, at *2.
expedited

Good

discovery,

in

consideration of the administration of justice, outweighs the
prejudice to the responding party.” Malibu Media, LLC v. John Doe,
C.A. No. 16-942 (KM/MAH), 2016 WL 952340, *1 (D.N.J. Mar. 14, 2016)
(citation

omitted).

A

non-exclusive

list

of

factors

Courts

typically examine are: (1) the timing of the request in light of
the formal start to discovery; (2) whether the request is narrowly
tailored; (3) the purpose of the requested discovery; (4) whether
the discovery burdens the defendant; and (5) whether the defendant
can respond to the request in an expedited manner. See Better
Packages, 2006 WL 1373055, at *3. In ruling on a motion for
expedited discovery, courts consider “the entirety of the record
. . . and the reasonableness of the request in light of all of the
surrounding circumstances[.]”. 11

11

Better Packages, Inc., 2006 WL

See Gucci, 2000 WL 1720738, *6 (applying the Notaro factors upon finding
“the allegations of the complaint were without basis” and calling into
question plaintiff’s “real motive” in the lawsuit”).

14

1373055, at 3 (citation and quotation omitted).
For

good

reason,

Courts

apply

“careful

scrutiny

when

plaintiffs make [discovery] requests ex parte.” Strike 3 Holdings,
LLC v. Doe, 331 F.R.D. 14, 16 (E.D.N.Y. 2019) (citation and
quotation

omitted).

This

is

understandable

since

discovery is the exception rather than the norm.

expedited

Techtronic, at

*2; Columbine Ins. Co. v. Seecandy.com, 185 F.R.D. 573, 577 (N.D.
Cal. 19999) (expedited discovery is “rare”). Further, this Court
noted

in

Techtronic:

“[s]ince

expedited

discovery

upsets

the

normal orderly progression of discovery, there should be a good
reason to order it to occur.

Otherwise, parties will expect

expedited discovery in every case.”; see also Leone v. Towanda
Borough, C.A. No. 3:12–0429, 2012 WL 1123958, at *3 (M.D.Pa. Apr.
4, 2012) (“[E]x parte motions are so inherently unfair that such
relief should be granted only in the rarest of circumstances.”).
In addition, if not policed properly, ex parte expedited discovery
may

create

an

irresistible

temptation

for

trickery

and

gamesmanship.
Plaintiff asks the Court to analyze its request for expedited
discovery using the Second Circuit’s five-factor test found in
Arista Records, LLC v. Doe 3, 604 F.3d 110, 119 (2nd. Cir. 2010). 12

12

The five “principal factors” discussed in Arista are: (1) the concreteness
of plaintiff’s showing of a prima facie claim of actionable harm; (2) the
specificity of the discovery request; (3) the absence of alternative means to
obtain the subpoenaed information; (4) the need for the subpoenaed
information to advance the claim; and (5) the objecting party’s expectation

15

Id. at 3. The Court declines Strike 3’s request to pigeonhole the
Court’s discretion. The Arista standard has not been adopted by
the Court and is not typically used in this District. Further, as
has been noted by at least one court, the utility of the Arista
standard is limited. Strike 3 Holdings, LLC, 331 F.R.D. at 17.

In

any event, the Court’s ruling would be the same even if the Court
followed Arista.
For the reasons to be explained in detail, the Court finds
that Strike 3 fails to establish good cause for expedited discovery
under the “good cause” or Arista standard.

The Court’s prior

Orders were founded upon material misconceptions concerning Strike
3’s allegations and the underlying technological proof submitted
in support of Strike 3’s motions. Further, new relevant information
has been elicited that the Court was not aware of at the time it
issued its previous Orders.
has been published.

In addition, new persuasive case law

Ultimately, the Court agrees with Judge

Lamberth that Strike 3’s expedited discovery requests should be
denied, but its reasoning is a bit different.
2.

Underlying Assumptions

The Court deems it important to clarify several assumptions
that underlie its decision so there is no misunderstanding about
its reasoning.
adult

First, the fact that Strike 3 is involved in the

entertainment

business

is

of privacy. See Arista, 604 F.3d at 119.

16

irrelevant

to

the

Court’s

decision.

Unless Congress or the courts carve out an exception

for pornography, which has not been done to date, Strike 3’s lawful
copyrights deserve as much or as little protection as the law
provides.

See Strike 3 Holdings, LLC v. Doe, No. 18-Cv-2648 (VEC),

2019 WL 78987, at *4 (S.D.N.Y. Jan. 2, 2019) (stating that Strike
3’s

“interest

in

protecting

its

copyrighted

material

from

infringement . . . is not lessened by the salacious content of the
material.”).

Two, no one can reasonably dispute that an entity

whose copyrights are infringed should have recourse against the
infringer.

Nonetheless, as discussed herein, a legal remedy does

not exist for every wrong.

Strike 3 is not entitled to relief

simply because it was wronged. Three, the Court acknowledges that
the information Strike 3 requests is relevant under Fed. R. CIV.
P. 26(b)(1).

Even if an IP subscriber is not the infringer, he/she

is likely to know relevant information regarding who used their
internet access.

Nonetheless, relevancy is not the touchstone to

grant expedited discovery.

If it was, expedited discovery could

become the rule rather than the exception.

Four, even though

numerous cases discuss the fact that Strike 3 has or may engage in
abusive litigation practices, the Court has not seen evidence that
this occurred in its cases. 13

13

To be clear, the Court cannot vouch that this has not occurred.
can only say it has no knowledge this occurred.

17

The Court

3. Good Cause Does Not Exist for Expedited Discovery Because
Strike 3 Does Not Plead a Cognizable Claim, i.e., its
Complaints are Futile
The most fundamental reason the Court denies Strike 3’s
request for expedited discovery, and why the Court concludes its
discovery requests are not reasonable, is that Strike 3 does not
plead a cognizable claim in its complaints.

It would be anomalous

to authorize discovery based on a John Doe complaint that does not
pass muster under Fed. R. CIV. P. 12(b)(6), in order to permit
Strike

3

to

name

an

individual

meritorious motion to dismiss.

subscriber

who

then

files

a

Especially in the John Doe context

where a complaint must be carefully scrutinized and a viable
defendant

is

not

present

to

challenge

the

complaint,

it

is

unreasonable to authorize Strike 3 to bootstrap discovery onto a
futile complaint. This is not consistent with the guidepost that
the Federal Rules “should be construed, administered, and employed
by the court and the parties to secure the just, speedy, and
inexpensive determination of every action and proceeding.”

Fed.

R. CIV. P. 1.
The Court understands that in the present context it is not
deciding a motion to dismiss.

However, if the Court did not

examine the futility of a John Doe complaint it would create too
great of an opportunity for trickery and gamesmanship. 14 Further,
in the context of deciding whether expedited discovery should be
14

To be sure, the Court is not saying this occurred here.

18

granted, futility is a relevant consideration in a totality of the
circumstance analysis.

The Court’s sentiment is supported by

other opinions. Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th
Cir. 1999) (discovery to identify a defendant is not appropriate
when

“the

complaint

would

be

dismissed

on

other

grounds.”);

Breaking Glass Pictures, LLC v. John and Jane Does 118-162, et
al., No. CV-13-00600-PHX-ROS; 2013 WL 3930474, at *2 (D. Ariz.
July 29, 2013) (“Early discovery is not appropriate when the
complaint

would

be

dismissed

on

other

grounds.”);

Criminal

Productions, Inc. v. Doe, Case No. 16-cv-2352 WQH (JLB), 2016 WL
6581850, at *1 (S.D. Cal. Nov. 7, 2016) (citation and quotation
omitted)
expedited

(in

order

to

discovery,

decide

the

if

good

plaintiff

cause

“should

exists
establish

to

grant

to

the

Court’s satisfaction that plaintiff’s suit against defendant could
withstand a motion to dismiss.”).
Turning to the viability of Strike 3’s form complaints, the
Court finds that, as pleaded, Strike 3’s complaints are futile.
In order to make out a prima facie claim of copyright infringement
two elements must be met: (1) ownership of a valid copyright, and
(2) copying of constituent elements of the work that are the
original.

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499

U.S. 340, 361 (1991).
first element.

The Court does not take issue with the

However, Strike 3’s complaints do not satisfy the

second element.

19

Scores of cases address whether Strike 3’s form complaints
pass

muster.

Admittedly

the

case

law

is

split.

The

Court

recognizes that whether by virtue of inertia or some other reason,
the majority view is that at least at the pleading stage of a case,
Strike 3’s complaints withstand dismissal. 15

However, although

Strike 3 can cite to a legion of cases upholding its John Doe
complaints, a substantial number of cases take a contrary view.
The Court sides with the cases that hold it is not sufficient to
merely allege in a pleading that the defendant is a subscriber of
an IP address traced to infringing activity.

Consequently, the

Court will not authorize Strike 3 to take discovery premised on a
futile John Doe complaint.
In order to survive a motion to dismiss, a complaint must
contain sufficient factual matter accepted as true to state a claim
to relief that is plausible on its face.
Twombly, 550 U.S. 544, 570 (2007).

Bell Atl. Corp. v.

Importantly, a plaintiff’s

obligation to provide the grounds of his/her entitlement to relief
requires

more

than

labels

and

conclusions

and

recitation of the elements of a cause of action.

a

formulaic

Id. at 555.

While the plausibility standard is not a probability requirement,
“a complaint must show more than a sheer possibility that the

15

Recent representative cases taking a position contrary to that of this
Court are Strike 3 Holdings, LLC v. John Doe, 1:18-cv-01490 EAW, 2019 WL
1529339 (W.D.N.Y. Apr. 8, 2019) and Strike 3 Holdings, LLC v. John Doe, No.
19-cv-00723-JCS, 2019 WL 2996428 (N.D.Cal. July 9, 2019).

20

defendant acted unlawfully.”

Id. at 678.

Facts merely consistent

with a defendant’s liability fall short of a plausible entitlement
to relief.

Id. at 557.

Strike 3’s complaints are devoid of facts sufficient to show
it is entitled to relief from the named John Doe/IP subscriber.
The only material fact pleaded in Strike 3’s complaints is that
the listed IP address is associated with the downloading of Strike
3’s works and the John Doe is the subscriber of the address.

All

other material averments in Strike 3’s complaints, e.g., that the
John Doe subscriber downloaded Strike 3’s works, are conclusory
statements, not facts.

If Strike 3’s complaints are stripped of

their conclusory statements, they are left with the notion that
merely subscribing to an IP address that downloaded copyrighted
works is sufficient to make out a cause of action for copyright
infringement.

This is not sufficient.

As stated in Twombly,

“where the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has
alleged – but it has not shown - that the pleader is entitled to
relief.”

Twombly, 550 U.S. at 678.

Despite its lack of knowledge of who downloaded its works,
Strike 3 argues its complaints pass muster because it is plausible
the

IP

subscriber

discussed,

the

was

Court

the

infringer.

disagrees.

No

For
Third

the

reasons

Circuit

just

decision

addresses the pleading issue presented by Strike 3’s complaints.

21

Importantly, however, the only Circuit Court decision on point
supports

the

Court’s

holding.

See

Cobbler

Gonzales, 901 F.3d 1142, 1145 (9th Cir. 2018).

Nevada,

LLC

v.

In Cobbler, the

Ninth Circuit decided “whether a bare allegation that a defendant
is the registered subscriber of an [IP] address associated with
infringing activity is sufficient to state a claim for direct
contributory infringement.”

Id. at 1144.

Like this case, the

only allegation connecting Gonzales to infringing activity was
that Gonzales was the registered owner of the IP address associated
with the alleged infringement.

In affirming the District Court’s

dismissal of the plaintiff’s complaint, the Court wrote:
The direct infringement claim fails because Gonzales’
status as the registered subscriber of an infringing IP
address, standing alone does not create a reasonable
inference that he is also the infringer. Because
multiple devices and individuals may be able to connect
via an IP address, simply identifying the IP subscriber
solves only part of the puzzle. Plaintiff must allege
something more to create a reasonable inference that a
subscriber is also an infringer.
Id. at 1145.
The

complaint

complaints

in

that

in

Cobbler

the

only

is

similar

connection

to

Strike

between

the

3’s

form

John

Doe

defendant and the alleged infringement is that the defendant is
the registered internet subscriber.
a valid claim.

This is not enough to plead

As noted in Cobbler:

This is a situation where a complaint pleads facts that
are merely consistent with defendant’s liability . . .
stopping short of the line between
possibility and

22

plausibility of entitlement to relief . . . . The
allegations are not enough to raise a right to relief
above a speculative level.
Cobbler, 901 F.3d at 1147 (citations and quotations omitted).
Cobbler is not an outlier and its holding has been followed in
numerous cases.

Venice PI, LLC v. Huseby, No. C17-1160 TSZ, 2019

WL 1572894, at *1 (W.D. Wash. Apr. 11, 2019) (“[T]he Ninth Circuit
made clear [in Cobbler] that a copyright infringement claim based
merely on a defendant’s status as the subscriber of an IP address
associated with infringing activity does not cross the threshold
of ‘plausibility’ that pleadings in federal court must satisfy.”);
Malibu Media, LLC v. John Doe Subscriber, No. 18C450, 2018 WL
6446404, at *3 (N.D.Ill. Dec. 10, 2018) (“This Court agrees with
the Ninth Circuit and those courts that have found that a plaintiff
must allege more than simply the registration of an IP address to
an individual in order to proceed against that individual for
copyright infringement.”); Breaking Glass Pictures, LLC, 2013 WL
3930474, at *2 (affirming decision denying expedited discovery and
stating, “the complaint contains no factual allegations setting
forth that the subscribers were, in fact, the individuals using
the

internet

connection

at

the

relevant

time.”

Also

finding

plaintiff has not stated plausible claims against the subscribers
because

although

subscriber’s

the

liability

complaint
for

was

copyright

consistent

with

infringement,

the
the

“allegations are also consistent with the subscribers not being

23

liable.”); Strike 3 Holdings, LLC v. Doe, 351 F. Supp. 3d 160, 164
(D.D.C. 2018) (“Strike 3 could not withstand a 12(b)(6) motion in
this

case

without

machinations

resorting

sufficiently

to

far

more

establishing

intensive
defendant

discovery
did

the

infringing[.]”); PTG Nevada, LLC v. Chan, No. 16C1621, 2017 WL
168188, at *2 (N.D.Ill. Jan. 17, 2017)(collecting cases)(“This
Court agrees with those courts that have found that the plaintiff
needs to allege more than just the registration of an IP address
to an individual in order to proceed against that individual for
copyright infringement.”); In re BitTorrent Adult Film Copyright
Infringement Cases, 296 F.R.D. 80, 84 (E.D.N.Y. 2012)(“[I]t is no
more likely that the subscriber to an IP address carried out . .
. the purported illegal downloading . . . than to say an individual
who pays the telephone bill made a specific telephone call.”);
Malibu Media, LLC v. Doe, No. 15 CIV. 4369(AKH), 2015 WL 4092417
(S.D.N.Y. July 6, 2015) (denying motion for expedited discovery
where the plaintiff merely pleaded an IP address was associated
with downloading).
The Court is aware of authority that limits Cobbler to the
motion to dismiss context.

In other words, some decisions hold

that Cobbler only applies after the plaintiff has an opportunity
to obtain discovery to identify a subscriber.

For example, in

Strike 3 Holdings, LLC v. John Doe, No. 19-CV-00723-JCS, 2019 WL
2996428 (N.D.Cal. July 9, 2019), the Court ruled that Cobbler,

24

“does not stand for the proposition that subpoenas may not be used
to determine a subscriber’s name.”

Id. at 3.

However, the Court

respectfully disagrees that Cobbler should be given a narrow
reading.

First, the Ninth Circuit in Cobbler did not specifically

address a discovery issue so the Court will not read into the
decision a ruling that was not decided. See Wright v. Spaulding,
No. 17-4257, 2019 WL 4493487, at *5 (6th Cir. Sept. 19, 2019) (“For
a court’s conclusion about an issue to be part of its holding . .
. the court must have actively applied the conclusion to the case
in front of it. . . . [and] it must be clear that the court
considered the issue and consciously reached a conclusion about
it.”) (citation omitted).

Second, for the reasons already stated,

it would be anomalous to permit a plaintiff in a John Doe case to
obtain discovery based on a futile boilerplate complaint.

Such

bootstrapping must be barred in order to protect the integrity of
the courts.

In this Court’s view Cobbler carries just as much

weight in the context of a motion for expedited discovery or motion
to quash, as it does in the context of a motion to dismiss.

This

is certainly not the first and only Opinion denying a motion for
expedited discovery because of a deficient pleading.

Third, for

the reasons already discussed, in the context of examining the
totality of the circumstances to decide if expedited discovery
should be granted, it is appropriate to examine in the first
instance whether the complaint can withstand a dismissal motion.

25

A recent instructive decision from this District is Malibu
Media v. Joe Park, No. 17-12107 (JMV)(MF), 2019 WL 2960146 (D.N.J.
July

9,

2019).

In

that

case,

plaintiff

filed

a

copyright

infringement complaint against an alleged John Doe infringer. Id.
at *1.

The complaint was later amended to specifically name the

subscriber

who

then

defaulted.

Id.

In

denying

plaintiff’s

unopposed motion for default judgment, the Court recognized that
simply naming an IP subscriber does not make out a copyright claim
and does not show that the subscriber is liable. Id. at *3.

The

Court agreed with Cobbler and stated, “[p]laintiff will have to
show something more than merely tying Defendant to an IP address
in order to sufficiently establish copyright infringement.”
at *6;

Id.

see also In re BitTorrent Adult Film Copyright Infringement

Cases, 296 F.R.D. at 84 (“[T]he assumption that the person who
pays for internet access at a given location is the same individual
who

allegedly

downloaded

a

single

sexually

explicit

film

is

tenuous, and one that has grown more so over time.”; Patrick
Collins, Inc. v. John Doe 1, 288 F.R.D. 233, (E.D.N.Y. 2012)
(collecting

cases)

(affirming

Magistrate

Judge’s

Report

and

Recommendation that expedited discovery be denied, and agreeing
that the discovery of the subscriber’s identify would not establish
a reasonable likelihood of the identity of the defendant who could
be sued).
The Court is not unsympathetic to Strike 3’s argument that

26

without the requested discovery it may not be able to identify
alleged copyright infringers.

After all, who can argue with the

notion that Strike 3 has a right to protect its copyrights.
However, the fact that the law lags behind technology is not an
ill this Court can cure.

The Court will not create a remedy for

Strike 3 that does not exist under existing law.

Cobbler, 901

F.3d at 1146-47 (“While we recognize this obstacle to naming the
correct

defendant,

this

complication

does

not

change

the

plaintiff’s burden to plead factual allegations that create a
reasonable

inference

that

the

defendant

is

the

infringer.”);

Malibu Media v. Park, No. 17-12107 (JMV)(MF), 2019 WL 2960146, at
*6 (D.N.J. July 9, 2019) (“The Court recognizes . . . that . . .
technology limitations potentially puts a plaintiff in a difficult
position

in

naming

the

correct

defendant,

but

.

.

.

such

limitations do not relieve a plaintiff of alleging sufficient facts
so that a court can reasonably infer that the named defendant is
the actual infringer.”); Strike 3 Holdings, LLC v. Doe, 331 F.R.D.
14, 20 (E.D.N.Y. 2019)(denying request for expedited discovery and
stating, “Strike 3’s concern about its ability to enforce its
copyright against peer-to-peer file sharers is a valid one, but
not

one

that

applicable

provides

discovery

good

rules.

cause
Also

to

depart

stating,

from

“[t]he

otherwise
fact

that

Congress has not acted [to address the problem peer-to-peer file
sharing technology creates], however, does not mean that courts

27

should

take

enforcement

it

upon

themselves

mechanisms

to

to

potential

provide

more

plaintiffs.”);

effective
Hard

Drive

Productions, Inc. v. Does 1-90, No. C11-03825HRL, 2012 WL 1094653,
at *7 (N.D. Cal. Mar. 30, 2012) (denying expedited discovery
despite the court’s recognition that plaintiff is aggrieved by the
apparent

infringement

and

the

court’s

sympathy

toward

the

copyright holder’s argument that lawsuits are the only way for it
to find and stop infringers).

As was well stated in Strike 3

Holdings, LLC., 331 F.R.D. at 20:
The enforcement problem that peer-to-peer file sharing
technology creates for copyright owners is one that
Congress could choose to remedy at any time. . . . The
fact that Congress has not acted, however, does not mean
that courts should take it upon themselves to provide
more effective enforcement mechanisms to potential
plaintiffs . . . .[The Court] conclude[s] that Strike
3’s concern about its ability to enforce its copyright
against peer-to-peer sharers is a valid one, but not one
that provides good cause to depart from otherwise
applicable discovery rules.
Further, as was stated in Strike 3 Holdings, LLC, 351 F. Supp. 3d
at 165, “[m]aybe someday someone will show the Court a method to
identify

infringers

accusations.

with

sufficiently

less

risk

of

false

But because Strike 3 fails to do so here, it cannot

subpoena defendant’s ISP.”
4. Besides the Futility of its Complaints, Other Reasons Exist
to Deny Strike 3’s Motions for Expedited Discovery
Even if the Court ruled that Strike 3’s complaints would
survive a Rule 12(b)(6) motion, it would still deny Strike 3’s

28

requests for expedited discovery.

No single factor accounts for

the Court’s finding that Strike 3’s requests are unreasonable.
Instead, the ruling is based on the totality of the circumstances
which includes the following: (1) Strike 3 bases its complaints on
unequivocal affirmative representations of alleged facts that it
does not know to be true; (2) Strike 3’s subpoenas are misleading
and present too great of an opportunity for misidentification; (3)
Strike 3’s linchpin argument that there is no other way to stop
infringement of its works other than to sue individual subscribers,
is wrong; (4) Strike 3 does not exhaust reasonably available means
to

stop

infringement

besides

filing

individual

lawsuits;

(5)

Strike 3’s lawsuits do not appear to be especially effective in
preventing and deterring infringement; and (6) Strike 3 unduly
minimizes IP subscribers’ privacy interests.

The Court also

recognizes that a subscriber will be materially prejudiced if it
is wrongfully named in a lawsuit. Therefore, considering the
overall administration of justice against the potential prejudice
to a subscriber, the balancing of the interests falls in favor of
denying Strike 3’s requests for expedited discovery.

This is true

even though the Court’s ruling may make it more difficult for
Strike 3 to cease infringement of its copyrights.
A. Strike 3 Bases its Complaints on Unequivocal Affirmative
Representations of Alleged Facts that it Does Not Know to
be True
Even if Strike 3’s complaints pass muster under Rule 12(b)

29

(6), Strike 3 pleads unequivocal statements of alleged facts that
it does not know to be true.

Strike 3 unequivocally avers that

the John Doe IP subscriber “downloaded, copied, and distributed”
its

copyrighted

works.

Compl.

¶

27.

Yet,

however,

Strike

3

acknowledges it is equally as likely the subscriber or someone in
the household is to blame for the infringement. TR2 21:21-22.
Strike 3 also acknowledges that despite its unequivocal averments
it does not know for certain where the subscriber lives.

The fact

that Strike 3 has to resort to making unequivocal statements of
alleged facts that it does not know to be true in order to obtain
expedited discovery, is troublesome and is a relevant fact the
Court considers

when

it

decides

whether

to

grant

Strike

3’s

discovery requests.
It appears to the Court that Strike 3 sacrifices the accuracy
of its pleadings so that it can bootstrap expedited discovery.

In

other words, Strike 3 sacrifices accuracy for expediency. This was
effectively acknowledged by Strike 3’s counsel who stated: “[w]e
do say it’s the subscriber [as the named defendant] because that’s
what we’re going to need the subpoena to help us get the further
investigation.”

TR1 24:18-20.

Strike 3’s counsel also stated:

“I think we’re saying in our initial Complaint that the subscriber
is going to get us to that infringer.”

TR1 24:9-10.

Strike 3

acknowledges its complaints are filed for the “sole purpose” of
enabling it to seek leave to conduct expedited discovery[.]”

30

LB

at 3 (July 15, 2019).

This Court is not the only Court troubled

by Strike 3’s pleadings.

In Strike 3 Holdings, LLC, 331 F.R.D.

at 19, the Court denied Strike 3’s request for expedited discovery
and wrote:
It is thus apparent that Strike 3 is deliberately
asserting claims in a scattershot fashion against a
broad array of individuals simply because it is
confident that many of them will be liable – even if
almost as many of them are not. Such a pleading seems
wholly inconsistent with the requirement that a
plaintiff may not file a complaint for an improper
purpose . . . .[T]he certainty that such an approach
will impose needless burdens on innocent individuals
counsels against a finding of good cause to permit
expedited discovery.
The Court agrees.
B. Strike 3’s Subpoenas are Misleading and Create too Great
of an Opportunity for Misidentification
Apart

from

the

questionable

averments

in

Strike

3’s

complaints, the Court has come to learn that Strike 3’s subpoenas
are misleading.

Prior to its recent inquiries, the Court assumed

Strike 3’s subpoenas identified the name of the IP subscriber when
its works were infringed.

However, the Court was wrong.

Strike 3’s subpoenas only seek to identify the infringer to
one of its works.

There is no “particular rhyme or reason” to the

one listed infringement date listed in Strike 3’s subpoenas except
Strike 3 always “choose[s] the first one that’s been expedited
with the copyright office, has a registration, and is within the
ISP’s data retention.” (alteration in original) TR2 58:22-25 to

31

59:1-2.

The problem with Strike 3’s subpoenas is that Strike 3

does not reveal that the subscriber identified by its subpoenas
may not be the subscriber when its work was infringed.

For

example, as to the exemplar complaint Strike 3 alleges 31 works
were infringed from December 3, 2017 to August 16, 2018.

Strike

3’s November 13, 2018 subpoena [Doc. No. 7-1] only asks for the
name of the IP subscriber on July 27, 2018.

In its motions Strike

3 does not mention that due to dynamic IP addresses the name of
the subscriber identified by Strike 3’s November 13, 2018 subpoena
may not be the person who subscribed to the same address on July
27, 2018.

This information is not revealed by Strike 3 even though

Strike 3 recognizes there are a limited number of IP addresses,
the addresses are dynamic, and they therefore change.

Strike 3

knows that at different times different people can have the same
IP address.
courts.

TR2 28:6-14.

This fact is recognized by numerous

See Call of the Wild Movie, LLC v. Does 1-1,062, 770 F.

Supp.2d 332, 356 (D.D.C. 2011) (“[F]or dynamic IP addresses, a
single IP address may be reassigned to many different computers in
a short period of time.”). Significantly, in United States v.
Vosburgh, 602 F. 3d 512, 523 (3d Cir. 2010), the Court cited the
testimony of a Comcast witness who testified that the lease period
for each IP address is approximately 6-8 days and that after the
expiration of the lease, the assignment of an IP address to a
particular computer may or may not be renewed.

32

In Strike 3

Holdings, LLC, 2019 WL 3069760, at *1 n.1, the Court noted:
An IP address is not really an “address” or physical
“place” in the usual sense of the words, and therefore
the term can be quite misleading. In fact, it is only
an electronic “route” to the Internet assigned by a
Provider to a customer on a given date and hour to
provide access to the internet.
The route can be
assigned to different customers on given dates or given
[hours].
If a customer accesses the Internet briefly
and signs off, the IP address is assigned to another
customer.
Courts routinely recognize the dynamic nature of IP addresses
and how often they change.
frequently

creates

misidentification.

a

The fact that IP addresses change so
significant

Reid, 194 N.J. at 390-91.

opportunity

for

(“Most often when

an individual connects to the Internet, his or her Internet Service
Provider dynamically assigns an IP address to the computer, which
can change every time the user accesses the Internet. In other
words, the ‘dynamic’ IP address assigned to the computer can be
different for each internet session.”); Call of the Wild Movie,
LLC, 770 F. Supp.2d at 356-57 (“Most consumer IP addresses are
dynamic as opposed to ‘static’ . . . . Dynamic IP addresses are
randomly

assigned

to

internet

users,

and

change

frequently.

Consequently, for dynamic IP addresses, a single IP address may be
reassigned to many different computers in a short period of time.
Associating a dynamic IP address with a particular customer at a
given moment makes the task of ‘discovering the identity of a
particular infringer more difficult.’”); Klimas v. Comcast Cable

33

Communications, Inc., No. 02-CV-72054-DT, 2003 WL 23472182, at *5
(E.D. Mich. July 1, 2003), aff’d sub nom. 465 F. 22271 (6th Cir.
2006)(“Dynamic

IP

addresses

constantly

change”);

Criminal

Productions, Inc. v. Doe, Case No. 16-cv-2352 WQH (JLB), 2016 WL
6581850, at *2 (S.D. Cal. Nov. 7, 2016) (citation and quotation
omitted) (“In the context of dynamic IP addresses, a person using
[a particular IP] address one month may not have been the same
person using it the next.”); Strike 3 Holdings, LLC v. Doe, Case
No. 19-cv-00723-JCS, 2019 WL 2996428, at *2 (N.D. Cal. July 9,
2019)(recognizing “the inherent imprecision of an IP address as a
means to identify the individual who purportedly infringed Strike
3’s copyrights”).
Given the dynamic nature of IP addresses, the Court cannot be
sure that the subscriber’s name revealed by Strike 3’s subpoenas
is the name of the subscriber on the infringement date.

Klimas,

2003 WL 23472182, at *5 (“Dynamic IP addresses constantly change
and unless an IP address is correlated to some other information
. . . it does not identify any single subscriber by itself.”).
Strike 3 could conduct a more diligent search if it asked for the
subscriber’s name on the date all 31 of its works were downloaded
(or

a

representative

number)

instead

of

just

a

However, Strike 3 does not do this because of cost.
to 97:1-5.

single

date.

TR1 96:13-25

Further, even if the names of the IP subscribers for

all 31 works are identified, the names are not necessarily the

34

subscribers on the dates of the infringing activity.

In the past,

when the Court granted Strike 3’s discovery motions, it incorrectly
assumed

the

name

of

the

subscriber

identified

by

Strike

3’s

subpoenas was the same subscriber on the date of the alleged
infringement. The Court also incorrectly assumed the listed IP
address was permanent and only belonged to one person.

The Court

now knows this is not necessarily the case. It is implausible that
Strike

3

is

not

aware

of

the

substantial

body

of

case

law

discussing the problems with dynamic IP addresses.
It is also not insignificant an ISP may not possess the
subscriber’s name.

According to Strike 3, it is questionable

whether subscribers retain data for more than three (3) months.
TR2 18:4-12; 23:7-25 to 24:1-4; see also Mem. of Law in Supp. of
Pl.’s Mot. at 2, Doc. No. 4-1 (“John Doe Defendant’s ISP only
maintains the internal logs of the requested information for a
brief period of time.”).

Given that Strike 3 almost always

identifies infringing activity that occurs earlier than three (3)
months before its subpoena, subscriber defendants are at a distinct
disadvantage because the ISP may not have the records to show who
subscribed to the listed IP address on all the dates of the alleged
infringing activity.

The problems associates with IP addresses

was discussed in a recent law review article:
IP addresses are not people. Indeed, IP addresses are
often used by multiple people in ways that make it very
difficult to be sure who is responsible for what

35

activity. Routers are left unsecured or with factory
defaults; passwords are shared with family members,
roommates, guests and neighbors; unsecured guest
accounts are created and then forgotten; passwords are
cracked; passwords are reused across different contexts
(and once a password is guessed or compromised in one
context it is worthless in all of them); and backdoors
are opened up by malware and unsecure devices, including
printers and even refrigerators.
In addition, there are a variety of ways that a hacker
can hide their own IP address by using someone
else's. Regardless of whether IP addresses can be
tracked reliably in other contexts, they may be
particularly unreliable in the BitTorrent context,
because the BitTorrent protocol was designed to allow
high-bandwidth connections and thus "does not perform …
source IP address validation." In practice, this means
that the header information (think of the envelope on a
letter in the postal system) transmitted by a swarm
participant can display someone else's IP address. This
problem is compounded by the fact that many sites
coordinating BitTorrent swarms "inject random IP
addresses into their swarm list results."

See Matthew Sag and Jake Haskell, Defense Against the Dark
Arts of Copyright Trolling, 103 Iowa L. Rev. 571, 590-91
(2018).
C. Strike 3 Has Other Available Means to Stop Infringement
Besides Suing Individual Subscribers in John Doe Complaints
Strike 3’s linchpin argument for why expedited discovery
should be granted is that, otherwise, it is powerless to prevent
infringement of its works.

See Mot. at 11 (“[I]dentifying and

serving the alleged infringers is the only method through which
Plaintiff can protect its copyright interests.”) (citation and
quotation omitted).

Strike 3 further argues that if its request

36

for expedited discovery is denied, it “would be to declare that
copyright infringement is de facto legal, provided it is done
through BitTorrent, because the courts are powerless to stop it.”
LB at 10 (June 11, 2019). The Court rejects Strike 3’s argument
which provides another reason why Strike 3 has not established
good

cause

to

obtain

expedited

discovery.

There

are

other

available means for Strike 3 to prevent infringement of its works
that Strike 3 has chosen not to pursue.

It is unreasonable to

grant Strike 3 expedited discovery when Strike 3 chooses not to
avail itself of legal remedies that do not involve filing thousands
of

complaints

that

impinge

on

the

constitutionally

protected

privacy rights of New Jersey subscribers to ISP’s.
Passed

in

1998,

the

Digital

Millennium

Copyright

Act

(“DMCA”), 17 U.S.C. § 512(a), provides a series of “safe harbors”
to ISP’s that limit their liability for copyright infringement.
However, in order to fall within the safe harbor, the ISP must
show that it has “adopted and reasonably implemented . . . a policy
that provides for the termination in appropriate circumstances of
subscribers . . . who are repeat infringers.”
(i)(1)(A).

UMG

Recordings,

Inc.

v.

17 U.S.C. §512

Grande

Communications

Networks, LLC, 384 F.Supp.3d 743, 755 (W.D. Tx. 2019) (“[T]o be
eligible

for

the

DMCA

safe

harbor,

an

ISP

must

‘reasonably

implement’ a termination policy, not just adopt one.”). To assess
whether an ISP has reasonably implemented a repeat infringer

37

termination policy, the relevant question to ask is whether the
ISP

actually

terminates

the

uploading

privileges

offenders under appropriate circumstances.

of

repeat

Id.

The DMCA affords copyright owners such as Strike 3 a process
to notify ISP’s of the infringement of their works.

The ISP’s are

then required to act on valid notifications and to terminate, in
appropriate circumstances, subscribers and account holders who are
repeat offenders. 16

Courts have not defined a specific number of

strikes against a user that require an ISP to suspend or terminate
that user’s access to the internet.

Rosen v. eBay, Inc., No. CV

16-9183-MWF(Ex), 2018 WL 4808513, at *6 (C.D. Cal. Apr. 4, 2018).
Comcast, for example, has a multi-step policy and reserves the
right to suspend or terminate service to a repeat infringer who
receives

multiple

DMCA

notices.

See

Comcast’s

DMCA

Repeat

Infringer Policy for Xfinity Internet Service, supra note 16.
Specifically,

Comcast’s

serial

infringer

policy

provides

as

follows:
Triggering steps under this policy may result in the
following: a persistent in-browser notification or other
form of communication that requires you to log in to
your account or call us; a temporary suspension of, or
other interim measures applied to, your service; the
termination of your Xfinity internet service as well as
your other Xfinity services[.]

16

The Repeater Infringer Policy of each ISP can be found on the internet. See
Comcast’s DMCA Repeat Infringer Policy for Xfinity Internet Service,
https://www.xfinity.com/support/articles/comcast-dmca-compliance-policy (last
visited Oct. 24, 2019) (providing information about Comcast’s Repeat
Infringer Policy).

38

Id.
One would think that Strike 3 would be eager to notify ISP’s
that its subscribers are infringing their copyrights, so that an
infringer’s internet service would be interrupted, suspended or
terminated and infringement would stop.

However, Strike 3 does

not take this simple step but instead files thousands of lawsuits
arguing that it has no other recourse to stop infringement. Strike
3 admits that, with regard to the exemplar subscriber and its other
John Doe defendants, it did not send ISP’s take down notices. TR1
113:15-18; TR2 45:4-8.

Inexplicably, Strike 3 does not send take

down notices concerning the individual subscribers it sues, but
yet

it

sends

these

notices

to

torrent

websites,

infringing websites like The Pirate Bay.

Google,

and

TR1 110:12-25.

As

discussed, although Strike 3 has the right to notify ISP’s of
infringing

activity,

and

ISP’s

can

disable

the

infringer’s

internet access, Strike 3 does not send take down notices regarding
the John Does that it sues.

In support of its discovery motions

it is unreasonable for Strike 3 to argue that it has no alternative
to filing John Doe complaints, while not using the protections
afforded to it under the DMCA.

The Court recognizes there is no

exhaustion requirement that requires Strike 3 to send take down
notices before it files its copyright cases.

However, it is not

reasonable for Strike 3 to argue it has no recourse but to seek
expedited discovery when it ignores the DMCA.

39

Strike 3’s arguments for why it does not send take down
notices concerning its John Does defendants are not persuasive.
It is not plausible that Strike 3 cannot find an outside service
to send out its notices.
take down notices.

Even if true, Strike 3 can serve its own

Further, the Court does not accept Strike 3’s

argument that take down notices are fruitless.
A recent case that debunks Strike 3’s futility argument is
BMG Rights Mgmt. (US) LLC v. Cox Commc’n., Inc., 881 F.3d 293 (4th
Cir. 2018).

In that case BMG sued Cox, an ISP. Id. at 298.

BMG

owns copyrights to musical compositions and sued to hold Cox
contributorily liable for the infringement of BMG’s copyrights by
Cox’s customers. Id.

As part of its defense, Cox argued it was

immunized from liability because of the safe harbor provision in
the DMCA. Id. at 300-01.

However, the Court ruled that Cox could

not assert a “safe harbor” defense because it did not reasonably
implement its repeat infringer policy.

Id. at 303.

Thus, if an

ISP such as Comcast willfully ignores Strike 3’s DMCA notices
and/or does not follow its repeat infringer policy, Strike 3 has
the option of bringing an action against the ISP. 17 In the event
ISP’s are not taking Strike 3’s notices seriously, the possibility
of

lawsuits

akin

to

BMG’s

complaint

17

may

spur

ISP’s

to

more

The Court is not encouraging Strike 3 to file these lawsuits. The Court
simply cites to BMG to debunk Strike 3’s argument that there are no
alternatives to stopping a subscriber from infringing other than to file
John Doe complaints seeking expedited discovery.

40

faithfully comply with their repeat infringer policies and suspend
or bar internet service to repeat infringers.

One would expect

this to create a substantial incentive for persons to stop the
infringement of Strike 3’s works.
D. The Deterrent Effect of Strike 3’s Lawsuits is Questionable
While the Court recognizes Strike 3 has the right to protect
its copyrights, it is not clear, as Strike 3 argues, that its
complaints are effective in preventing and deterring infringement.
Strike 3 might engender more sympathy if its lawsuits effectively
deterred
Despite

infringers.
filing

This

thousands

does

of

not

appear

copyright

to

be

complaints,

recognizes infringement of its works has increased.

the

case.

Strike

3

(Albeit,

Strike 3 attributes this to the increased popularity of its sites).
In addition, Strike 3 estimates that between 200,000 to 400,000
people illegally download its videos every month. TR1 126:16-22;
TR2 84:8-12.

Also, the Court recently learned that Strike 3 only

targets

limited

the

universe

of

residential

reputable ISP’s. TR2 37:7-19; 83:15-19.

subscribers

of

As a result, “granting

[Strike 3] leave to issue subpoenas . . . will do little if anything
to deter future copyright violations.

[Consequently], Strike 3’s

interest in enforcing its rights does not constitute good cause to
allow premature subpoenas.”

Strike 3 Holdings, LLC, 331 F.R.D.

at 19.

41

E. Prejudice to Subscribers
Thus

far,

the

Court’s

balancing

has

not

focused

on

the

interests of the innocent “John Doe” or subscriber defendant.
However, the substantial prejudice that may inure to a subscriber
from the release of its private information and the possible false
identification

in

a

lawsuit

is

significant.

The

innocent

subscriber may have to pay a substantial sum to retain a lawyer to
defend the lawsuit, or possibly settle to avoid incurring future
costs.

The innocent subscriber may also be subject to unduly

intrusive discovery such as searches of his/her computer and social
media.

In addition, negative publicity and embarrassment may

occur from being named in a copyright infringement lawsuit. Also,
the fact that the innocent subscriber was named in a lawsuit may
be revealed in an unrelated employment or credit search.
Importantly,

Strike

substantial

interest

information.

See

interest
Amendment

is

3

in

Mot.

the
at

minimal[.]”

expectation

unduly

privacy

12

(“John

Although
of

minimizes

subscription

Doe

there

privacy

subscriber’s

his/her

of

the

in

Defendant’s

may

not

be

internet

a

privacy
Fourth

subscriber

information, “Article 1, Paragraph 7 of the New Jersey Constitution
protects

an

individual’s

privacy

interest

in

the

subscriber

information . . . provide[d] to an internet service provider.”
Reid, 194 N.J. at 399; see also In re Nickelodeon Consumer Privacy
Litigation, MDL No. 2443 (SRC), 2014 WL 3012873, at *18 (D.N.J.

42

July 2, 2014) (“[T]he right to privacy created by the New Jersey
Constitution provides greater protection than the privacy right
created by the federal Constitution.”) (citation omitted).

The

Court is not ruling that subscriber information may never be
disclosed in response to a subpoena.

However, given the expansive

view of individual privacy under New Jersey law, there should be
a good reason before subscriber information is turned over. This
is especially true in a situation where questionable averments are
relied upon to obtain discovery.
F. Rebuttal of Strike 3’s Arguments
No

good

reason

exists

to

grant

Strike

3’s

requests

for

expedited discovery since its complaints do not plead a cognizable
claim.

Even if the complaints pass muster, the danger of a false

identification and the prejudice it may cause outweighs Strike 3’s
interest in obtaining expedited discovery.

Relevant to this

balancing is the fact that Strike 3’s lawsuits may not effectively
deter

infringement,

and

other

reasonably

available

and

less

intrusive legal recourse is available to Strike 3 to prevent
infringement.
Strike 3 argues the Court should trust it to only name
defendants against whom it has a “rock-solid” case. The Court
agrees with the following statement made in a recent decision
rejecting Strike 3’s argument:
I have no reason to question the sincerity of Strike 3’s

43

stated commitment to ethical conduct.
But as a
practical matter, its assertion in that regard is no
more than a promise that a Court must hope it will
fulfill because it has no realistic prospect of
meaningful judicial oversight…I conclude that Strike 3’s
promises, and its history of avoiding judicial oversight
after securing leave to serve subpoenas, do not satisfy
the good cause standard.
Strike 3 Holdings, LLC, 331 F.R.D. at 18.
None of Strike 3’s arguments for why good cause exists to
grant expedited discovery carry the day.

Strike 3 argues it has

pleaded a prima facie claim for direct copyright infringement
against the John Doe IP subscriber.
reasons

discussed.

Even

if

The Court disagrees for the

Strike

3

passes

this

initial

threshold, the Court has shown that Strike 3’s averments are
conclusory.

Also,

that

Strike

3

relies

upon

unequivocal

affirmative representations of alleged facts that it does not know
to be true.

Strike 3 argues that since its discovery requests are

narrowly tailored, they should be granted.

However, due to the

prevalence of dynamic IP addresses, Strike 3’s narrow discovery
requests create a greater likelihood of misidentification than
broader requests.

Strike 3 argues there is no alternative means

to discover the identity of subscribers.

While this may be true,

Strike 3 acknowledges it does not know if the subscriber infringed
its

works.

Although

Strike

3’s

subpoenas

request

relevant

information, this is not the touchstone for expedited discovery.
Strike 3 argues the subscriber’s identity is necessary to advance

44

its infringement claim.

Strike 3 ignores the fact that the law

does not provide a remedy for every wrong.

Last, Strike 3 argues

the subscriber will not be prejudiced by its subpoenas.
contrary,

the

subpoenas

infringe

the

subscriber’s

To the
privacy

interests and result in substantial prejudice to a misidentified
alleged infringer.
Conclusion
In conclusion, the Court finds that good cause does not exist
to grant Strike 3’s motions for expedited discovery.

Based on the

extensive record, it is unreasonable to grant Strike 3’s motions.
The Court agrees with Judge Lamberth’s ultimate ruling but relies
upon a different emphasis.

Granting expedited discovery is the

exception rather than the rule, and a good reason must exist to
grant the discovery. Especially in the John Doe or ex parte
discovery context, it is appropriate to closely scrutinize whether
a pleading is futile or passes muster.

Expedited discovery is not

justified when Strike 3 bootstraps its discovery requests onto a
deficient pleading that would not survive a Rule 12(b)(6) motion.
Even if Strike 3’s complaints would survive a Rule 12(b)(6)
motion,

the

requested

discovery

would

still

be

denied.

The

minimal subscriber information Strike 3 requests in its subpoenas
is misleading and does not account for the prevalence of dynamic
IP addresses.

Consequently, Strike 3’s discovery creates too

great of an opportunity for misidentification.

45

Further, the

linchpin of Strike 3’s argument for good cause, that there is no
alternative option to prevent the infringement of its works other
than to identify a subscriber via an expedited subpoena to an ISP,
is wrong.
filing

Other means are reasonably available to Strike 3 besides

thousands

of

individual

John

Doe

lawsuits.

When

the

foregoing is weighed against the prejudice that may result to an
innocent

subscriber

defendant,

including

the

invasion

of

a

constitutionally protected privacy interest recognized by the New
Jersey Supreme Court, the balance falls in favor of denying Strike
3’s discovery motions.
The Court is not unmindful that its ruling may make it more
difficult for Strike 3 to identify copyright infringers.

To the

extent this is the price to pay to assure compliance with the
applicable law, so be it. A legal remedy does not exist for every
wrong, and it is unfortunately the case that sometimes the law has
not yet caught up with advanced technology.

This is not the first

time, nor will it be the last, where a party who believes it was
wronged was denied discovery.
Accordingly, for the foregoing reasons, and to the extent it
has not already been done, it will be Ordered that Strike 3’s
motions for expedited discovery are DENIED.

To the extent these

motions have been previously granted, and the defendant has not
yet been served, the Orders will be vacated.

The Court will not

interfere with cases where Strike 3 has identified a defendant

46

other than through an expedited discovery subpoena issued with
leave of Court.
s/ Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge

DATED: October 24, 2019

47