Strike 3 Holdings, LLC v. Doe
Filing
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OPINION & ORDER re: 16 LETTER MOTION for Extension of Time Effectuate Service addressed to Magistrate Judge Ona T. Wang from Jacqueline James dated May 2, 2024. filed by Strike 3 Holdings, LLC. Accordingly, Plaintiff's M otion for Leave to Serve a Third-Party Subpoena is hereby GRANTED. The Rule 26(f) initial conference scheduled for May 9, 2024 is ADJOURNED sine die. Plaintiff's deadline to effectuate service on the Defendant is EXTENDED to August 3, 2024. T o protect the rights of CSC Holdings LLC and Defendant John Doe, it is ORDERED that: Plaintiff may immediately serve a Rule 45 subpoena on CSC Holdings LLC to obtain the name and address of the subscriber associated with IP address 24.189.1 72.229. Plaintiff shall include a copy of this Order with the subpoena. CSC Holdings LLC shall have thirty (30) days from the date it is served the subpoena to serve the subscriber with a copy of the subpoena and a copy of this Order. CSC Holdings LLC may use any reasonable means to provide such notice, including, but not limited to, written notice to the subscriber's last known address. The subscriber shall have forty-five (45) days from the date he/she is served the subpoena to file a ny motion with the Court to contest the subpoena, including any request to litigate the subpoena anonymously. CSC Holdings LLC shall not turn over the subscriber's identifying information to Plaintiff before the expiration of this 45-day peri od. CSC Holdings LLC may also move to contest the subpoena consistent with Federal Rule of Civil Procedure 45. If the subscriber or CSC Holdings LLC files a motion to contest the subpoena, CSC Holdings LLC may not turn over any information to Plain tiff pursuant to the subpoena until the Court has resolved all such motions and ordered CSC Holdings LLC to disclose the information. If the 45-day period lapses without the subscriber or CSC Holdings LLC contesting the subpoena, CSC Holdings LLC shall have ten (10) days to produce to Plaintiff all the information necessary to comply with the subpoena. CSC Holdings LLC shall preserve any subpoenaed information pending the resolution of any motion to contest the subpoena. (Signed by Magistrate Judge Ona T. Wang on 5/8/2024) (ate)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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STRIKE 3 HOLDINGS, LLC,
Plaintiff,
-againstJOHN DOE, subscriber assigned IP address
24.189.172.229,
Defendant.
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24-CV-1711 (AT) (OTW)
OPINION & ORDER
ONA T. WANG, United States Magistrate Judge:
Plaintiff Strike 3 Holdings, LLC (“Plaintiff”) moves for leave pursuant to Federal Rule of
Civil Procedure 26(d)(1) to serve a subpoena on non-party Internet Service Provider CSC
Holdings LLC (Optimum Online) to ascertain the identity of Defendant John Doe. (ECF 11). In its
Complaint, Plaintiff alleges that Defendant John Doe infringed upon Plaintiff’s copyrights by
downloading Plaintiff’s films and distributing them without Plaintiff’s authorization. For the
reasons below, Plaintiff’s motion is GRANTED. The Rule 26(f) initial conference scheduled for
May 9, 2024 is ADJOURNED sine die. Plaintiff’s deadline to effectuate service on the Defendant
is EXTENDED to August 3, 2024.
I.
Background
Plaintiff runs subscription-based websites streaming adult films and also licenses those
films to third-party distributors. (ECF 1 at 4; ECF 12 at 5). Plaintiff alleges that Defendant used
BitTorrent, a file distribution network, 1 to download and distribute Plaintiff’s work without
Plaintiff explains that “BitTorrent is a system designed to quickly distribute large files over the Internet. Instead of
downloading a file, such as a movie, from a single source, BitTorrent users are able to connect to the computers of
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authorization. (ECF 1 at 4–8). To combat this suspected theft, Plaintiff developed, owns, and
operates an infringement detection system named “VXN Scan,” which established direct TCP/IP
connections with Defendant’s Internet Protocol (“IP”) address while Defendant was using the
BitTorrent network, and downloaded one or more pieces of Plaintiff’s works from Defendant.
(ECF 1 at 6). Defendant John Doe is associated with the IP address 24.189.172.229. (ECF 1 at
¶5). Plaintiff alleges that Defendant downloaded and made available on BitTorrent at least one
of Plaintiff’s films. (ECF 1 at 6).
Because Plaintiff only has Defendant’s IP address, Plaintiff now moves for leave to
subpoena Defendant’s Internet Service Provider, CSC Holdings LLC, for the name and address of
Defendant John Doe.
II.
Discussion
a. Legal Standard
Generally, a party may not seek discovery prior to the parties’ Rule 26(f) conference
unless it obtains leave of the Court. Fed. R. Civ. P. 26(d)(1). The Court will permit such early
discovery upon a showing of “reasonableness” and “good cause.” Stern v. Cosby, 246 F.R.D.
453, 457 (S.D.N.Y. 2007). In cases involving subpoenas seeking identifying information from
Internet Service Providers, courts apply this standard by looking at five factors: (1) whether
plaintiff has a prima facie case for infringement, (2) the specificity of the request, (3) the
absence of alternative means to obtain the information, (4) the need for the subpoenaed
information, and (5) the defendant’s expectations of privacy. See Strike 3 Holdings, LLC v. Doe,
other BitTorrent users in order to simultaneously download and upload pieces of the file from and to other users.”
(ECF 1 ¶20).
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No. 18-CV-12167 (AJN), 2019 WL 340712, at *2 (S.D.N.Y. Jan. 24, 2019) (citing Arista Records,
LLC v. Doe 3, 604 F.3d 110, 119 (2d Cir. 2010)).
b. Analysis
Plaintiff has made a prima facie showing of copyright infringement. “To prove a claim of
copyright infringement, a plaintiff must show (1) ownership of a valid copyright and (2) copying
of constituent elements of the work that are original.” Urbont v. Sony Music Entertainment, 831
F.3d 80, 88 (2d Cir. 2016). In its Complaint, Plaintiff attaches a sheet listing the United States
Copyright Office registration information for its works that it claims Defendant distributed
without authorization. (ECF 1-1). Plaintiff then alleges that Defendant “copied and distributed
the constituent elements of Plaintiff’s Works.” (ECF 1 ¶52).
Plaintiff’s request is also sufficiently specific, requesting only the “true identity” of the
subscriber associated with IP address 24.189.172.229. (ECF 12 at 11). Courts in this District have
repeatedly found that information necessary to identify and serve the defendant satisfies the
specificity factor. See, e.g., Strike 3 Holdings, LLC v. Doe, No. 18-CV-5590 (AJN), 2018 WL
3756453, at *3 (S.D.N.Y. July 19, 2018); Malibu Media, LLC v. Doe No. 4, No. 12-CV-2950 (JPO),
2012 WL 5987854, at *3 (S.D.N.Y. Nov. 30, 2012); John Wiley & Sons, Inc. v. Doe Nos. 1-30, 284
F.R.D. 185, 190 (S.D.N.Y. 2012).
Plaintiff asserts that absent CSC Holdings LLC’s cooperation, it would otherwise be
unable to identify Defendant. See ECF 12 at 11; see also Wiley, 284 F.R.D. at 190 (noting
BitTorrent only shows the user’s IP address); Digital Sin, Inc. v. Does 1-27, No. 12-CV-3873
(JMF), 2012 WL 2036035, at *4 (S.D.N.Y. June 6, 2012) (pointing out that Internet providers’
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protection of customers’ privacy means they are the only source of subscribers’ identifying
information).
It follows that because obtaining information from CSC Holdings LLC is necessary to
identify Defendant, obtaining information from CSC Holdings LLC regarding the subscriber’s IP
address is necessary for the continued prosecution of this action. See Strike 3 Holdings, 2018
WL 3756453, at *3 (noting inability to serve the defendant would effectively terminate the
litigation); Sony Music Entertainment Inc. v. Does 1-40, 326 F. Supp. 2d 556, 566 (S.D.N.Y. 2004)
(finding Doe defendants’ identities “critical”).
Lastly, “ISP subscribers have a minimal expectation of privacy in the transmission or
distribution of copyrighted material.” Wiley, 284 F.R.D. at 191; see also Malibu Media, LLC v.
John Does 1-11, No. 12-CV-3810 (ER), 2013 WL 3732839, at *6 (S.D.N.Y. July 6, 2013) (finding
courts in this District agree on “minimal” privacy expectation for copyright infringers). Any
concern about identifying the wrong individual and subsequent undue embarrassment can be
alleviated with the Court’s procedural safeguards described below. See Digital Sin, 2012 WL
2036035, at *4.
III.
Conclusion
Accordingly, Plaintiff’s Motion for Leave to Serve a Third-Party Subpoena is hereby
GRANTED. The Rule 26(f) initial conference scheduled for May 9, 2024 is ADJOURNED sine die.
Plaintiff’s deadline to effectuate service on the Defendant is EXTENDED to August 3, 2024. To
protect the rights of CSC Holdings LLC and Defendant John Doe, it is ORDERED that:
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Plaintiff may immediately serve a Rule 45 subpoena on CSC Holdings LLC to obtain the
name and address of the subscriber associated with IP address 24.189.172.229. Plaintiff shall
include a copy of this Order with the subpoena.
CSC Holdings LLC shall have thirty (30) days from the date it is served the subpoena to
serve the subscriber with a copy of the subpoena and a copy of this Order. CSC Holdings LLC
may use any reasonable means to provide such notice, including, but not limited to, written
notice to the subscriber’s last known address.
The subscriber shall have forty-five (45) days from the date he/she is served the
subpoena to file any motion with the Court to contest the subpoena, including any request to
litigate the subpoena anonymously. CSC Holdings LLC shall not turn over the subscriber’s
identifying information to Plaintiff before the expiration of this 45-day period. CSC Holdings LLC
may also move to contest the subpoena consistent with Federal Rule of Civil Procedure 45. If
the subscriber or CSC Holdings LLC files a motion to contest the subpoena, CSC Holdings LLC
may not turn over any information to Plaintiff pursuant to the subpoena until the Court has
resolved all such motions and ordered CSC Holdings LLC to disclose the information.
If the 45-day period lapses without the subscriber or CSC Holdings LLC contesting the
subpoena, CSC Holdings LLC shall have ten (10) days to produce to Plaintiff all the information
necessary to comply with the subpoena.
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CSC Holdings LLC shall preserve any subpoenaed information pending the resolution of
any motion to contest the subpoena.
SO ORDERED.
s/ Ona T. Wang
Ona T. Wang
United States Magistrate Judge
Dated: May 8, 2024
New York, New York
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