Strike 3 Holdings, LLC v. JOHN DOE subscriber assigned IP address 174.178.118.82

Filing 7

MEMORANDUM (Order to follow as separate docket entry) re 5 First MOTION for Discovery Seeking Leave To Serve A Third Party Subpoena Prior To A Rule 26(f) Conference filed by Strike 3 Holdings, LLC Signed by Honorable Malachy E Mannion on 11/25/2024. (gg)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
STRIKE 3 HOLDINGS, LLC,
CIVIL ACTION NO. 3:24-cv-1642

Plaintiff

(JUDGE MANNION)

v.
JOHN DOE, subscriber assigned
IP address 174.178.118.82,
Defendant
MEMORANDUM

ln this internet copyright infringement action, Plaintiff claims that
Defendant, identified at this time only by his or her Internet Protocol address
(" IP address"), used a file-sharing network to infringe Plaintiff's copyrighted
motion pictures. (See generally Doc. 1). Presently before the court is
Plaintiff's motion for expedited discovery. (Doc. 5). Plaintiff seeks to serve
third-party subpoenas on an internet service provider ("ISP"), identified by an
infringement detection software system and verified by an expert computer
forensics company, prior to a Rule 26(f) conference in order to obtain the
name and address of the unidentified defendant, who is associated with the
identified IP address that was allegedly used to illegally copy and distribute
Plaintiff's copyrighted work. For the following reasons, Plaintiff's motion to

conduct expedited discovery with respect to the identified IP address will be
granted, subject to the restrictions set forth in the accompanying order.

I.

Background

Plaintiff, Strike 3 Holdings, LLC, is the owner of certain motion pictures
distributed through Blacked, Tushy, Vixen, Tushy Raw, Blacked Raw,
MILFY, and Stayed adult websites and DVDs. (Doc. 1, ,i 3). Plaintiff asserts

the following facts in its complaint (Doc. 1), motion for expedited discovery
(Doc. 5), and brief in support thereof (Doc. 6). The court accepts the
averments as true only for purposes of this motion.
Plaintiff claims that the individual associated with IP address
174.178.118.82 used BitTorrent protocol to infringe on its exclusive rights by
copying and distributing the constituent elements of 24 separate movies,
despite Plaintiff holding a registered copyright for each. By way of
background, 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 other
BitTorrent users in order to simultaneously download and upload pieces of
the file from and to other users. To share a movie within the BitTorrent
network, a user first uses BitTorrent software to create a .torrent file from the
original digital media file. This process breaks the original digital media file
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down into numerous pieces to allow other users on the network to download
such pieces from each other, rather than transferring a much larger digital
file. Once a user has downloaded all the pieces of the file, BitTorrent uses a
unique identifier on each piece, known as a "hash value," to reassemble the
pieces into a complete file so the user can play the downloaded file. Although
the individual user does not display his or her name while using BitTorrent,
an individual user exposes the IP address he or she is using when
downloading or sharing a file.
Plaintiff employed its infringement detection system , named "VXN
Scan" to discover that Defendant used the BitTorrent file network to
download and distribute Plaintiff's copyrighted motion pictures. The John
Doe Defendant allegedly used BitTorrent to obtain and distribute copies of
Plaintiff's works as enumerated in Exhibit A of the Complaint. Plaintiff used
IP address geolocation technology by Maxmind Inc., a provider of IP address
intelligence and online fraud detection tools, to determine that Defendant's
IP address traced to a physical address in the Middle District of
Pennsylvania.1 Plaintiff alleges that at no point in time did it authorize, permit

1

In situations where a plaintiff filed suit against unnamed defendants,
courts have accepted IP addresses as establishing a prima facie case of
personal jurisdiction. Malibu Media, LLC v. John Does 1-15, Civ. No. 12-cv2077, 2012 WL 3089383, *10 (E.D. Pa. July 30, 2012) (citations omitted).
(footnote continued on next page)

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or consent to Defendant's distribution of its works. Plaintiffs complaint
asserts that the John Doe Defendant's aforementioned conduct constitutes
direct copyright infringement.
On October 7, 2024, Plaintiff filed the instant motion for expedited
discovery, seeking leave to serve a subpoena upon Comcast Cable, the ISP
associated with the IP address of the Defendant. In the memorandum of law
in support of Plaintiffs motion, Plaintiff asserts that only the ISP is able to
determine the identity of the John Doe Defendant since the ISP is the only
entity with the requisite information to identify the account holder of the IP
address at specific times when infringements were recorded . Plaintiff argues
that such expedited discovery is reasonable under the circumstances.

II.

Legal Standard
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Generally, [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 ).
However, courts have broad discretion to manage the discovery process and

Plaintiffs factual assertion as to the location of the John Doe Defendant at
the time of the alleged infringement establishes personal jurisdiction for
purposes of the pending motion. Should the ISP or the John Doe Defendant
make a showing contrary to this assertion, the court will reexamine the issue
of personal jurisdiction.
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can expedite or otherwise alter the timing and sequence of discovery. See
id.

Courts faced with motion for expedited discovery requests to ascertain
the identify of "John Doe" defendants in internet copyright infringement cases
often apply the "good cause" or reasonableness standard.2 See Canal Street
Films v. Does 1-22, Civ. No. 1:13-CV-0999, 2013 WL 1775063, at *2 (M.D.

Pa. Apr. 25, 2013) ("[T]he recent trend among courts in this circuit favors the
'good cause' or reasonableness standard."'); see also, e.g., Strike 3
Holdings, LLC v. Doe, No. CV 21-4877-KSM, 2021 WL 5235286, at *1 (E. D.
Pa. Nov. 10, 2021 ); Samuel, Son & Co. v. Beach, Civ. No. 13-cv-0128, 2013
WL 4855325, *3 (W.D. Pa. Sept. 11, 2013); West Coast Prod. Inc. v. Does
1-169, Civ. No. 12-cv-5930, 2013 WL 3793969, *1 (D.N.J. July 19, 2013);
2

Some districts courts in the Third Circuit have applied an injunctive
relief standard. See Leone v. Towanda Borough, Civ. No. 12-cv-0429, 2012
WL 1123958, *12 (M.D. Pa. Apr. 4, 2012). The injunctive relief standard is
more stringent and requires the moving 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 is greater than the injury that the defendant will suffer if the
expedited relief is granted. Gucci Am., Inc. v. Daffy's Inc., Civ. No. OO-cv4463, 2000 WL 1720738, *6 (D.N.J. Nov. 14, 2000) (quoting Notaro v. Koch,
95 F.R.D. 493, 405 (S.D.N.Y. 1982)). As noted by the Leone Court, the Third
Circuit has not yet adapted a clear standard, however, the recent trend
among courts in this circuit favors the "good cause" or reasonableness
standard. Leone, 2012 WL 1123958 at *2. The court applies this standard to
Plaintiff's motion.
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Leone v. Towanda Borough, Civ. No. 12-cv-0429, 2012 WL 1123958, *2

(M.D. Pa. Apr. 4, 2012) (citing Kone Corp. v. Thyssenkrupp USA, Inc., Civ.
No. 11-cv-0465, 2011 WL 4478477, *3 (D. Del. Sept. 26, 2011 )).
On ruling on a motion for expedited discovery, the court should
consider the "entirety of the record to date and the reasonableness of the
request in light of all of the surrounding circumstances." Modern Woman,
LLC v. Does I-X, Civ. No. 12-cv-4858, 2013 WL 888603, *2 (D.N.J. Feb. 27,

2013) (citing Better Packages, Inc. v. Zheng, Civ. No. 05-cv-4477, 2006 WL
1373055, *2 (D.N.J. May 17, 2006)). Good cause is usually found where the
plaintiff's need for expedited discovery, in consideration of the administration
of justice, outweighs the possible prejudice or hardship to the defendant.
Leone, 2012 WL 1123958 at *2; Fonovisa, Inc. v. Does 1-9, Civ. No. 07-cv-

1515, 2008 WL 919701 , *10 n.22 (W.D. Pa. Apr. 3, 2008) (citing Semitool,
Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002)).

Ill.

Discussion

The reasonableness standard requires the court to consider the "actual
circumstances of this case, as well as . .. certain factors such as . . . the
need for discovery, and the breadth of the moving party's discovery
requests." Kone Corp., 2011 WL 4478477 at *6 (quoting BAE Sys. Aircraft
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Controls, Inc. v. Eclipse Aviation Corp., 224 F.R.D. 581 , 587 (D. Del. 2004)).

In the matter at hand, the actual circumstances favor expedited discovery
and satisfy the reasonableness standard.
For purposes of the instant motion, Plaintiff asserts a prima facie claim
of copyright infringement. To establish copyright infringement, two elements
must be proven: (1) ownership of a valid copyright; and (2) copying of
constituent elements of the work that are original. Feist Publ'ns, Inc. v. Rural
Tel. Serv. Co., 499 U.S. 340, 361 (1991) (citing Harper & Row Publishers,
Inc. v. Nation Enters., 471 U.S. 539, 548 (1985)). Here, Plaintiff satisfies both

elements. First, Plaintiff avers that it is the copyright holder for each of the
Motion Pictures. In addition, Plaintiff asserts that the John Doe Defendant,
through the use of BitTorrent, illegally copied and distributed the constituent
elements of 27 of Plaintiff's motion pictures. Therefore, the court finds that
Plaintiff has adequately set forth a prima facie claim of copyright infringement
for purposes of the instant motion. See Malibu Media, 2012 WL 3089383 at
*7.
Moreover, Plaintiff has shown to have no practical way to identify the
alleged infringer, apart from serving a subpoena on the identified ISP. See
Malibu Media , LLC, 2012 WL 3089383, at *7 ("[W]e fail to recognize any

available alternative. "). Accordingly, without granting the pending motion,
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Plaintiff can neither identify nor serve the John Doe Defendant, and this
action cannot consequently proceed. See id. at *1 ("Without knowing
defendant's identity, plaintiff cannot make service and the lawsuit cannot
proceed."); see a/so Alston v. Parker, 363 F.3d 229, 233 n.6 (3d Cir. 2004)
(when "discovery is sought by a plaintiff [that] would aid in the identification
of responsible defendants or the lack thereof, district courts should strongly
consider granting it."), abrogated on other grounds by Ashcroft v. Iqbal, 556
556 U.S. 662, 678 (2009). Consequently, identifying and serving the alleged
infringer is the only method through which plaintiff can protect its copyright
interests. And this expedited discovery request relates to serving subpoenas
upon Comcast Cable to gather the John Doe Defendant's account
information for the purpose of properly identifying the alleged infringer and
serving the complaint. Thus, Plaintiffs expedited discovery request appears
reasonable and not overbroad.
Although the court concludes that the request for expedited discovery
is reasonable under the circumstances, in light of the unavoidable ex parte
nature of such a request, the court finds it prudent to incorporate some
protections to avoid any unintended consequences of the disclosure of the
John Doe Defendant's information. Other districts courts have expressed
similar concerns and have incorporated conditions intended to curtail
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unfettered expedited discovery in similar copyright infringement actions.
See, e.g., Malibu Media LLC v. Doe, No. 1:15-CV-1129, 2015 WL 3795948,

at *1 (M.D. Pa. June 18, 2015); Vision Films, Inc. v. John Does 1-24, Civ.
No. 12-cv-1746, 2013 WL 1163988, *5-6 (D. Del. Mar. 20, 2013) (citing
Digital Sin v. Does 1-176, 279 F.R.D. 239, 244-45 (S.D.N.Y. 2012)).

Accordingly, the court will grant Plaintiffs motion, subject to the conditions
set forth in the accompanying order.

IV.

Conclusion

For the foregoing reasons, the court finds that Plaintiff has established
a prima facie claim for copyright infringement for purposes of the instant
motion and that Plaintiff is unable to identify the John Doe Defendant beyond
his or her IP address, 174.178.118.82. Moreover, the court finds that
Plaintiffs request for expedited discovery is narrowly tailored. Accordingly,
the court concludes that Plaintiffs request for expedited discovery is
reasonable under the circumstances. Therefore, Plaintiffs motion (Doc. 5)
will be GRANTED subject to certain conditions set forth in the order.

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An appropriate order will issue.

Unite States District Judge
DATE: November 25, 2024
24-1642-01

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