Strike 3 Holdings, LLC v. John Doe

Filing 6

MEMORANDUM AND ORDER granting 5 MOTION for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(gclair, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
STRIKE 3 HOLDINGS, LLC,
Plaintiff,
v.
JOHN DOE, subscriber assigned IP
address 73.6.6.123,
Defendant.

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November 17, 2021
Nathan Ochsner, Clerk

CIVIL ACTION H-21-3319

MEMORANDUM AND ORDER ON MOTION FOR LEAVE TO SERVE A
THIRD PARTY SUBPOENA
Strike 3 Holdings is the owner of “adult motion pictures” which “are distributed through
its adult websites and DVDs.” (Docket Entry No. 1, at 1). Strike 3 Holdings’s “motion pictures
are among the most pirated content in the world.” (Id., at 4). This case concerns the “John Doe”
defendant’s alleged infringement of 61 of the company’s adult films.
Strike 3 Holdings moves for leave to serve a third-party subpoena prior to a Rule 26(f)
conference. (Docket Entry No. 5). Strike 3 Holdings filed this lawsuit in October 2021 against
the “John Doe” defendant who is identified only by the subscriber Internet Protocol (“IP”) address
that he or she is alleged to have used to illegally download and distribute Strike 3 Holdings’s
copyrighted movies. Strike 3 Holdings seeks to subpoena John Doe’s internet service provider,
Comcast Cable, to obtain “the true name and address of [the] Defendant . . . to prosecute the claims
made in its Complaint.” (Docket Entry No. 5, at 2).

“Without this information, [Strike 3

Holdings] cannot serve [the] Defendant nor pursue this lawsuit and protect its copyrights.” (Id.).
For the reasons below, the court grants the motion for leave to serve Comcast Cable with
a Rule 45 subpoena.
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Under Federal Rule of Civil Procedure 26(d)(1), a party may seek discovery before the
parties have conferred, if permitted by court order. Fed. R. Civ. P. 26(d)(1). The Fifth Circuit has
not adopted a standard to determine when a party is entitled to expedited discovery, but district
courts within this circuit analyze factors including “(1) whether the plaintiff has made a prima
facie case of actionable harm; (2) the specificity of the discovery request; (3) the absence of
alternative means to obtain the subpoenaed information; (4) whether there is a central need for the
subpoenaed information to advance the claim; and (5) the user’s expectation of privacy.” Strike 3
Holdings, LLC v. Doe, 21-cv-243, 2021 WL 2258737, at *2 (E.D. Tex. June 3, 2021); see also
Well Go USA, Inc. v. Unknown Participants in Filesharing Swarm, No. 12-00963, 2012 WL
4387420, at *1 (S.D. Tex. Sept. 25, 2012). These factors favor a grant of expedited discovery in
this case.
To make a prima facie claim for copyright infringement, Strike 3 Holdings must show:
“(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are
original.” BWP Media USA, Inc. v. T&S Software Assocs., Inc., 852 F.3d 436, 439 (5th Cir. 2017)
(quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991)). Strike 3 Holdings has
provided evidence that it is the exclusive rights holder of the copyrighted works at issue. (Docket
Entry No. 5-1, at 4). The company alleges that the defendant used BitTorrent, a peer-to-peer file
sharing system, to copy and distribute 61 of its movies, without its consent. (Docket Entry No. 11, at 1–7).

Strike 3 Holdings has alleged the prima facie elements of a direct copyright

infringement claim and could withstand a motion to dismiss for failure to state a claim.
Strike 3 Holdings has identified the John Doe defendant with sufficient specificity.
“BitTorrent allows users to join together in ‘peer-to-peer’ networks that allow them to download
large files. . . . While downloading these files, users expose their IP addresses to one another.”

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Strike 3 Holdings, LLC v. Doe, 21-cv-1852, 2021 WL 1987383, at *1 (S.D.N.Y. May 18, 2021).
Strike 3 Holdings has created a proprietary “infringement detection system, named ‘VXN Scan,’”
to capture the IP addresses of users who illegally download and distribute its movies. (Docket
Entry No. 1, at 5). The VXN Scan system works, in part, by creating a “proprietary BitTorrent
client” that “emulates the behavior of a standard BitTorrent client” by “repeatedly download[ing]
data pieces from peers within the BitTorrent network which are distributing [Strike 3 Holdings’s]
movies.” (Docket Entry No. 5-1, at 11). The VXN Scan system then uses a “PCAP Recorder”
that records PCAPs—the “computer file containing captured or recorded data transmitted between
network devices.” (Id., at 12). The PCAP contains the IP address of the BitTorrent client that is
connecting with the proprietary BitTorrent client and sending infringed copies of Strike 3
Holdings’s movies. (Id.).
In this case, “VXN Scan recorded numerous BitTorrent computer transactions between the
system and IP address 73.6.6.123 in the form of PCAPs.” (Id., at 19). The VXN System then uses
a software called the “PCAP Analyzer,” which is connected to geolocation database “Maxmind
GeoIP2 Precision Services,” that “compiles information it receives from Internet Service Providers
. . . containing the city and state locations of the users of the ISPs and their respective IP addresses.”
(Id.). Through this process, Strike 3 Holdings determined that a BitTorrent user at IP address
73.6.6.123 had infringed “61 movies over an extended period of time.” (Docket Entry No. 1, at
2). An employee at Strike 3 Holdings confirmed that each of the digital media files downloaded
and distributed by this BitTorrent user was “a copy of one of Strike 3’s motion pictures.” (Docket
Entry No. 5-1, at 25). The company traced the user’s IP address “to a physical address located
within this District.” (Docket Entry No. 1, at 2). Using these procedures, Strike 3 Holdings has

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identified John Doe with “sufficient specificity” so as to assure the court that the defendant is real
and located in this district.
Through this process, the sole information that Strike 3 Holdings has been able to obtain
about the alleged infringer is his or her IP address. There are no other alternative means to obtain
the defendant’s name or address. “[T]here is no public registry of what IP addresses correspond
to which subscribers.” (Docket Entry No. 5, at 7). The company cannot learn the defendant’s
identity without the subpoenaed information, and cannot serve process on the defendant without
the subpoenaed information. The “Defendant’s [Internet Service Provider] Comcast Cable is the
only entity that can correlate the IP address to its subscriber and identify Defendant as the person
assigned the IP address 73.6.6.123 during the time of the alleged infringement.” (Docket Entry
No. 5-1, at 22). Strike 3 Holdings has demonstrated a need for the subpoenaed information to
advance the claim, and no alternative means to obtain that information.
Finally, the defendant lacks a reasonable expectation of privacy in information that he or
she voluntarily shared by downloading and distributing Strike 3 Holdings’s movies “through a
peer-to-peer network.” United States v. Weast, 811 F.3d 743, 747–48 (5th Cir. 2016). “Moreover,
there is no constitutional right—under the First Amendment or the right to privacy—to
anonymously engage in copyright infringement.” Malibu Media, LLC v. Doe, H-17-0485, 2017
WL 3394611, at *2 (S.D. Tex. Aug. 8, 2017).
The factors for granting expedited discovery are met. There are, however, some concerns
in granting a subpoena of this nature. First, the IP subscriber may not be the actual infringer. The
infringer could, for example, be the subscriber’s roommate. Second, “[a]n allegation that an
individual illegally downloaded adult motion pictures likely goes to matters of a sensitive and
highly personal nature, including one’s sexuality.” Strike 3 Holdings, LLC v. Doe, No. 17-cv-

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07051, 2018 WL 357287, at *3 (N.D. Cal. Jan. 10, 2018). These concerns can be cabined through
the following procedures, which the parties must follow:
1. Strike 3 Holdings may serve a Rule 45 subpoena on Comcast Cable to obtain only the
name and address of the individual associated with IP address 73.6.6.123. Strike 3
Holdings must attach a copy of this Order to the subpoena.
2. Comcast Cable will have 30 days from the date of service of the Rule 45 subpoena to
serve the identified Doe defendant with copies of the subpoena and this Order. (See 47
U.S.C. § 551(c)(2)(B) (“A cable operator may disclose such [personal identifying]
information if the disclosure is . . . made pursuant to a court order authorizing such
disclosure, if the subscriber is notified of such order by the person to whom the order
is directed.”). Comcast Cable may serve the defendant using reasonable means,
including written notice sent to the defendant’s last known address by either first-class
mail or overnight service.
3. Comcast Cable must confer with Strike 3 Holdings. Comcast Cable may not assess
any charge in advance of providing the information requested in the subpoena. If
Comcast Cable elects to charge for the costs of production, it must provide a billing
summary and cost report to Strike 3 Holdings. The court will resolve any disputes
between Comcast Cable and Strike 3 Holdings about the fees charged for the costs of
responding to the subpoena.
4. The Doe defendant has 60 days from the date of service of the Rule 45 subpoena and
this Order to file any motions with this court contesting the subpoena, as well as any
request to litigate this subpoena anonymously. Comcast Cable may not provide the
defendant’s identifying information to Strike 3 Holdings or anyone but the court before
the 60-day period has lapsed. If the defendant or Comcast Cable files a motion to quash
or modify the subpoena, Comcast Cable may not turn over any information to Strike 3
Holdings until this court rules on that motion.
5. If the 60-day period expires without any motion contesting the subpoena, Comcast
Cable will have 14 days to produce the subpoenaed information to Strike 3 Holdings.
6. Comcast Cable must take reasonable steps to preserve the subpoenaed information
pending the resolution of any timely filed motion to quash. Comcast Cable may file a
motion to raise any undue burden caused by this preservation obligation.
7. Strike 3 Holdings may use any information ultimately disclosed in response to a Rule
45 subpoena only to protect the rights it asserted in its complaint. The information
disclosed is limited to use by Strike 3 Holdings in this litigation and may not be
disclosed other than to counsel for the parties and the court.

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The motion is granted. Strike 3 Holdings may immediately serve a Rule 45 subpoena on
Comcast Cable, in accordance with the procedures set out above.

SIGNED on November 17, 2021, at Houston, Texas.
_______________________________
Lee H. Rosenthal
Chief United States District Judge

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