Strike 3 Holdings LLC v. Doe

Filing 11

ORDER signed by Judge J P Stadtmueller on 2/6/2024 GRANTING on the terms set forth #6 Plaintiff's Motion for Leave to Serve Third Party Subpoena Prior to Fed R Civ P 26(f) Conference. Within 45 days, Plaintiff to FILE a report as to the status of service of the subpoena. See Order. (cc: all counsel)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
STRIKE 3 HOLDINGS, LLC,
Plaintiff,

Case No. 24-CV-105-JPS

v.
JOHN DOE a/k/a SUBSCRIBER
ASSIGNED IP ADDRESS
147.219.195.147,

ORDER

Defendant.
Plaintiff Strike 3 Holdings, LLC (“Plaintiff”) owns adult motion
pictures that it distributes through paid subscription-based websites,
licenses to broadcasters, or sells on DVD. ECF No. 1 at 3. Using its
infringement detection system, VXN Scan, Plaintiff learned that Defendant
John Doe a/k/a Subscriber Assigned IP Address 147.219.195.147 (“John
Doe”) downloaded and distributed Plaintiff’s copyrighted adult motion
pictures using BitTorrent without Plaintiff’s authorization. Id. at 5. Plaintiff
claims that John Doe has been recorded infringing 24 of its adult motion
pictures over an extended period of time. Id. at 2.1 Plaintiff does not know
John Doe’s identity and only learned his IP address using geolocation
technology, which also traced John Doe’s IP address to this District. Id.
Plaintiff asserts that John Doe’s Internet Service Provider (“ISP”), Spectrum,
can identify John Doe through his IP address. Id.

Plaintiff “only files strong cases against extreme infringers,” who are
categorized as “large scale unauthorized distributors of [Plaintiff’s] content.” ECF
No. 7 at 3–4.
1

Before the Court is Plaintiff’s motion for leave to serve a third-party
subpoena on Spectrum in order to learn John Doe’s identity, investigate
John Doe’s role in the infringement, and effectuate service. ECF No. 6; ECF
No. 7 at 2. Plaintiff so moves due to the Federal Rules of Civil Procedure’s
express prohibition of “seek[ing] discovery from any source before the
parties have conferred as required by Rule 26(f), except . . . when authorized
. . . by court order.” Fed. R. Civ. P. 26(d)(1); ECF No. 7 at 4–5.
The prevailing view in this Circuit is that the movant must
demonstrate “good cause for the request.” Kohler Co. v. Nulka Grp. Storefront
on www.amazon.com, No. 23-CV-0372-BHL, 2023 WL 2919831, at *1 (E.D.
Wis. Mar. 23, 2023) (quoting Dallas Buyers Club, LLC v. Does 1-26, No. 14-C360, 2014 WL 1612251, at *1 (E.D. Wis. Apr. 22, 2014)); see also Wuluvarana v.
Does, No. 22-CV-982-PP, 2023 WL 183874, at *3 (E.D. Wis. Jan. 13, 2023)
(same) (collecting cases). To assess whether the movant has shown good
cause, courts “generally evaluate ‘the entirety of the record to date and the
reasonableness of the request in light of all the surrounding
circumstances.’” Kohler Co., 2023 WL 2919831, at *1 (quoting Dallas Buyers
Club, LLC, 2014 WL 1612251, at *1). Factors pertinent to the analysis include
(1) the concreteness of the 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 of privacy.
Malibu Media, LLC v. Doe, No. 18 C 5792, 2019 WL 7876473, at *2 (N.D. Ill.
Jan. 2, 2019) (quoting Arista Records, LLC v. Doe 3, 604 F.3d 110, 119 (2d Cir.
2010)).

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In this case, Plaintiff has shown good cause for its request. First, as
to the first factor, “[i]n order to state a claim for copyright infringement, a
plaintiff must plausibly allege that: (1) the plaintiff owns a valid copyright;
and (2) the defendant copied ‘constituent elements of the work that are
original.’” Pers. Keepsakes, Inc. v. Personalizationmall.com, Inc., 975 F. Supp.
2d 920, 923 (N.D. Ill. 2013) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340, 361 (1991)). Plaintiff claims that it owns the adult motion
pictures at issue and that John Doe downloaded and distributed them
without Plaintiff’s authorization. See generally ECF No. 1. This states a prima
facie claim for copyright infringement. See Malibu Media, LLC v. Doe, No. 14CV-0932, 2015 WL 2451926, at *2 (E.D. Wis. May 21, 2015) (allegations that
subscriber illegally downloaded and distributed copyrighted materials
sufficient at pleadings stage).
Plaintiff represents that the subpoena will be limited and will seek
only “concrete and narrow information: the name and address of the
subscriber associated with [Doe Defendant’s] IP address.” ECF No. 7 at 7
(quoting John Wiley & Sons, Inc. v. John Doe Nos. 1–30, 284 F.R.D. 185, 190
(S.D.N.Y. 2012)). Plaintiff also asserts that there is no other method to obtain
this information and that it is necessary to move the litigation forward. Id.
at 7–8. The Court agrees. See Kohler Co., 2023 WL 2919831, at *2 (granting
motion to serve subpoena prior to Rule 26(f) conference because “[t]his case
cannot move forward unless the defendants’ true identities are ascertained,
and a subpoena appears to be the only means by which this might be
accomplished.”); see also Pac. Century Int'l, Ltd. v. Does 1–37, 282 F.R.D. 189,
192 (N.D. Ill. 2012) (explaining ubiquity of serving subpoena on ISPs “to
obtain the identifying information” for IP addresses).

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Turning to the final factor, John Doe’s privacy interest is “minimal at
best.” Sunlust Pictures, LLC v. Does 1–75, No. 12 C 1546, 2012 WL 3717768,
at *2 (N.D. Ill. Aug. 27, 2012) (quoting Malibu Media, LLC v. Does 1–25, No.
12–362, 2012 WL 2367555, *2 (S.D. Cal. June 21, 2012)). “[B]ecause internet
subscribers must convey their identity and other information to an ISP in
order to establish an account, they do ‘not have a reasonable expectation of
privacy in their subscriber information.’” Hard Drive Prods. v. Does 1–48, No.
11 CV 9062, 2012 WL 2196038, at *4 (N.D. Ill. June 14, 2012) (quoting First
Time Videos, LLC v. Does 1-500, 276 F.R.D. 241, 249 (N.D. Ill. 2011) and Boy
Racer, Inc. v. John Does 1–34, No. 11-23035, at *4 (S.D. Fla. May 1, 2012)); see
also Malibu Media, LLC, 2019 WL 7876473, at *1 n.1 (“[T]he . . . privacy
interest inherent in linking Doe’s IP address to his personal identity [is] . . .
minimal, seeing that the subscriber already disclosed this information to the
ISP.”) (citing Venice PI, LLC v. Doe 1, No. 2:17-CV-285-JVB-JEM, 2018 WL
1566813, at *2 (N.D. Ind. Mar. 30, 2018); Arista Records, LLC, 604 F.3d at 118;
and United States v. Perrine, 518 F.3d 1196, 1204–05 (10th Cir. 2008)). Nor
would the subpoena violate John Doe’s First Amendment right to free
speech, which “argument is routinely advanced in cases similar to this one,
and . . . has consistently been rejected.” First Time Videos, LLC v. Does 1–76,
276 F.R.D. 254, 256 (N.D. Ill. 2011) (collecting cases). Therefore, Plaintiff’s
motion will be granted as to Spectrum and on the terms set forth herein.
Finally, to the extent Plaintiff requests a protective order, ECF No. 7
at 9, the Court will not fashion such an order from whole cloth. In this
branch of the Court, litigants must prepare and submit a proposed
protective order, preferably using the form order appended to the Local
Rules. More importantly, litigants must request entry of a protective order
via motion and cite legal authority in support of that request. Such a motion
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would best be made after John Doe is identified and appears in the action
so that the parties may meet and confer on proposed terms. In addition to
its unilateral nature, the request is puzzling given that the court declined to
enter a protective order in the case that Plaintiff cites for support, though
the court did allow the Doe defendant to proceed anonymously. See Malibu
Media, LLC, 2015 WL 2451926, at *3.
Accordingly,
IT IS ORDERED that Plaintiff Strike 3 Holdings, LLC’s motion for
leave to serve a third-party subpoena prior to a Federal Rule of Civil
Procedure 26(f) conference, ECF No. 6, be and the same is hereby
GRANTED as to the third-party and on the terms set forth herein; and
IT IS FURTHER ORDERED that Plaintiff Strike 3 Holdings, LLC
FILE a report as to the status of service of the subpoena within forty-five
(45) days of this Order.
Dated at Milwaukee, Wisconsin, this 6th day of February, 2024.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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