Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.93.49.244, No. 3:2023cv00263 - Document 8 (N.D. Cal. 2023)
Court Description: ORDER GRANTING 7 LEAVE TO ISSUE THIRD-PARTY SUBPOENA. Signed by Chief Judge Richard Seeborg on February 24, 2023. (rslc3, COURT STAFF) (Filed on 2/24/2023)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 STRIKE 3 HOLDINGS, LLC, Case No. 23-cv-00263-RS Plaintiff, 11 United States District Court Northern District of California v. ORDER GRANTING LEAVE TO ISSUE THIRD-PARTY SUBPOENA 12 13 14 JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 73.93.49.244, Defendant. 15 I. INTRODUCTION 16 17 Plaintiff Strike 3 Holdings, LLC (“Strike 3”), seeks a subpoena to unmask someone 18 allegedly sharing its copyrighted pornographic films. Strike 3 has determined Defendant’s Internet 19 Protocol (“IP”) address, but it cannot determine the account owner without a subpoena. An IP 20 address may be shared widely, but it has only one account owner. As noted in previous orders 21 concerning the same Plaintiff (repeated herein and cited below for the benefit of the Defendant 22 who may receive this Order), many have raised concerns that Strike 3 is effectively extorting 23 account owners through the many lawsuits it brings, because defendants are embarrassed into 24 settling — even if they are innocent. 25 Nonetheless, the law provides Strike 3 the right to issue a subpoena. To ensure no 26 prejudice to the possibly innocent account owner, courts routinely protect the identity of 27 defendants in these cases until, at least, further discovery reveals some information about them and 28 whether they are at all likely to be the perpetrator. Leave to issue the subpoena is granted with 1 these protective measures in place. Defendant can proceed anonymously until that individual can 2 assert a defense. Strike 3 must also fulfill its promise to propose confidentiality, and Defendant 3 must be informed of these measures. II. BACKGROUND1 4 Strike 3 is a successful producer of pornographic videos. Notwithstanding Plaintiff’s United States District Court Northern District of California 5 6 copyright protections, its videos are often distributed illegally online using file-sharing protocols, 7 such as BitTorrent. Using specialized software, Strike 3 identified the IP address of a BitTorrent 8 user who distributed thirty of its films without authorization. 9 Strike 3 filed suit against this unknown Defendant on January 18, 2023, but it cannot 10 proceed without a subpoena to the Internet Service Provider (“ISP”) associated with the IP address 11 for the name of the account owner. Strike 3 has tried obtaining the identity in other ways and 12 failed. However, it has determined that the IP address traces to somewhere in this district. ISPs 13 routinely delete this information after a certain time. Thus, Strike 3 filed an ex parte application 14 for leave to serve a third-party subpoena to the ISP before a Rule 26(f) conference, pursuant to 15 Rule 45 of the Federal Rules of Civil Procedure. Strike 3 is mindful of the controversy 16 surrounding its litigation practices and, to mitigate the risk of pressuring people into unjust 17 settlements, it claims it has a policy of entering into confidentiality agreements and “not seek[ing] 18 settlements unless initiated by a defendant.” Dkt. 7, at 3. III. LEGAL STANDARD 19 A court may authorize early discovery before the Rule 26(f) conference for the parties’ and 20 21 witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d). Courts in the Ninth 22 Circuit generally consider whether a plaintiff has shown “good cause” for early discovery. See, 23 e.g., Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275–77 (N.D. Cal. 2002). “Good 24 cause may be found where the need for expedited discovery, in consideration of the administration 25 26 27 28 1 The factual background is based on the allegations in the Complaint, which are taken as true for the purposes of this motion. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). ORDER GRANTING LEAVE TO ISSUE THIRD-PARTY SUBPOENA CASE NO. 23-cv-00263-RS 2 1 United States District Court Northern District of California 2 of justice, outweighs the prejudice to the responding party.” Id. at 276. In evaluating whether a plaintiff establishes good cause to learn the identity of a Doe 3 defendant through early discovery, courts examine whether the plaintiff: (1) identifies the Doe 4 defendant with sufficient specificity that the court can determine if the defendant is a real person 5 who can be sued in federal court; (2) recounts the steps taken to locate and identify the defendant; 6 (3) demonstrates the action can withstand a motion to dismiss; and (4) shows the discovery is 7 reasonably likely to lead to identifying information that will permit service of process. See 8 Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578–80 (N.D. Cal. 1999) (citations omitted). 9 “[W]here the identity of alleged defendants [is not] known prior to the filing of a complaint[,] the 10 plaintiff should be given an opportunity through discovery to identify the unknown defendants, 11 unless it is clear that discovery would not uncover the identities, or the complaint would be 12 dismissed on other grounds.” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (third 13 alteration in original) (quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). 14 IV. DISCUSSION 15 A. Strike 3’s Pattern of Litigation 16 Strike 3 has been labeled by some as a “copyright troll” that files extortive lawsuits. Strike 17 3 Holdings, LLC v. Doe, 351 F. Supp. 3d 160, 161 (D.D.C. 2018), rev’d and remanded, 964 F.3d 18 1203, 1205 (D.C. Cir. 2020). In its detractors’ view, it profits from “the nexus of antiquated 19 copyright laws, paralyzing social stigma, and unaffordable defense costs.” Ingenuity 13 LLC v. 20 Doe, No. 12-cv-8333-ODW (JCx), 2013 WL 1898633, at *1 (C.D. Cal. May. 6, 2013). They posit 21 that the scheme works like this: Strike 3 identifies thousands of IP addresses per year that 22 uploaded its copyrighted material. Strike 3, 351 F. Supp. 3d at 162 (summarizing many cases). It 23 then files thousands of functionally identical lawsuits (including many in this District) and 24 routinely seeks leave to subpoena the subscriber’s information from the ISP. See, e.g., Strike 3 25 Holdings, LLC v. Doe, No. 22-cv-08977-RS (N.D. Cal. Jan. 24, 2023); Strike 3 Holdings, LLC v. 26 Doe, No. 22-cv-05160-RS, 2022 WL 5007963 (N.D. Cal. Oct. 4, 2022); Strike 3 Holdings, LLC v. 27 Doe, No. 22-cv-05088-LB, 2022 WL 4467684 (N.D. Cal. Sept. 27, 2022); Strike 3 Holdings, LLC 28 ORDER GRANTING LEAVE TO ISSUE THIRD-PARTY SUBPOENA CASE NO. 23-cv-00263-RS 3 United States District Court Northern District of California 1 v. Doe, No. 22-cv-04577-MMC (LB), 2022 WL 4021841 (N.D. Cal. Sept. 2, 2022). When it 2 succeeds, the subscriber learns he or she is being sued for uploading pornography. To avoid 3 embarrassment, the subscriber usually settles for just less than the cost of defending the suit. Their 4 alternative is to pay high legal fees for a specialist in copyright law and hope the court lets them 5 proceed anonymously. If a defendant does put up any fight, the company usually drops the case. 6 See Strike 3, 351 F. Supp. 3d at 162 (“These serial litigants drop cases at the first sign of 7 resistance, preying on low-hanging fruit and staying one step ahead of any coordinated defense.”). 8 B. Strike 3 Is Entitled to the Requested Subpoena 9 While some may feel that Strike 3 is abusing the legal system, it is equally understandable 10 for Strike 3 to be concerned that its copyrights are being infringed. Ultimately, caselaw makes 11 clear it would be an abuse of discretion to deny Plaintiff leave for this subpoena. The Ninth Circuit 12 has not ruled on a request for a subpoena by Strike 3, but it has endorsed the general scheme of 13 limited discovery for copyright infringement. See Glacier Films (USA), Inc. v. Turchin, 896 F.3d 14 1033, 1036 (9th Cir. 2018). Strike 3 needs this third-party subpoena to ascertain Defendant’s 15 identity. Wakefield, 177 F.3d at 1163. Its request further satisfies the seescandy factors. See 185 16 F.R.D. at 578. 17 Further, even if one wanted to distinguish this case from the general copyright scheme, 18 controlling law prevents consideration of the natural avenues of doing so, for reasons the D.C. 19 Circuit outlined in a case involving a Strike 3 subpoena: it would be an abuse of discretion to 20 consider the nature of the material, the possibility the case will fail, or Strike 3’s pattern of 21 litigation. Strike 3, 964 F.3d at 1203. This leaves no way to distinguish this case from any other 22 unknown-infringer case. First, pornography is entitled to copyright protections just like any other 23 content. Jartech, Inc. v. Clancy, 666 F.2d 403, 405–06 (9th Cir. 1982). Second, Cobbler Nevada 24 does not provide a basis to deny the subpoena at this stage. That case held that being the account 25 holder of an infringing IP address does not even raise an inference of infringement, because many 26 people might have access to one such address. Cobbler Nev., LLC v. Gonzales, 901 F.3d 1142, 27 1145 (9th Cir. 2018). In fact, the plaintiff in that case was allowed both a subpoena and a 28 ORDER GRANTING LEAVE TO ISSUE THIRD-PARTY SUBPOENA CASE NO. 23-cv-00263-RS 4 United States District Court Northern District of California 1 deposition of the subscriber to determine details about the usage of the IP address. See id. Third, at 2 this stage, the truth of Strike 3’s allegations must be assumed, and all reasonable inferences must 3 be drawn in its favor. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1003 (9th Cir. 2018). 4 This is true despite criticism of Strike 3 and its counsel. Strike 3 Holdings, LLC v. Doe, No. C17- 5 1731 TSZ, 2020 WL 531996, at *5 (W.D. Wash. Feb. 3, 2020) (granting summary judgment 6 against Strike 3 and noting the assertion that the Doe defendant was the subscriber was “entirely 7 unsupported by the record,” id. n.5), aff’d, 849 Fed. App’x 183 (9th Cir. 2021). Thus, although 8 Strike 3’s pattern of litigation is appropriate for judicial notice, it cannot support a denial of the 9 request. See Fed. R. Evid. 201. 10 C. Protective Measures 11 Even if leave must be granted, the question of protective measures remains. Rule 26(c) 12 allows a court to grant a protective order if there is good cause. McCoy v. Sw. Airlines Co., Inc., 13 211 F.R.D. 381, 385 (C.D. Cal. 2002). Courts routinely impose conditions on the grant of these 14 subpoenas, such as requiring the subscriber’s name not be made public, and that court filings 15 discussing the identity must be redacted and sealed, at least until further discovery can be taken. 16 See, e.g., Strike 3 Holdings, LLC v. Doe, No. 19-cv-00160-EMC, 2019 WL 591459, at *3 (N.D. 17 Cal. Feb. 13, 2019); Strike 3 Holdings, LLC v. Doe, No. 18-cv-04993-KAW, 2019 WL 468816, at 18 *2 (N.D. Cal. Feb. 6, 2019); Strike 3 Holdings, LLC v. Doe, No. 18-cv-02637-MCE-CKD, 2019 19 WL 935390, at *2 (E.D. Cal. Feb. 26, 2019). Indeed, Strike 3 claims it welcomes protective 20 measures. This policy, along with not proposing settlements and only pursuing large-scale 21 offenders, ostensibly ensures justice is being done. 22 Strike 3’s policies are not as reassuring as it thinks. Large-scale infringement may logically 23 stem as often from one zealous user as it does from an IP address for a location with many users, 24 in which Strike 3’s case may be impossible. Not proposing settlement may suggest Strike 3 is 25 supremely confident in its case. Finally, Defendant might not be aware that he or she may ask for 26 anonymity. 27 28 To ensure Defendant is not unduly prejudiced, Plaintiff must attempt to ensure Defendant ORDER GRANTING LEAVE TO ISSUE THIRD-PARTY SUBPOENA CASE NO. 23-cv-00263-RS 5 1 knows he or she can proceed anonymously at the earliest possible opportunity, as ordered below. 2 The ISP must serve a copy of this order on Defendant, which would accomplish this purpose. 3 Strike 3 is also ordered to certify it has proposed a confidentiality agreement with Defendant. This 4 should pose no hardship given that Strike 3 claims it has a policy of entering into confidentiality 5 agreements anyway. V. CONCLUSION 6 1. Plaintiff has established that good cause exists to serve a third-party subpoena on 7 8 Comcast Cable (the “ISP”). Its motion is therefore granted. 2. Plaintiff may serve the ISP with a Rule 45 subpoena commanding the ISP to provide United States District Court Northern District of California 9 10 Plaintiff with the true name and address of the Defendant to whom the ISP assigned an IP address 11 as set forth in Exhibit A to the Complaint. Plaintiff shall attach a copy of this Order to any such 12 subpoena. 3. Plaintiff may also serve a Rule 45 subpoena in the same manner as above on any service 13 14 provider that is identified in response to a subpoena as a provider of Internet services to 15 Defendant; the same requirements laid out for Comcast Cable in this Order will also apply to any 16 follow-on orders pursuant hereto. 4. If the ISP qualifies as a “cable operator,” as defined by 47 U.S.C. § 522(5),2 then it shall 17 18 comply with 47 U.S.C. § 551(c)(2)(B)3 by sending a copy of this Order to Defendant. 19 5. Plaintiff shall also request the ISP forward a copy of this Order to the subscriber, 20 regardless of whether the ISP qualifies as a cable operator. If the ISP declines, Plaintiff shall serve 21 a copy of this Order on Defendant simultaneous to or before any other service or communication 22 23 24 25 26 27 28 “[T]he term ‘cable operator’ means any person or group of persons (A) who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.” 47 U.S.C. § 522(5). 2 “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[.]” 47 U.S.C. § 551(c)(2)(B). 3 ORDER GRANTING LEAVE TO ISSUE THIRD-PARTY SUBPOENA CASE NO. 23-cv-00263-RS 6 1 to Defendant. Plaintiff must file a copy of its request to the ISP on the docket. Alternatively to the 2 other requirements in this paragraph, Plaintiff may file an affidavit that it attests the ISP has 3 forwarded this order to Defendant before attempting to serve or communicate with Defendant. 4 5 served on the ISP for the purpose of protecting and enforcing Plaintiff’s rights as set forth in its 6 Complaint. Specifically, Plaintiff must not publicly disclose the information obtained based on 7 this subpoena without leave of the Court — at least until the Doe defendant has had an opportunity 8 to file a motion to proceed anonymously, or further discovery has been taken. All references to 9 Defendant’s identity must be redacted and filed under seal until further notice. 10 United States District Court Northern District of California 6. Plaintiff may only use the information disclosed in response to a Rule 45 subpoena 7. Plaintiff must first file an affidavit confirming it proposed confidentiality to Defendant, 11 as it has represented it would. This filing must contain the relevant communications concerning 12 any proposed agreement, e.g., copies of emails related to confidentiality, or descriptions of 13 conversations with Defendant. 14 8. Comcast Cable, and/or any other ISP that receives a subpoena pursuant to this Order, 15 must confer with Strike 3 and may not assess any charge in advance of providing the information 16 requested in the subpoena. The ISP that receives a subpoena and elects to charge for the costs of 17 production must provide a billing summary and cost reports that serve as a basis for such billing 18 summary and any costs claimed by the ISP. 19 9. Comcast Cable, and/or any other ISP that receives a subpoena pursuant to this Order, 20 must preserve any subpoenaed information pending the resolution of any timely filed motion to 21 dismiss. 22 23 IT IS SO ORDERED. 24 25 26 27 28 Dated: February 24, 2023 ______________________________________ RICHARD SEEBORG Chief United States District Judge ORDER GRANTING LEAVE TO ISSUE THIRD-PARTY SUBPOENA CASE NO. 23-cv-00263-RS 7
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