Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 24.6.63.42, No. 5:2023cv06685 - Document 8 (N.D. Cal. 2024)
Court Description: ORDER GRANTING 7 APPLICATION FOR LEAVE TO SERVE THIRD-PARTY SUBPOENA. Signed by Judge Edward J. Davila on 3/21/2024.(ejdlc2, COURT STAFF) (Filed on 3/21/2024)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 STRIKE 3 HOLDINGS, LLC, 8 Plaintiff, 9 v. 10 JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 24.6.63.42, United States District Court Northern District of California 11 12 Case No. 23-cv-06685-EJD ORDER GRANTING APPLICATION FOR LEAVE TO SERVE THIRDPARTY SUBPOENA Re: ECF No. 7 Defendant. 13 Plaintiff Strike 3 Holdings, LLC (“Strike 3”), filed this copyright infringement action 14 15 against an unknown individual (the “Doe Defendant”) who allegedly used BitTorrent to illegally 16 download and distribute Strike 3’s copyrighted adult films. See Compl., ECF No. 1. Strike 3 17 seeks a subpoena to compel third-party Comcast Cable to identify the Doe Defendant, who is 18 associated with the IP address 24.6.63.42, for service of process. See Ex Parte Appl. for Leave to 19 Serve Third-Party Subpoena (“Appl.”), ECF No. 7. 20 Based on Strike 3’s submissions, the Court GRANTS leave to serve a subpoena with 21 specific conditions provided below. Because many courts have raised concerns that Strike 3 could 22 be pursuing potentially innocent ISP account owners who are often embarrassed into early 23 settlements, the identity of the Doe Defendant SHALL be protected unless and until further order 24 by the Court. 25 I. BACKGROUND 26 Strike 3 owns the copyrights for several adult motion pictures that are associated with and 27 distributed through various adult websites. See Compl. ¶¶ 1–3, 43, ECF No. 1; see id. at Exh. A, 28 Case No.: 23-cv-06685-EJD ORDER GRANTING EX PARTE APPL. TO SERVE THIRD-PARTY SUBP. 1 United States District Court Northern District of California 1 ECF No. 1-1. Using a specialized infringement detection system it developed (the “VXN Scan 2 System”), Strike 3 discovered the IP address of the Doe Defendant who allegedly infringed upon 3 its copyrights. See Compl. ¶¶ 28–29. The Complaint alleges that the Doe Defendant illegally 4 downloaded and distributed 28 motion pictures copyrighted by Strike 3 by using BitTorrent, a 5 system designed to quickly distribute large files over the Internet. See id. ¶¶ 18, 29, 38; see id. at 6 Exh. A. 7 Strike 3 filed this action on December 29, 2023, asserting one claim of direct copyright 8 infringement and seeking an injunction and statutory damages. Id. ¶¶ 48–53. Strike 3 filed the 9 instant Application on January 11, 2024, seeking leave to serve a third-party subpoena on Comcast 10 Cable prior to a Rule 26(f) conference. See Appl. 11 II. LEGAL STANDARD 12 A court may authorize early discovery before the Rule 26(f) conference for the parties’ and 13 witnesses’ convenience and in the interests of justice. See Fed. R. Civ. P. 26(d). Courts within the 14 Ninth Circuit generally consider whether a plaintiff has shown “good cause.” See, e.g., IO Grp., 15 Inc. v. Does 1–65, No. 10–4377, 2010 WL 4055667, at *2 (N.D. Cal. Oct. 15, 2010); Semitool, 16 Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275–77 (N.D. Cal. 2002). “Good cause may be 17 found where the need for expedited discovery, in consideration of the administration of justice, 18 outweighs the prejudice to the responding party.” Semitool, 208 F.R.D. at 276. 19 20 21 22 In evaluating whether a plaintiff establishes good cause to learn the identity of a Doe defendant through early discovery, courts examine whether the plaintiff: (1) identifies the Doe defendant with sufficient specificity that the court can determine that the defendant is a real person who can be sued in federal court; 23 (2) recounts the steps taken to locate and identify the defendant; 24 (3) demonstrates that the action can withstand a motion to dismiss; and 25 (4) shows that the discovery is reasonably likely to lead to identifying information that will 26 permit service of process. 27 See Columbia Ins. Co. v. seescandy.com (“Seescandy.com”), 185 F.R.D. 573, 578–80 (N.D. Cal. 28 Case No.: 23-cv-06685-EJD ORDER GRANTING EX PARTE APPL. TO SERVE THIRD-PARTY SUBP. 2 United States District Court Northern District of California 1 1999) (citations omitted). “[W]here the identity of alleged defendants [is not] known prior to the 2 filing of a complaint[,] the plaintiff should be given an opportunity through discovery to identify 3 the unknown defendants, unless it is clear that discovery would not uncover the identities, or that 4 the complaint would be dismissed on other grounds.” Wakefield v. Thompson, 177 F.3d 1160, 5 1163 (9th Cir. 1999). 6 III. DISCUSSION Strike 3’s Litigation History 7 A. 8 As this Court has done in its prior orders, before turning to the merits of the application, 9 the Court first provides an overview of Strike 3’s litigation history as useful context for the Doe 10 Defendant or any other party who may receive this Order. See Strike 3 Holdings, LLC v. John 11 Doe Subscriber Assigned IP Address 73.231.214.39, No. 23-CV-05468-EJD, 2023 WL 8458262, 12 at *2 (N.D. Cal. Nov. 27, 2023); Strike 3 Holdings, LLC v. John Doe Subscriber Assigned IP 13 Address 174.160.76.56, No. 24-CV-00440-EJD, 2024 WL 950171, at *2 (N.D. Cal. Mar. 5, 2024). 14 Given the informational disparity and matrix of undesirable options facing an ISP subscriber 15 served with such a complaint as the one filed in this action, the Court hopes the following context 16 will reduce any prejudice that individual may face. 17 Strike 3 has filed thousands of similar lawsuits and requests to subpoena subscriber 18 information from ISPs, such as Comcast Cable. See, e.g., Strike 3 Holdings, LLC v. Doe, No. 23- 19 CV-04339-RS, 2023 WL 6542326, at *2 (N.D. Cal. Sept. 22, 2023) (collecting cases). At least 20 one federal judge has also openly characterized Strike 3 as a “copyright troll” that uses its 21 “swarms of lawyers [to] hound people who allegedly watch their content through BitTorrent.” 22 Strike 3 Holdings, LLC v. Doe, 351 F. Supp. 3d 160, 161–62 (D.D.C. 2018) (describing the 23 copyright troll’s strategy as “file a deluge of complaints; ask the court to compel disclosure of the 24 account holders; settle as many claims as possible; abandon the rest”), rev’d and remanded, 964 25 F.3d 1203 (D.C. Cir. 2020); see also, e.g., Strike 3 Holdings, LLC v. John Doe (73.225.38.130), 26 No. C17-1731, 2020 WL 531996, at *6 & n.6 (W.D. Wash. Feb. 3, 2020) (granting summary 27 judgment and attorney fees in favor of Doe defendant and against Strike 3 and noting that “[a] 28 Case No.: 23-cv-06685-EJD ORDER GRANTING EX PARTE APPL. TO SERVE THIRD-PARTY SUBP. 3 United States District Court Northern District of California 1 copyright troll’s success derives ‘not from the Copyright Act, but from the law of large 2 numbers’”) (citation omitted). 3 The Court recognizes that in practice, once subscribers are alerted that they are being sued 4 for uploading pornography, they may be pressured to quickly settle the matter to avoid the risk of 5 having their names publicly associated with the lawsuit or the costs of hiring an expensive 6 copyright legal specialist. See Strike 3 Holdings, LLC, 2023 WL 6542326, at *2; see also Strike 3 7 Holdings, 351 F. Supp. 3d at 162 (“[O]nce the ISP outs the subscriber, permitting them to be 8 served as the defendant, any future Google search of their name will turn-up associations with the 9 websites Vixen, Blacked, Tushy, and Blacked Raw.”). As a result, many innocent ISP subscribers 10 would be pressured to settle, even though several courts have observed that “ISP subscribers may 11 not be the individuals who infringed upon Strike 3’s copyright.” Strike 3 Holdings, LLC v. Doe 12 Subscriber Assigned IP Address 24.6.34.109, No. 23-CV-01977, 2023 WL 4003723, at *3 (N.D. 13 Cal. May 9, 2023) (collecting cases); see also Strike 3 Holdings, 351 F. Supp. 3d at 162 14 (“[I]nferring the person who pays the cable bill illegally downloaded a specific file is even less 15 trustworthy than inferring they watched a specific TV show.”). Moreover, if a defendant moves to 16 confront a “copyright troll” or exhibits any serious resistance, the company can simply drop the 17 case and avoid any unfavorable judicial rulings. See Strike 3 Holdings, 351 F. Supp. 3d at 162 18 (“These serial litigants drop cases at the first sign of resistance, preying on low-hanging fruit and 19 staying one step ahead of any coordinated defense.”). 20 B. 21 Turning to the merits of Strike 3’s ex parte application, the Court finds that Strike 3 has 22 Good Cause demonstrated good cause for this early discovery under the four Seescandy.com factors. 23 First, the Court finds that Strike 3 has identified the Doe Defendant with sufficient 24 specificity for the Court to determine that the Doe Defendant is a real person who may be sued in 25 federal court. The Complaint alleges that BitTorrent’s protocols require the activity of a human 26 user to share movies within the BitTorrent network. Compl. ¶¶ 18–27. Strike 3 also used “IP 27 address geolocation technology” offered by the company Maxmind Inc. to trace the IP address that 28 Case No.: 23-cv-06685-EJD ORDER GRANTING EX PARTE APPL. TO SERVE THIRD-PARTY SUBP. 4 1 Strike 3 procured—through its VXN Scan System—to a physical location within this district. Id. 2 ¶¶ 9, 29. Second, Strike 3 has described the steps it took to locate and identify the Doe Defendant. 3 4 See Appl. 10. In addition to the geolocation and infringement detection technology already 5 described, Strike 3 has attempted to associate the IP address with a defendant individual using 6 various web search tools and consultations with computer investigators and cyber security experts. 7 See id. 8 United States District Court Northern District of California 9 Third, Strike 3 has preliminarily demonstrated that its action can withstand a motion to dismiss. “Plaintiffs must satisfy two requirements to present a prima facie case of direct 10 infringement: (1) they must show ownership of the allegedly infringed material and (2) they must 11 demonstrate that the alleged infringers violate at least one exclusive right granted to copyright 12 holders under 17 U.S.C. § 106.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th 13 Cir. 2007). A copyright holder’s rights under § 106 include the exclusive rights to reproduce, 14 distribute, publicly display, perform, and create derivative works of the copyrighted work. See 17 15 U.S.C. § 106. Here, Strike 3 alleges that it owns the copyrights to adult movies that the Doe 16 Defendant downloaded, copied, and distributed without permission. See Compl. ¶¶ 29, 44, 46; see 17 id. at Exh. A. Accepting these allegations as true, the Court finds that the Complaint may 18 withstand a motion to dismiss. 19 Fourth and finally, Strike 3 has shown that the discovery it seeks is reasonably likely to 20 lead to identifying information that will permit service of process on the Doe Defendant. 21 Specifically, Strike 3 only seeks the name and address of the Doe Defendant and has represented 22 that the “only entity that can correlate the IP address to its subscriber and identify Defendant as the 23 person assigned the IP address is Defendant’s ISP.” Appl. 6 (citing BMG Rts. Mgmt. (US) LLC v. 24 Cox Commc’ns, Inc., 881 F.3d 293, 299 (4th Cir. 2018) (“[O]nly the ISP can match the IP address 25 to the subscriber’s identity.”)). 26 In sum, the Court finds that Strike 3 has satisfied all four Seescandy.com factors and 27 presented good cause for its requested expedited discovery. 28 Case No.: 23-cv-06685-EJD ORDER GRANTING EX PARTE APPL. TO SERVE THIRD-PARTY SUBP. 5 United States District Court Northern District of California 1 C. Protective Order 2 Even though Strike 3 is entitled to a pre-discovery subpoena, the Court retains authority 3 under Federal Rule of Civil Procedure 26(c) to grant a sua sponte protective order for good cause. 4 See, e.g., McCoy v. Sw. Airlines Co., 211 F.R.D. 381, 385 (C.D. Cal. 2002); Fed. R. Civ. P. 26(c). 5 In this case, the Court finds that there is good cause to implement limited protective measures to 6 shield a potentially innocent and unwitting ISP subscriber from undue prejudice. Strike 3 does not 7 oppose establishing procedural safeguards to respect privacy interests. See Appl. 3, 12–13. 8 Consistent with the protective measures undertaken by many other courts in this district 9 and its own prior orders, the Court will employ procedures to treat as confidential any personal 10 information regarding the Doe Defendant that Comcast Cable produces to Strike 3. The Court 11 will also permit and consider any request by the Doe Defendant to continue to proceed 12 anonymously under a “Doe” pseudonym. 13 IV. 14 15 CONCLUSION Based on the foregoing, the Court GRANTS Strike 3’s Ex Parte Application with respect to Defendant Doe, Subscriber Assigned IP Address 24.6.63.42, as follows: 16 1. Strike 3 MAY serve a Rule 45 subpoena on Comcast Cable (“ISP”), commanding the 17 ISP to provide Strike 3 with the true name and address of the Doe Defendant to whom 18 the ISP assigned an IP address as set forth on Exhibit A to the Complaint. Strike 3 19 SHALL attach a copy of this Order to any such subpoena. 20 a. Strike 3 MAY serve a Rule 45 subpoena in the same manner as above on any 21 service provider that is identified in response to a subpoena as a provider of 22 Internet services to the Doe Defendant. 23 b. If the ISP qualifies as a “cable operator” per 47 U.S.C. § 522(5), then it shall 24 comply with 47 U.S.C. § 551(c)(2)(B) by sending a copy of this Order to the Doe 25 Defendant. 26 27 28 2. Within thirty (30) days of being served by Strike 3, the ISP SHALL serve the Doe Defendant subscriber assigned the IP address 24.6.63.42 with a copy of the subpoena Case No.: 23-cv-06685-EJD ORDER GRANTING EX PARTE APPL. TO SERVE THIRD-PARTY SUBP. 6 United States District Court Northern District of California 1 and this Order. 2 3. Within thirty (30) days after the Doe Defendant has been served with the subpoena and 3 this Order, the Doe Defendant MAY file a motion to contest the subpoena, including a 4 motion to quash or modify the subpoena. The Doe Defendant MAY appear and 5 proceed before this Court under a pseudonym by requesting that their personal 6 identifying information be filed under seal. 7 a. If the Doe Defendant does not contest the subpoena within thirty days, the ISP may 8 produce the information responsive to Strike 3’s subpoena within ten (10) days. 9 4. Strike 3 MAY only use the information disclosed in response to its subpoena for the 10 purpose of protecting and enforcing its rights as set forth in the Complaint. Strike 3 11 MAY NOT publicly disclose the information obtained from its subpoena without leave 12 of this Court. Any reference to the Doe Defendant’s identity SHALL be redacted and 13 filed under seal until further notice. 14 5. Comcast Cable or any other ISP that receives a subpoena pursuant to this Order 15 SHALL confer with Strike 3 and MAY NOT assess any charge in advance of 16 providing the information requested in the subpoena. The ISP that receives a subpoena 17 and elects to charge for the costs of production must provide a billing summary and 18 cost reports that serve as a basis for the billing summary and costs claimed by the ISP. 19 6. Comcast Cable or any other ISP that receives a subpoena pursuant to this Order 20 SHALL preserve any subpoenaed information pending the resolution of any timely 21 filed motion to dismiss. 22 23 24 IT IS SO ORDERED. Dated: March 21, 2024 25 26 27 28 EDWARD J. DAVILA United States District Judge Case No.: 23-cv-06685-EJD ORDER GRANTING EX PARTE APPL. TO SERVE THIRD-PARTY SUBP. 7 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No.: 23-cv-06685-EJD ORDER GRANTING EX PARTE APPL. TO SERVE THIRD-PARTY SUBP. 8
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