Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 98.35.95.254

[7] 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA [11] STRIKE 3 HOLDINGS, LLC, Case Number: 3:25-cv-04747-AMO [12] Plaintiff, ORDER GRANTING APPLICATION 13 FOR LEAVE TO FILE THIRD PARTY vs. SUBPOENA [14] JOHN DOE subscriber assigned IP address 15 98.35.95.254, 16 Defendant. [18] Before the Court is Plaintiff Strike 3 Holdings, LLC’s (“Strike 3”) Ex Parte Application [19] for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference. Strike 3 seeks a [20] subpoena to compel non-party Comcast Cable Communications, LLC to identify the unknown [21] individual associated with the IP address 98.35.95.254. Based on Strike 3’s submissions, the [22] Court GRANTS leave to serve a subpoena with specific conditions provided below. Because [23] many courts have raised concerns that Strike 3 could be pursuing potentially innocent ISP account [24] owners who are often embarrassed into early settlements, the identity of the Doe Defendant [25] SHALL be protected unless and until further order by the Court. [1] 1 I. BACKGROUND 2 Strike 3 owns the copyrights for several adult motion pictures that are associated with and 3 distributed through various adult websites. Compl. ¶¶ 1-3, ECF 1. Using a specialized 4 infringement detection system it developed, Strike 3 discovered the IP address of the Doe 5 Defendant who allegedly infringed upon its copyrights. Id. ¶¶ 28-29. Specifically, the Complaint 6 alleges that the Defendant used BitTorrent’s file network to illegally download and distribute 7 about 65 media files of Strike 3’s copyrighted material. Id. ¶¶ 29, 38; see also id., Ex.A. 8 On June 5, 2025, Strike 3 filed the Complaint in this case, asserting one claim of direct 9 copyright infringement and seeking an injunction and statutory damages. Id. at 7-8. 10 II. LEGAL STANDARD 11 A court may authorize early discovery before the Rule 26(f) conference for the parties’ and 12 witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d). Courts within the 13 Ninth Circuit generally consider whether a plaintiff has shown “good cause” in support of early 14 discovery. See, e.g., 10 Grp., Inc. v. Does 1-65, 2010 WL 4055667 , at *2 (N.D. Cal. Oct. 15, 15 2010); Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275-77 (N.D. Cal. 2002). 16 “Good cause may be found where the need for expedited discovery, in consideration of the 17 administration of justice, outweighs the prejudice to the responding party.” Semitool, 208 F.R.D. 18 at 276 . 19 ln evaluating whether a plaintiff establishes good cause to learn the identity of a Doe 20 defendant through early discovery, courts examine whether the plaintiff: (1) identifies the Doe 21 defendant with sufficient specificity that the court can determine that the defendant is a real person 22 who can be sued in federal court; (2) recounts the steps taken to locate and identify the defendant; 23 (3) demonstrates that the action can withstand a motion to dismiss; and (4) shows that the 24 discovery is reasonably likely to lead to identifying information that will permit service of 25 process. Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999) (citations 26 omitted). “[W]here the identity of alleged defendants [is not] known prior to the filing of a [2] 1 complaint[,] the plaintiff should be given an opportunity through discovery to identify the 2 unknown defendants, unless it is clear that discovery would not uncover the identities, or that the 3 complaint would be dismissed on other grounds.” Wakefield v. Thompson, 177 F.3d 1160 , 1163 4 (9th Cir. 1999). 5 III. DISCUSSION 6 A. Strike 3’s Litigation History 7 As some courts in this District have done, before turning to the merits of the application, 8 the Court believes that an overview of Strike 3’s litigation history would provide useful context 9 for the Doe Defendant or any other party who may receive this Order. See, e.g., Strike 3 Holdings, 10 LLC v. John Doe Subscriber Assigned IP Address 98.47.46.165, No. 24-CV-00989-EJD, 2024 11 WL 1354465 , at *2 (N.D. Cal. Mar. 29, 2024). Especially given the informational disparity and 12 matrix of undesirable options facing an ISP subscriber served with such a complaint, this context 13 will hopefully reduce the prejudice that individual may face. 14 Strike 3 has filed thousands of similar lawsuits and requests to subpoena subscriber 15 information from ISPs, such as Comcast Cable Communications, LLC. See, e.g., Strike 3 16 Holdings, LLC v. Doe, No. 23-CV-04339-RS, 2023 WL 6542326 , at *2 (N.D. Cal. Sept. 22, 2023) 17 (collecting cases). At least one federal judge has also openly characterized Strike 3 as a “copyright 18 troll” that uses its “swarms of lawyers [to] hound people who allegedly watch their content 19 through BitTorrent.” Strike 3 Holdings, LLC v. Doe, 351 F. Supp. 3d 160, 161-62 (D.D.C. 2018) 20 (describing the copyright troll’s strategy as “file a deluge of complaints; ask the court to compel 21 disclosure of the account holders; settle as many claims as possible; abandon the rest”), rev’d and 22 remanded, 964 F.3d 1203 (D.C. Cir. 2020). 23 In practice, once subscribers are alerted that they are being sued for uploading 24 pornography, they may be pressured to quickly settle the matter to avoid the risk of having their 25 names publicly associated with the lawsuit or the costs of hiring an expensive copyright legal 26 specialist. See Strike 3 Holdings, LLC, 2023 WL 6542326 , at *2; see also Strike 3 Holdings, 351 [3] 1 F. Supp. 3d at 162 (“[O]nce the ISP outs the subscriber, permitting them to be served as the 2 defendant, any future Google search of their name will tum-up associations with the websites 3 Vixen, Blacked, Tushy, and Blacked Raw.”). As a result, many innocent ISP subscribers would be 4 pressured to settle, even though several courts have observed that “ISP subscribers may not be 5 the individuals who infringed upon Strike 3’s copyright.” Strike 3 Holdings, LLC v. Doe, No. 6 3:23-CV-01977-LB, 2023 WL 4003723 , at *3 (N.D. Cal. May 9, 2023) (collecting cases); see 7 also Strike 3 Holdings, 351 F. Supp. 3d at 162 (“[I]nferring the person who pays the cable bill 8 illegally downloaded a specific file is even less trustworthy than inferring they watched a specific 9 TV show.”). Moreover, if a defendant moves to confront a “copyright troll” or exhibits any serious 10 resistance, the company can simply drop the case and avoid any unfavorable judicial rulings. See 11 Strike 3 Holdings, 351 F. Supp. 3d at 162 (“These serial litigants drop cases at the first sign of 12 resistance, preying on low-hanging fruit and staying one step ahead of any coordinated defense.”). 13 B. Good Cause 14 Turning to the merits of Strike 3’s ex parte application, the Court finds that Strike 3 has 15 demonstrated good cause for this early discovery under the four seescandy.com factors. See 185 16 F.R.D. at 578-80. 17 First, the Court finds that Strike 3 has identified the Doe Defendant with sufficient 18 specificity for the Court to determine that the Doe Defendant is a real person who may be sued in 19 federal court. The Complaint alleges that BitTorrent’s protocols require the activity of a human 20 user to share movies within the BitTorrent network. Compl. ¶¶ 18-27. Strike 3 also used Maxmind 21 geolocation technology to trace the IP address it procured through its VXN Scan detection 22 software to a geographic location within this district. Id. ¶ 9. 23 Second, Strike 3 has recounted the steps it took to locate and identify the Doe Defendant. 24 ln addition to the geolocation and infringement detection technology described immediately 25 above, Strike 3 has attempted to associate the IP address with a defendant individual using various [4] 1 web search tools and consultations with computer investigators and cyber security consultants. 2 Appl. 10. 3 Third, Strike 3 has preliminarily demonstrated that its action can withstand a motion to 4 dismiss. “Plaintiffs must satisfy two requirements to present a prima facie case of direct 5 infringement: (1) they must show ownership of the allegedly infringed material and (2) they must 6 demonstrate that the alleged infringers violate at least one exclusive right granted to copyright 7 holders under 17 U.S.C. § 106 .” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th 8 Cir. 2007). A copyright holder’s rights under Section 106 include the exclusive rights to 9 reproduce, distribute, publicly display, perform, and create derivative works of the copyrighted 10 work. 17 U.S.C. § 106 . Here, Strike 3 alleges that it owns the copyrights to adult movies that the 11 Doe Defendant downloaded, copied, and distributed without permission. Compl. ¶¶ 29, 44. 12 Accepting these allegations as true, the Court finds that the Complaint may withstand a motion 13 to dismiss. 14 Finally, Strike 3 has shown that the discovery it seeks is reasonably likely to lead to 15 identifying information that will permit service of process on the Doe Defendant. Specifically, 16 Strike 3 seeks the name and address of the Doe Defendant and has represented that the “only 17 entity that can correlate the IP address to its subscriber and identify Defendant as the person 18 assigned the IP address is Defendant’ s ISP.” Appl. 6 (citing BMG Rts. Mgmt. (US) LLC v. Cox 19 Commc’ns, Inc., 881 F.3d 293,299 (4th Cir. 2018) (“[O]nly the ISP can match the IP address to 20 the subscriber’s identity.”)). 21 In sum, the Court finds that Strike 3 has satisfied all four seescandy.com factors and 22 presented good cause for its requested expedited discovery. 23 C. Protective Order 24 Even though Strike 3 is entitled to a pre-discovery subpoena, the Court retains authority 25 under Federal Rule of Civil Procedure 26(c) to grant a sua sponte protective order for good cause. 26 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] 1 In this case, the Court finds that there is good cause to implement limited protective measures to 2 shield a potential innocent and unwitting ISP subscriber from undue prejudice. Strike 3 does not 3 oppose establishing procedural safeguards to respect privacy interests. Appl. 12-13. 4 Consistent with the protective measures undertaken by many other courts in this district, 5 the Court will employ procedures to treat as confidential any personal information regarding the 6 Doe Defendant that Comcast Cable Communications, LLC produces to Strike 3. The Court will 7 also permit and consider any request by the Doe Defendant to proceed anonymously under a 8 pseudonym. 9 IV. CONCLUSION 10 Based on the foregoing, the Court GRANTS Strike 3s Ex Parte Application with respect 11 to Defendant Doe, Subscriber Assigned IP Address 98.35.95.254, as follows: 12 1. Within 21 days of this Order, Strike 3 MAY serve a Rule 45 subpoena on Comcast 13 Cable Communications, LLC (“ISP”), commanding the ISP to provide Strike 3 with the true name 14 and address of the Defendant to whom the ISP assigned an IP address as set forth on Exhibit A to 15 the Complaint. Strike 3 SHALL attach a copy of this Order to any such subpoena. 16 a. Strike 3 MAY serve a Rule 45 subpoena in the same manner as above on any 17 service provider that is identified in response to a subpoena as a provider of 18 Internet services to the Defendant. 19 b. If the ISP qualifies as a “cable operator” per 47 U.S.C. § 522 (5), then it shall 20 comply with 47 U.S.C. § 551 (c)(2)(B) by sending a copy of this Order to 21 Defendant. 22 2. Within thirty (30) days of being served by Strike 3, the ISP SHALL serve the Doe 23 Defendant subscriber assigned the IP address 98.35.95.254 with a copy of the subpoena and this 24 Order. 25 3. Within thirty (30) days after he or she has been served with the subpoena and this 26 Order, the Doe Defendant MAY file a motion to contest the subpoena, including a motion to [6] 1]| quash or modify the subpoena. The Doe Defendant MAY appear and proceed before this Court under a pseudonym by requesting that their personal identifying information be filed under seal. 3 c. If the Doe Defendant does not contest the subpoena within thirty days, the ISP 4 may produce the information responsive to Strike 3’s subpoena within ten (10) 5 days. 6 4. Strike 3 MAY only use the information disclosed in response to its subpoena for 7|| the purpose of protecting and enforcing its rights as set forth in the Complaint. Strike 3 MAY 8|| NOT publicly disclose the information obtained from its subpoena without leave of this Court. 9|| All references to the Doe Defendant’s identity SHALL be redacted and filed under seal until 10 || further notice. 11 5. Comcast Cable Communications, LLC or any other ISP that receives a subpoena 12 || pursuant to this Order SHALL confer with Strike 3 and MAY NOT assess any charge in advance of providing the information requested in the subpoena. The ISP that receives a subpoena and 14}| elects to charge for the costs of production must provide a billing summary and cost reports that 15 || serve as a basis for the billing summary and costs claimed by the ISP. 16 6. Comcast Cable Communications, LLC or any other ISP that receives a subpoena 17]| pursuant to this Order SHALL preserve any subpoenaed information pending the resolution of 18 || any timely filed motion to dismiss. IT IS SOORDERED. Dated: June 18, 2025 nace Mite 22 ARACELI MARTINEZ-OLGUIN 23 United States District Judge [28] [Proposed] Order on Ex-Parte Application for Leave to Serve Third-Party Subpoena Prior to a Rule 26(f) Conference