1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STRIKE 3 HOLDINGS, LLC, Case No. 24-cv-00990-AMO

8 Plaintiff,

ORDER GRANTING APPLICATION

9 v. FOR LEAVE TO FILE THIRD PARTY

SUBPOENA

10 JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 174.160.255.156, Re: Dkt. No. 8 11 Defendant.

12 13 Before the Court is Plaintiff Strike 3 Holdings, LLC’s (“Strike 3”) Ex Parte Application for 14 Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference. ECF 8. Strike 3 seeks a 15 subpoena to compel non-party Comcast Cable to identify the unknown individual associated with 16 the IP address 174.160.255.156. Based on Strike 3’s submissions, the Court GRANTS leave to 17 serve a subpoena with specific conditions provided below. Because many courts have raised 18 concerns that Strike 3 could be pursuing potentially innocent ISP account owners who are often 19 embarrassed into early settlements, the identity of the Doe Defendant SHALL be protected unless 20 and until further order by the Court. 21 I. BACKGROUND 22 Strike 3 owns the copyrights for several adult motion pictures that are associated with and 23 distributed through various adult websites. Compl. ¶¶ 1-3, ECF 1. Using a specialized 24 infringement detection system it developed, Strike 3 discovered the IP address of the Doe 25 Defendant who allegedly infringed upon its copyrights. Id. ¶¶ 28-29. Specifically, the Complaint 26 alleges that the Defendant used BitTorrent’s file network to illegally download and distribute 27 about twenty-four (24) media files of Strike 3’s copyrighted material. Id. ¶¶ 29, 38; see also id., 1 On February 20, 2024, Strike 3 filed the Complaint in this case, asserting one claim of 2 direct copyright infringement and seeking an injunction and statutory damages. Id. at 7-8. 3 II. LEGAL STANDARD 4 A court may authorize early discovery before the Rule 26(f) conference for the parties’ and 5 witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d). Courts within the 6 Ninth Circuit generally consider whether a plaintiff has shown “good cause” in support of early 7 discovery. See, e.g., IO Grp., Inc. v. Does 1-65, 2010 WL 4055667, at *2 (N.D. Cal. Oct. 15, 8 2010); Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275-77 (N.D. Cal. 2002). 9 “Good cause may be found where the need for expedited discovery, in consideration of the 10 administration of justice, outweighs the prejudice to the responding party.” Semitool, 208 F.R.D. 11 at 276. 12 In evaluating whether a plaintiff establishes good cause to learn the identity of a Doe 13 defendant through early discovery, courts examine whether the plaintiff: (1) identifies the Doe 14 defendant with sufficient specificity that the court can determine that the defendant is a real person 15 who can be sued in federal court; (2) recounts the steps taken to locate and identify the defendant; 16 (3) demonstrates that the action can withstand a motion to dismiss; and (4) shows that the 17 discovery is reasonably likely to lead to identifying information that will permit service of process. 18 Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999) (citations omitted). 19 “[W]here the identity of alleged defendants [is not] known prior to the filing of a complaint[,] the 20 plaintiff should be given an opportunity through discovery to identify the unknown defendants, 21 unless it is clear that discovery would not uncover the identities, or that the complaint would be 22 dismissed on other grounds.” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). 23 III. DISCUSSION 24 A. Strike 3’s Litigation History 25 As some courts in this District have done, before turning to the merits of the application, 26 the Court believes that an overview of Strike 3’s litigation history would provide useful context 27 for the Doe Defendant or any other party who may receive this Order. See, e.g., Strike 3 Holdings, 1 1354465, at *2 (N.D. Cal. Mar. 29, 2024). Especially given the informational disparity and matrix 2 of undesirable options facing an ISP subscriber served with such a complaint, this context will 3 hopefully reduce the prejudice that individual may face. 4 Strike 3 has filed thousands of similar lawsuits and requests to subpoena subscriber 5 information from ISPs, such as Comcast Cable. See, e.g., Strike 3 Holdings, LLC v. Doe, No. 23- 6 CV-04339-RS, 2023 WL 6542326, at *2 (N.D. Cal. Sept. 22, 2023) (collecting cases). At least 7 one federal judge has also openly characterized Strike 3 as a “copyright troll” that uses its 8 “swarms of lawyers [to] hound people who allegedly watch their content through BitTorrent.” 9 Strike 3 Holdings, LLC v. Doe, 351 F. Supp. 3d 160, 161-62 (D.D.C. 2018) (describing the 10 copyright troll’s strategy as “file a deluge of complaints; ask the court to compel disclosure of the 11 account holders; settle as many claims as possible; abandon the rest”), rev’d and remanded, 964 12 F.3d 1203 (D.C. Cir. 2020). 13 In practice, once subscribers are alerted that they are being sued for uploading 14 pornography, they may be pressured to quickly settle the matter to avoid the risk of having their 15 names publicly associated with the lawsuit or the costs of hiring an expensive copyright legal 16 specialist. See Strike 3 Holdings, LLC, 2023 WL 6542326, at *2; see also Strike 3 Holdings, 351 17 F. Supp. 3d at 162 (“[O]nce the ISP outs the subscriber, permitting them to be served as the 18 defendant, any future Google search of their name will turn-up associations with the websites 19 Vixen, Blacked, Tushy, and Blacked Raw.”). As a result, many innocent ISP subscribers would 20 be pressured to settle, even though several courts have observed that “ISP subscribers may not be 21 the individuals who infringed upon Strike 3’s copyright.” Strike 3 Holdings, LLC v. Doe, No. 22 3:23-CV-01977-LB, 2023 WL 4003723, at *3 (N.D. Cal. May 9, 2023) (collecting cases); see also 23 Strike 3 Holdings, 351 F. Supp. 3d at 162 (“[I]nferring the person who pays the cable bill illegally 24 downloaded a specific file is even less trustworthy than inferring they watched a specific TV 25 show.”). Moreover, if a defendant moves to confront a “copyright troll” or exhibits any serious 26 resistance, the company can simply drop the case and avoid any unfavorable judicial rulings. See 27 Strike 3 Holdings, 351 F. Supp. 3d at 162 (“These serial litigants drop cases at the first sign of 1 B. Good Cause 2 Turning to the merits of Strike 3’s ex parte application, the Court finds that Strike 3 has 3 demonstrated good cause for this early discovery under the four seescandy.com factors. See 185 4 F.R.D. at 578-80. 5 First, the Court finds that Strike 3 has identified the Doe Defendant with sufficient 6 specificity for the Court to determine that the Doe Defendant is a real person who may be sued in 7 federal court. The Complaint alleges that BitTorrent’s protocols require the activity of a human 8 user to share movies within the BitTorrent network. Compl. ¶¶ 18-27. Strike 3 also used 9 Maxmind geolocation technology to trace the IP address it procured through its VXN Scan 10 detection software to a geographic location within this district. Id. ¶ 9. 11 Second, Strike 3 has recounted the steps it took to locate and identify the Doe Defendant. 12 In addition to the geolocation and infringement detection technology described immediately 13 above, Strike 3 has attempted to associate the IP address with a defendant individual using various 14 web search tools and consultations with computer investigators and cyber security consultants. 15 Appl. 10. 16 Third, Strike 3 has preliminarily demonstrated that its action can withstand a motion to 17 dismiss. “Plaintiffs must satisfy two requirements to present a prima facie case of direct 18 infringement: (1) they must show ownership of the allegedly infringed material and (2) they must 19 demonstrate that the alleged infringers violate at least one exclusive right granted to copyright 20 holders under 17 U.S.C. § 106.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th 21 Cir. 2007). A copyright holder’s rights under Section 106 include the exclusive rights to 22 reproduce, distribute, publicly display, perform, and create derivative works of the copyrighted 23 work. 17 U.S.C. § 106. Here, Strike 3 alleges that it owns the copyrights to adult movies that the 24 Doe Defendant downloaded, copied, and distributed without permission. Compl. ¶¶ 29, 44. 25 Accepting these allegations as true, the Court finds that the Complaint may withstand a motion to 26 dismiss. 27 Finally, Strike 3 has shown that the discovery it seeks is reasonably likely to lead to 1 Strike 3 seeks the name and address of the Doe Defendant and has represented that the “only 2 entity that can correlate the IP address to its subscriber and identify Defendant as the person 3 assigned the IP address is Defendant’s ISP.” Appl. 6 (citing BMG Rts. Mgmt. (US) LLC v. Cox 4 Commc’ns, Inc., 881 F.3d 293, 299 (4th Cir. 2018) (“[O]nly the ISP can match the IP address to 5 the subscriber’s identity.”)). 6 In sum, the Court finds that Strike 3 has satisfied all four seescandy.com factors and 7 presented good cause for its requested expedited discovery. 8 C. Protective Order 9 Even though Strike 3 is entitled to a pre-discovery subpoena, the Court retains authority 10 under Federal Rule of Civil Procedure 26(c) to grant a sua sponte protective order for good cause. 11 See, e.g., McCoy v. Sw. Airlines Co., 211 F.R.D. 381, 385 (C.D. Cal. 2002); Fed. R. Civ. P. 26(c). 12 In this case, the Court finds that there is good cause to implement limited protective measures to 13 shield a potential innocent and unwitting ISP subscriber from undue prejudice. Strike 3 does not 14 oppose establishing procedural safeguards to respect privacy interests. Appl. 12-13. 15 Consistent with the protective measures undertaken by many other courts in this district, 16 the Court will employ procedures to treat as confidential any personal information regarding the 17 Doe Defendant that Comcast Cable produces to Strike 3. The Court will also permit and consider 18 any request by the Doe Defendant to proceed anonymously under a pseudonym. 19 IV. CONCLUSION 20 Based on the foregoing, the Court GRANTS Strike 3s Ex Parte Application with respect to 21 Defendant Doe, Subscriber Assigned IP Address 174.160.255.156, as follows: 22 1. Within 21 days of this Order, Strike 3 MAY serve a Rule 45 subpoena on Comcast Cable 23 (“ISP”), commanding the ISP to provide Strike 3 with the true name and address of the 24 Defendant to whom the ISP assigned an IP address as set forth on Exhibit A to the 25 Complaint. Strike 3 SHALL attach a copy of this Order to any such subpoena. 26 a. Strike 3 MAY serve a Rule 45 subpoena in the same manner as above on any service 27 provider that is identified in response to a subpoena as a provider of Internet services to 1 b. If the ISP qualifies as a “cable operator” per 47 U.S.C. § 522(5), then it shall comply 2 with 47 U.S.C. § 551(c)(2)(B) by sending a copy of this Order to Defendant. 3 2. Within thirty (30) days of being served by Strike 3, the ISP SHALL serve the Doe 4 Defendant subscriber assigned the IP address 174.160.255.156 with a copy of the subpoena 5 and this Order. 6 3. Within thirty (30) days after he or she has been served with the subpoena and this Order, 7 the Doe Defendant MAY file a motion to contest the subpoena, including a motion to 8 quash or modify the subpoena. The Doe Defendant MAY appear and proceed before this 9 Court under a pseudonym by requesting that their personal identifying information be filed 10 under seal. 11 a. If the Doe Defendant does not contest the subpoena within thirty days, the ISP may 12 produce the information responsive to Strike 3’s subpoena within ten (10) days. 13 4. Strike 3 MAY only use the information disclosed in response to its subpoena for the 14 purpose of protecting and enforcing its rights as set forth in the Complaint. Strike 3 MAY 15 NOT publicly disclose the information obtained from its subpoena without leave of this 16 Court. All references to the Doe Defendant’s identity SHALL be redacted and filed under 17 seal until further notice. 18 5. Comcast Cable or any other ISP that receives a subpoena pursuant to this Order SHALL 19 confer with Strike 3 and MAY NOT assess any charge in advance of providing the 20 information requested in the subpoena. The ISP that receives a subpoena and elects to 21 charge for the costs of production must provide a billing summary and cost reports that 22 serve as a basis for the billing summary and costs claimed by the ISP. 23 // 24 // 25 // 26 // 27 // 1 6. Comcast Cable or any other ISP that receives a subpoena pursuant to this Order SHALL 2 preserve any subpoenaed information pending the resolution of any timely filed motion to 3 dismiss. 4 IT IS SO ORDERED. 5 || Dated: April 4, 2024 6 = 7 col 8 ARACELI MARTINEZ-OLGUIN United States District Judge 9 10 11 12

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