Case 3:18-cv-03663-LB Document 9 Filed 07/17/18 Page 1 of 8
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`San Francisco Division
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`STRIKE 3 HOLDINGS, LLC,
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`Plaintiff,
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`v.
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`JOHN DOE SUBSCRIBER ASSIGNED IP
`ADDRESS 24.6.237.120,
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`Defendant.
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`Case No. 18-cv-03663-LB
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`ORDER GRANTING PLAINTIFF’S EX
`PARTE MOTION TO TAKE EARLY
`DISCOVERY
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`Re: ECF No. 8
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`INTRODUCTION
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`The plaintiff Strike 3 Holdings owns the copyrights for several adult motion pictures.1 It
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`alleges that someone — the Doe defendant here — who uses the IP address 24.6.237.120
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`infringed on those copyrights.2 Despite its own efforts, Strike 3 Holdings has not been able to
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`identify the individual associated with that IP address.3 Strike 3 Holdings now asks the court to let
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`it serve a subpoena on non-party Comcast Cable Communications, LLC, the Doe defendant’s
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`1 Mot. – ECF No. 8 at 9. Citations refer to material in the Electronic Case File (“ECF”); pinpoint
`citations are to the ECF-generated page numbers at the top of documents.
`2 Id.
`3 Id. at 14–15.
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`ORDER – No. 18-cv-03663-LB
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`Case 3:18-cv-03663-LB Document 9 Filed 07/17/18 Page 2 of 8
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`internet service provider, to learn the Doe defendant’s identity.4 Because Strike 3 Holdings has
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`demonstrated that good cause exists to allow it to serve a subpoena, the court grants the motion.
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`STATEMENT
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`Strike 3 Holdings is the owner of several adult motion pictures distributed through its adult
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`brands Blacked, Tushy, Vixen, and Blacked Raw.5 The motion pictures are registered with the
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`United States Copyright Office or have complete applications pending.6
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`The Doe defendant, who uses the Comcast-provided IP address 24.6.237.120, used the file
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`distribution network known as “BitTorrent” to illegally download and distribute Strike 3
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`Holdings’s copyrighted movies.7 Through well-accepted geolocation technology, Strike 3 has
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`traced each download made to the Doe defendant’s IP address to a physical address in the
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`Northern District of California.8 Strike 3 Holdings’s investigator established direct “TCP/IP”
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`connections with the defendant’s IP address while the defendant was using BitTorrent.9 The
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`investigator downloaded media files containing a digital copy of Strike 3’s copyrighted movies
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`from the defendant.10 The “file hash” — a unique value that acts as a “fingerprint” identifying
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`media files — confirmed that the files the investigator downloaded were downloaded from the
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`defendant.11 The defendant “has been recorded infringing 43 movies over an extended period of
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`time.”12 Strike 3 Holdings did not give the defendant permission or authorization to distribute its
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`4 See generally id.
`5 Compl. – ECF No. 1 at 1 (¶ 3).
`6 Id. at 5–6 (¶¶ 32–33).
`7 Id. at 5 (¶ 24).
`8 Id. at 2 (¶ 9).
`9 Id. at 5 (¶ 25).
`10 Id. (¶ 26).
`11 Id. (¶ 27).
`12 Id. at 2 (¶ 4).
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`ORDER – No. 18-cv-03663-LB
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`Case 3:18-cv-03663-LB Document 9 Filed 07/17/18 Page 3 of 8
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`copyrighted movies.13 Strike 3 Holdings alleges that Comcast can identify the defendant through
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`his or her IP address.14
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`On June 19, 2018, Strike 3 Holdings filed a complaint against the Doe defendant alleging one
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`claim for copyright infringement under the Copyright Act.15 On July 12, 2018, Strike 3 Holdings
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`filed an ex parte motion asking the court to allow it to serve Comcast with a subpoena under
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`Federal Rule of Civil Procedure 45.16 Strike 3 Holdings says that the subpoena will be limited to
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`the name and address of the individual/individuals associated with the Doe defendant’s IP
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`address.17
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`GOVERNING LAW
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`A court may authorize early discovery before the Rule 26(f) conference for the parties’ and
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`witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d). Courts within the
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`Ninth Circuit generally consider whether a plaintiff has shown “good cause” for early discovery.
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`See, e.g., IO Grp., Inc. v. Does 1–65, No. 10-4377 SC, 2010 WL 4055667, at *2 (N.D. Cal. Oct.
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`15, 2010); Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275–77 (N.D. Cal. 2002);
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`Tex. Guaranteed Student Loan Corp. v. Dhindsa, No. 1:10-cv-00335-LJO-SKO, 2010 WL
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`2353520, at *2 (E.D. Cal. June 9, 2010); Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 202
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`F.R.D. 612, 613–14 (D. Ariz. 2001) (collecting cases and standards). “Good cause may be found
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`where the need for expedited discovery, in consideration of the administration of justice,
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`outweighs the prejudice to the responding party.” Semitool, 208 F.R.D. at 276.
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`In evaluating whether a plaintiff establishes good cause to learn the identity of a Doe
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`defendant through early discovery, courts examine whether the plaintiff: (1) identifies the Doe
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`13 Id. at 6 (¶ 38).
`14 Id. at 2 (¶ 5).
`15 Id. at 6–7 (¶¶ 35–39).
`16 Mot. – ECF No. 8 at 10.
`17 Id.
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`ORDER – No. 18-cv-03663-LB
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`Case 3:18-cv-03663-LB Document 9 Filed 07/17/18 Page 4 of 8
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`defendant with sufficient specificity that the court can determine that the defendant is a real person
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`who can be sued in federal court, (2) recounts the steps taken to locate and identify the defendant,
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`(3) demonstrates that the action can withstand a motion to dismiss, and (4) shows that the
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`discovery is reasonably likely to lead to identifying information that will permit service of process.
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`Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578–80 (N.D. Cal. 1999) (citations omitted).
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`“‘[W]here the identity of alleged defendants [is not] known prior to the filing of a complaint[,] the
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`plaintiff should be given an opportunity through discovery to identify the unknown defendants,
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`unless it is clear that discovery would not uncover the identities, or that the complaint would be
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`dismissed on other grounds.’” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999)
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`(quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)).
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`ANALYSIS
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`1. Strike 3 Holdings Establishes Good Cause for Early Discovery
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`Strike 3 Holdings has made a sufficient showing under each of the four seescandy factors
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`listed above to establish good cause to permit it to engage in early discovery to identify the Doe
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`defendant.
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`First, Strike 3 Holdings has identified the Doe defendant with sufficient specificity that the
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`court can determine that he or she is a real person who can be sued in federal court. It alleges that
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`the Doe defendant downloaded Strike 3 Holdings’s copyrighted adult motion pictures and
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`distributed them over the BitTorrent network.18 To download the movie, the Doe defendant had to
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`direct his or her BitTorrent client to download the media file.19 These facts indicate that the Doe
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`defendant is an identifiable adult who likely is the primary subscriber of the IP address or
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`someone who resides with and is known to the subscriber. Strike 3 Holdings also has traced each
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`18 Compl. – ECF No. 1 at 5 (¶ 24), 6 (¶ 39).
`19 Mot. – ECF No. 8 at 17.
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`ORDER – No. 18-cv-03663-LB
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`Case 3:18-cv-03663-LB Document 9 Filed 07/17/18 Page 5 of 8
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`download made to the Doe defendant’s IP address to the Northern District of California, thus
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`giving the court jurisdiction over the defendant and Strike 3’s federal claim.20
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`Second, Strike 3 Holdings has recounted the steps taken to locate and identify the Doe
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`defendant. The Doe defendant downloaded and distributed Strike 3 Holdings’s movies through his
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`or her IP address, and his or her IP address was traced to this district.21 The IP address is not
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`sufficient for Strike 3 to identify the Doe defendant.
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`Third, Strike 3 Holdings has demonstrated that its copyright claim could withstand a motion to
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`dismiss. A plaintiff “must satisfy two requirements to present a prima facie case of direct
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`infringement: (1) [he or she] must show ownership of the allegedly infringed material and (2) [he
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`or she] must demonstrate that the alleged infringers violate at least one exclusive right granted to
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`copyright holders under 17 U.S.C. § 106.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146,
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`1159 (9th Cir. 2007) (citing A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.
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`2001)); see 17 U.S.C. § 501(a). Under Section 106, a copyright holder has the exclusive rights to
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`reproduce, distribute, publicly display, perform, and create derivative works of the copyrighted
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`work. Direct copyright infringement does not require intent or any particular state of mind. Fox
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`Broad. Co, Inc. v. Dish Network, LLC, 905 F. Supp. 2d 1088, 1098–99 (C.D. Cal. 2012); Religious
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`Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 1367 (N.D. Cal. 1995).
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`Strike 3 Holdings alleges that it holds the copyrights for the adult motion pictures that the Doe
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`defendant downloaded (and thus copied) and distributed the movies without its permission.22
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`Strike 3 Holdings has sufficiently alleged a prima facie claim for copyright infringement.
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`Fourth, Strike 3 Holdings has shown that the discovery it seeks is reasonably likely to lead to
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`identifying information that will permit service of process on the Doe defendant. Strike 3 Holdings
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`alleges that Comcast records should identify the Doe defendant.23
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`20 Compl. – ECF No. 1 at 2 (¶¶ 8–9).
`21 Id.
`22 Id. at 5 (¶¶ 28–32).
`23 Id. at 2 (¶ 5).
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`ORDER – No. 18-cv-03663-LB
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`Case 3:18-cv-03663-LB Document 9 Filed 07/17/18 Page 6 of 8
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`2. Protective Order
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`“[U]nder Rule 26(c), the Court may sua sponte grant a protective order for good cause
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`shown.” McCoy v. Sw. Airlines Co., Inc., 211 F.R.D. 381, 385 (C.D. Cal. 2002). The court issues
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`the limited protective order described below because the ISP subscriber may be an innocent third
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`party, the subject matter of the suit deals with sensitive and personal matters.
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`Here, as has been discussed by other courts in this district, the ISP subscribers may not be the
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`individuals who infringed upon Strike 3 Holdings’s copyright. See, e.g., Pac. Century Int’l Ltd. v.
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`Does 1–101, No. C-11-02533 (DMR), 2011 WL 5117424, at *2 (N.D. Cal. Oct. 27, 2011); see
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`also IO Grp., Inc. v. Does 1–19, No. C 10-03851 SI, 2011 WL 772909, at *1 (N.D. Cal. Mar. 1,
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`2011) (granting the plaintiff additional time to identify and serve the true defendant where a
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`subscriber asserted that he did not infringe plaintiff’s work, suggesting that someone else used his
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`IP address to infringe the plaintiff’s work, and the plaintiff claimed that it needed to take third-
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`party discovery from the subscriber to try to identify who actually used the subscriber’s IP address
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`to allegedly infringe the plaintiff’s work).
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`Additionally, requests for pseudonymity have been granted when anonymity is necessary to
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`preserve privacy in a matter of a sensitive and highly personal nature. See Does I Thru XXIII v.
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`Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000). An allegation that an individual
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`illegally downloaded adult motion pictures likely goes to matters of a sensitive and highly
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`personal nature, including one’s sexuality.
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`Accordingly, the court issues a protective order to the limited extent that any information
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`regarding the Doe defendant released to Strike 3 Holding by the ISP will be treated as confidential
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`for a limited duration. See IO Grp., Inc. v. Does 1–19, No. C 10-03851 SI, 2010 WL 5071605, at
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`*2 (N.D. Cal. 2010). Specifically, Strike 3 Holdings must not publicly disclose that information
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`until the Doe defendant has the opportunity to file a motion with this court to be allowed to
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`proceed in this litigation anonymously and that motion is ruled on by the court. Id. If the Doe
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`defendant fails to file a motion for leave to proceed anonymously within 30 days after his or her
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`information is disclosed to Strike 3 Holdings’s counsel, this limited protective order will expire.
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`Id. Given the potential embarrassment associated with being publicly accused of having illegally
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`ORDER – No. 18-cv-03663-LB
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`Case 3:18-cv-03663-LB Document 9 Filed 07/17/18 Page 7 of 8
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`downloaded adult motion pictures, if the Doe defendant includes identifying information within
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`his or her request to proceed anonymously, the court finds good cause to order the papers filed
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`under seal until the court has the opportunity to rule on the request. See id. at 3 (permitting party to
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`file under seal a declaration with identifying information). If the Doe defendant includes
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`identifying information with his or her request to proceed anonymously and the request is placed
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`under seal, the court will direct the Doe defendant to submit a copy of the under-seal request to
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`Strike 3 Holdings and will ensure that Strike 3 Holdings has time to respond.
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`CONCLUSION
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`The court GRANTS Strike 3 Holdings’s Ex Parte Motion for Expedited Discovery with
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`respect to JOHN DOE subscriber assigned IP address 24.6.237.120 as follows.
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`1. IT IS HEREBY ORDERED that Strike 3 Holding may immediately serve a Rule 45
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`subpoena on Comcast Cable Communications, LLC to obtain the Doe defendant’s true name and
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`addresses. The subpoena must have a copy of this order attached.
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`2. IT IS FURTHER ORDERED that the ISP will have 30 days from the date of service
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`upon them to serve the Doe defendant with a copy of the subpoena and a copy of this order. The
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`ISP may serve the Doe defendant using any reasonable means, including written notice sent to his
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`or her last known address, transmitted either by first-class mail or via overnight service.
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`3. IT IS FURTHER ORDERED that the Doe defendant will have 30 days from the date of
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`service upon him or her to file any motions contesting the subpoena (including a motion to quash
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`or modify the subpoena) with the court that issued the subpoena. If that 30-day period lapses
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`without the Doe defendant contesting the subpoena, the ISP will have 10 days to produce the
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`information responsive to the subpoena to Strike 3 Holdings.
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`4. IT IS FURTHER ORDERED that the subpoenaed entity must preserve any subpoenaed
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`information pending the resolution of any timely-filed motion to quash.
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`5. IT IS FURTHER ORDERED that the ISP that receives a subpoena pursuant to this order
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`must confer with Strike 3 Holdings and may not assess any charge in advance of providing the
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`information requested in the subpoena. The ISP that receives a subpoena and elects to charge for
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`ORDER – No. 18-cv-03663-LB
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`the costs of production must provide a billing summary and cost reports that serve as a basis for
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`such billing summary and any costs claimed by the ISP.
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`6. IT IS FURTHER ORDERED that Strike 3 Holdings must serve a copy of this order along
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`with any subpoenas issued pursuant to this order to the necessary entities.
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`7. IT IS FURTHER ORDERED that any information disclosed to Strike 3 Holdings in
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`response to a Rule 45 subpoena may be used by Strike 3 Holdings solely for the purpose of
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`protecting Strike 3 Holdings’s rights as set forth in its complaint.
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`IT IS SO ORDERED.
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`Dated: July 17, 2018
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`______________________________________
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`LAUREL BEELER
`United States Magistrate Judge
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`ORDER – No. 18-cv-03663-LB
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