`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`San Francisco Division
`
`STRIKE 3 HOLDINGS, LLC,
`
`Plaintiff,
`
`v.
`
`JOHN DOE SUBSCRIBER ASSIGNED IP
`ADDRESS 108.198.213.54,
`
`Defendant.
`
`
`
`Case No. 18-cv-4988-LB
`
`
`ORDER GRANTING PLAINTIFF’S EX
`PARTE MOTION TO TAKE EARLY
`DISCOVERY
`
`Re: ECF No. 8
`
`INTRODUCTION
`
`The plaintiff Strike 3 Holdings owns the copyrights for several adult motion pictures.1 It
`
`alleges that someone — the Doe defendant here — who uses the IP address 108.198.213.54
`
`infringed on those copyrights.2 Despite its own efforts, Strike 3 Holdings has not been able to
`
`identify the individual associated with that IP address.3 Strike 3 Holdings now asks the court to let
`
`it serve a subpoena on non-party AT&T, Inc. (AT&T U-verse), the Doe defendant’s internet
`
`
`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.
`
`ORDER – No. 18-cv-03825-LB
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:18-cv-04988-LB Document 9 Filed 09/24/18 Page 2 of 8
`
`
`
`service provider, to learn the Doe defendant’s identity.4 Because Strike 3 Holdings has
`
`demonstrated that good cause exists to allow it to serve a subpoena, the court grants the motion.
`
`
`
`STATEMENT
`
`Strike 3 Holdings is the owner of several adult motion pictures distributed through its Blacked,
`
`Tushy, Vixen, and Blacked Raw brands.5 The motion pictures are registered with the United States
`
`Copyright Office or have complete applications pending.6
`
`The Doe defendant, who uses the AT&T U-verse-provided IP address 108.198.213.54, used
`
`the file distribution network known as “BitTorrent” to illegally download and distribute Strike 3
`
`Holdings’s copyrighted movies.7 Through well-accepted geolocation technology, Strike 3 has
`
`traced each download made to the Doe defendant’s IP address to a physical address in the
`
`Northern District of California.8 Strike 3 Holdings’s investigator established direct “TCP/IP”
`
`connections with the defendant’s IP address while the defendant was using BitTorrent.9 The
`
`investigator downloaded media files containing a digital copy of Strike 3’s copyrighted movies
`
`from the defendant.10 The “file hash” — a unique value that acts as a “fingerprint” identifying
`
`media files — confirmed that the files the investigator downloaded were downloaded from the
`
`defendant.11 The defendant “has been recorded infringing 36 movies over an extended period of
`
`time.”12 Strike 3 Holdings did not give the defendant permission or authorization to distribute its
`
`
`4 See generally id.
`5 Compl. – ECF No. 1 at 2 (¶ 1).
`6 Id. at 5 (¶32).
`7 Id. (¶ 24).
`8 Id. at 2 (¶ 9).
`9 Id. at 5 (¶ 25).
`10 Id. (¶ 26).
`11 Id. (¶ 27).
`12 Id. at 2 (¶ 4).
`
`ORDER – No. 18-cv-03825-LB
`
`2
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:18-cv-04988-LB Document 9 Filed 09/24/18 Page 3 of 8
`
`
`
`copyrighted movies.13 Strike 3 Holdings alleges that AT&T U-verse can identify the defendant
`
`through his or her IP address.14
`
`On August 15, 2018, Strike 3 Holdings filed a complaint against the Doe defendant alleging
`
`one claim for copyright infringement under the Copyright Act.15 On September 21, 2018, Strike 3
`
`Holdings filed an ex parte motion asking the court to allow it to serve AT&T U-verse with a
`
`subpoena under Federal Rule of Civil Procedure 45.16 Strike 3 Holdings says that the subpoena
`
`will be limited to the name and address of the individual/individuals associated with the Doe
`
`defendant’s IP address.17
`
`
`
`GOVERNING LAW
`
`A court may authorize early discovery before the Rule 26(f) conference for the parties’ and
`
`witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d). Courts within the
`
`Ninth Circuit generally consider whether a plaintiff has shown “good cause” for early discovery.
`
`See, e.g., IO Grp., Inc. v. Does 1–65, No. 10-4377 SC, 2010 WL 4055667, at *2 (N.D. Cal. Oct.
`
`15, 2010); Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275–77 (N.D. Cal. 2002);
`
`Tex. Guaranteed Student Loan Corp. v. Dhindsa, No. 1:10-cv-00335-LJO-SKO, 2010 WL
`
`2353520, at *2 (E.D. Cal. June 9, 2010); Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 202
`
`F.R.D. 612, 613–14 (D. Ariz. 2001) (collecting cases and standards). “Good cause may be found
`
`where the need for expedited discovery, in consideration of the administration of justice,
`
`outweighs the prejudice to the responding party.” Semitool, 208 F.R.D. at 276.
`
`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
`
`
`13 Id. at 6 (¶ 38).
`14 Id. at 2 (¶ 5).
`15 Id. at 6‒7 (¶¶ 35–40).
`16 Mot. – ECF No. 8 at 10.
`17 Id.
`
`ORDER – No. 18-cv-03825-LB
`
`3
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:18-cv-04988-LB Document 9 Filed 09/24/18 Page 4 of 8
`
`
`
`defendant with sufficient specificity that the court can determine that the defendant is a real person
`
`who can be sued in federal court, (2) recounts the steps taken to locate and identify the defendant,
`
`(3) demonstrates that the action can withstand a motion to dismiss, and (4) shows that the
`
`discovery is reasonably likely to lead to identifying information that will permit service of process.
`
`Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578–80 (N.D. Cal. 1999) (citations omitted).
`
`“‘[W]here the identity of alleged defendants [is not] known prior to the filing of a complaint[,] the
`
`plaintiff should be given an opportunity through discovery to identify the unknown defendants,
`
`unless it is clear that discovery would not uncover the identities, or that the complaint would be
`
`dismissed on other grounds.’” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999)
`
`(quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)).
`
`
`
`ANALYSIS
`
`1. Strike 3 Holdings Establishes Good Cause for Early Discovery
`
`Strike 3 Holdings has made a sufficient showing under each of the four seescandy factors
`
`listed above to establish good cause to permit it to engage in early discovery to identify the Doe
`
`defendant.
`
`First, Strike 3 Holdings has identified the Doe defendant with sufficient specificity that the
`
`court can determine that he or she is a real person who can be sued in federal court. It alleges that
`
`the Doe defendant downloaded Strike 3 Holdings’s copyrighted adult motion pictures and
`
`distributed them over the BitTorrent network.18 To download the movie, the Doe defendant had to
`
`direct his or her BitTorrent client to download the media file.19 These facts indicate that the Doe
`
`defendant is an identifiable adult who likely is the primary subscriber of the IP address or
`
`someone who resides with and is known to the subscriber. Strike 3 Holdings also has traced each
`
`
`18 Compl. – ECF No. 1 at 5 (¶ 24), 6 (¶ 37).
`19 Mot. – ECF No. 8 at 17.
`
`ORDER – No. 18-cv-03825-LB
`
`4
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:18-cv-04988-LB Document 9 Filed 09/24/18 Page 5 of 8
`
`
`
`download made to the Doe defendant’s IP address to the Northern District of California, thus
`
`giving the court jurisdiction over the defendant and Strike 3’s federal claim.20
`
`Second, Strike 3 Holdings has recounted the steps taken to locate and identify the Doe
`
`defendant. The Doe defendant downloaded and distributed Strike 3 Holdings’s movies through his
`
`or her IP address, and his or her IP address was traced to this district.21 The IP address is not
`
`sufficient for Strike 3 to identify the Doe defendant.
`
`Third, Strike 3 Holdings has demonstrated that its copyright claim could withstand a motion to
`
`dismiss. A plaintiff “must satisfy two requirements to present a prima facie case of direct
`
`infringement: (1) [he or she] must show ownership of the allegedly infringed material and (2) [he
`
`or she] must demonstrate that the alleged infringers violate at least one exclusive right granted to
`
`copyright holders under 17 U.S.C. § 106.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146,
`
`1159 (9th Cir. 2007) (citing A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.
`
`2001)); see 17 U.S.C. § 501(a). Under Section 106, a copyright holder has the exclusive rights to
`
`reproduce, distribute, publicly display, perform, and create derivative works of the copyrighted
`
`work. Direct copyright infringement does not require intent or any particular state of mind. Fox
`
`Broad. Co, Inc. v. Dish Network, LLC, 905 F. Supp. 2d 1088, 1098–99 (C.D. Cal. 2012); Religious
`
`Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 1367 (N.D. Cal. 1995).
`
`Strike 3 Holdings alleges that it holds the copyrights for the adult motion pictures that the Doe
`
`defendant downloaded (and thus copied) and distributed the movies without its permission.22
`
`Strike 3 Holdings has sufficiently alleged a prima facie claim for copyright infringement.
`
`Fourth, Strike 3 Holdings has shown that the discovery it seeks is reasonably likely to lead to
`
`identifying information that will permit service of process on the Doe defendant. Strike 3 Holdings
`
`alleges that AT&T U-verse records should identify the Doe defendant.23
`
`
`20 Compl. – ECF No. 1 at 2 (¶¶ 8–10).
`21 Id.
`22 Id. at 5 (¶¶ 28–33).
`23 Id. at 2 (¶ 5).
`
`ORDER – No. 18-cv-03825-LB
`
`5
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:18-cv-04988-LB Document 9 Filed 09/24/18 Page 6 of 8
`
`
`
`
`
`2. Protective Order
`
`“[U]nder Rule 26(c), the Court may sua sponte grant a protective order for good cause
`
`shown.” McCoy v. Sw. Airlines Co., Inc., 211 F.R.D. 381, 385 (C.D. Cal. 2002). The court issues
`
`the limited protective order described below because the ISP subscriber may be an innocent third
`
`party, the subject matter of the suit deals with sensitive and personal matters.
`
`Here, as has been discussed by other courts in this district, the ISP subscribers may not be the
`
`individuals who infringed upon Strike 3 Holdings’s copyright. See, e.g., Pac. Century Int’l Ltd. v.
`
`Does 1–101, No. C-11-02533 (DMR), 2011 WL 5117424, at *2 (N.D. Cal. Oct. 27, 2011); see
`
`also IO Grp., Inc. v. Does 1–19, No. C 10-03851 SI, 2011 WL 772909, at *1 (N.D. Cal. Mar. 1,
`
`2011) (granting the plaintiff additional time to identify and serve the true defendant where a
`
`subscriber asserted that he did not infringe plaintiff’s work, suggesting that someone else used his
`
`IP address to infringe the plaintiff’s work, and the plaintiff claimed that it needed to take third-
`
`party discovery from the subscriber to try to identify who actually used the subscriber’s IP address
`
`to allegedly infringe the plaintiff’s work).
`
`Additionally, requests for pseudonymity have been granted when anonymity is necessary to
`
`preserve privacy in a matter of a sensitive and highly personal nature. See Does I Thru XXIII v.
`
`Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000). An allegation that an individual
`
`illegally downloaded adult motion pictures likely goes to matters of a sensitive and highly
`
`personal nature, including one’s sexuality.
`
`Accordingly, the court issues a protective order to the limited extent that any information
`
`regarding the Doe defendant released to Strike 3 Holding by the ISP will be treated as confidential
`
`for a limited duration. See IO Grp., Inc. v. Does 1–19, No. C 10-03851 SI, 2010 WL 5071605, at
`
`*2 (N.D. Cal. 2010). Specifically, Strike 3 Holdings must not publicly disclose that information
`
`until the Doe defendant has the opportunity to file a motion with this court to be allowed to
`
`proceed in this litigation anonymously and that motion is ruled on by the court. Id. If the Doe
`
`defendant fails to file a motion for leave to proceed anonymously within 30 days after his or her
`
`ORDER – No. 18-cv-03825-LB
`
`6
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:18-cv-04988-LB Document 9 Filed 09/24/18 Page 7 of 8
`
`
`
`information is disclosed to Strike 3 Holdings’s counsel, this limited protective order will expire.
`
`Id. Given the potential embarrassment associated with being publicly accused of having illegally
`
`downloaded adult motion pictures, if the Doe defendant includes identifying information within
`
`his or her request to proceed anonymously, the court finds good cause to order the papers filed
`
`under seal until the court has the opportunity to rule on the request. See id. at 3 (permitting party to
`
`file under seal a declaration with identifying information). If the Doe defendant includes
`
`identifying information with his or her request to proceed anonymously and the request is placed
`
`under seal, the court will direct the Doe defendant to submit a copy of the under-seal request to
`
`Strike 3 Holdings and will ensure that Strike 3 Holdings has time to respond.
`
`
`
`CONCLUSION
`
`The court GRANTS Strike 3 Holdings’s Ex Parte Motion for Expedited Discovery with
`
`respect to JOHN DOE subscriber assigned IP address 108.198.213.54 as follows.
`
`1. IT IS HEREBY ORDERED that Strike 3 Holding may immediately serve a Rule 45
`
`subpoena on AT&T U-verse to obtain the Doe defendant’s true name and addresses. The subpoena
`
`must have a copy of this order attached.
`
`2. IT IS FURTHER ORDERED that the ISP will have 30 days from the date of service
`
`upon them to serve the Doe defendant with a copy of the subpoena and a copy of this order. The
`
`ISP may serve the Doe defendant using any reasonable means, including written notice sent to his
`
`or her last known address, transmitted either by first-class mail or via overnight service.
`
`3. IT IS FURTHER ORDERED that the Doe defendant will have 30 days from the date of
`
`service upon him or her to file any motions contesting the subpoena (including a motion to quash
`
`or modify the subpoena) with the court that issued the subpoena. If that 30-day period lapses
`
`without the Doe defendant contesting the subpoena, the ISP will have 10 days to produce the
`
`information responsive to the subpoena to Strike 3 Holdings.
`
`4. IT IS FURTHER ORDERED that the subpoenaed entity must preserve any subpoenaed
`
`information pending the resolution of any timely-filed motion to quash.
`
`ORDER – No. 18-cv-03825-LB
`
`7
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:18-cv-04988-LB Document 9 Filed 09/24/18 Page 8 of 8
`
`
`
`5. IT IS FURTHER ORDERED that the ISP that receives a subpoena pursuant to this order
`
`must confer with Strike 3 Holdings and may not assess any charge in advance of providing the
`
`information requested in the subpoena. The ISP that receives a subpoena and elects to charge for
`
`the costs of production must provide a billing summary and cost reports that serve as a basis for
`
`such billing summary and any costs claimed by the ISP.
`
`6. IT IS FURTHER ORDERED that Strike 3 Holdings must serve a copy of this order along
`
`with any subpoenas issued pursuant to this order to the necessary entities.
`
`7. IT IS FURTHER ORDERED that any information disclosed to Strike 3 Holdings in
`
`response to a Rule 45 subpoena may be used by Strike 3 Holdings solely for the purpose of
`
`protecting Strike 3 Holdings’s rights as set forth in its complaint.
`
`
`
`IT IS SO ORDERED.
`
`Dated:
`
`______________________________________
`
`LAUREL BEELER
`United States Magistrate Judge
`
`ORDER – No. 18-cv-03825-LB
`
`8
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`