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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`San Francisco Division
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`STRIKE 3 HOLDINGS, LLC,
`Plaintiff,
`
`v.
`
`JOHN DOE SUBSCRIBER ASSIGNED IP
`ADDRESS 107.213.155.207,
`Defendant.
`
`
`
`Case No. 20-cv-08363-LB
`
`
`ORDER GRANTING EX PARTE
`APPLICATION FOR LEAVE TO
`SERVE THIRD-PARTY SUBPOENA
`Re: ECF No. 7
`
`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 107.213.155.207
`infringed on those copyrights. Despite its own efforts, Strike 3 Holdings has not been able to
`identify the individual associated with that IP address.2 Strike 3 Holdings now asks the court to let
`it serve a subpoena on non-party AT&T U-verse, the Doe defendant’s internet service provider, to
`
`
`1 Compl. – ECF No. 1 at 1–2 (¶¶ 1–5), 6 (¶ 47); Appl. – ECF No. 7 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 Appl. – ECF No. 7 at 14–15.
`
`ORDER – No. 20-cv-08363-LB
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`Northern District of California
`United States District Court
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`Case 3:20-cv-08363-LB Document 9 Filed 12/15/20 Page 2 of 8
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`learn the Doe defendant’s identity.3 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 adult
`brands Blacked, Tushy, Vixen, and Blacked Raw.4 The motion pictures are registered with the
`United States Copyright Office.5
`The Doe defendant, who uses the AT&T U-verse-provided IP address 107.213.155.207, used
`the file distribution network known as “BitTorrent” to illegally download and distribute Strike 3
`Holdings’s copyrighted movies.6 Through 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.7 Using a proprietary infringement detection system called “VXN Scan,” Strike 3
`Holdings established direct “TCP/IP” connections with the defendant’s IP address while the
`defendant was using BitTorrent.8 VXN Scan downloaded media files containing a digital copy of
`Strike 3’s copyrighted movies from the defendant.9 The “Info Hash” — the data that BitTorrent
`protocol uses to identify media files across the BitTorrent network — confirmed that the files that
`VXN Scan downloaded were downloaded from the defendant.10 The defendant “has been recorded
`infringing 139 movies over an extended period of time.”11 Strike 3 Holdings did not give the
`
`
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`3 Id. at 9–10.
`4 Compl. – ECF No. 1 at 1–2 (¶¶ 2–3).
`5 Id. at 6 (¶ 47).
`6 Id. at 2 (¶ 4).
`7 Id. at 2 (¶¶ 9–10).
`8 Id. at 5 (¶¶ 29–31).
`9 Id. (¶¶ 32–33).
`10 Id. at 5–6 (¶ 34–37).
`11 Id. at 2 (¶ 4).
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`ORDER – No. 20-cv-08363-LB
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`Northern District of California
`United States District Court
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`Case 3:20-cv-08363-LB Document 9 Filed 12/15/20 Page 3 of 8
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`defendant authorization to distribute its copyrighted movies.12 Strike 3 Holdings alleges that
`AT&T U-verse can identify the defendant through his or her IP address.13
`On November 27, 2020, Strike 3 Holdings filed a complaint against the Doe defendant
`alleging one claim for copyright infringement under the Copyright Act.14 On December 4, 2020,
`Strike 3 Holdings filed an ex parte application asking the court to allow it to serve AT&T U-verse
`with a subpoena under Federal Rule of Civil Procedure 45.15 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.16
`
`
`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
`defendant with sufficient specificity that the court can determine that the defendant is a real person
`
`
`
`12 Id. at 6 (¶ 45).
`13 Id. at 2 (¶ 5).
`14 Id. at 7‒8 (¶¶ 49–54).
`15 Appl. – ECF No. 7 at 9.
`16 Id. at 9–10.
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`ORDER – No. 20-cv-08363-LB
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`Northern District of California
`United States District Court
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`Case 3:20-cv-08363-LB Document 9 Filed 12/15/20 Page 4 of 8
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`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)).
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`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. To download the movie, the Doe defendant had to
`direct his or her BitTorrent client to download the media file.17 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
`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.18
`
`17 Id. at 16.
`18 Compl. – ECF No. 1 at 2–3 (¶¶ 8–11).
`
`
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`ORDER – No. 20-cv-08363-LB
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`Northern District of California
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`Case 3:20-cv-08363-LB Document 9 Filed 12/15/20 Page 5 of 8
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`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.19 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.20
`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 the Doe Defendant’s ISP, AT&T U-verse can identify the Doe defendant through his
`or her IP address.21
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`19 Id.
`20 Id. at 6 (¶¶ 45–47).
`21 Id. at 2 (¶ 5).
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`ORDER – No. 20-cv-08363-LB
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`Northern District of California
`United States District Court
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`Case 3:20-cv-08363-LB Document 9 Filed 12/15/20 Page 6 of 8
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`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 and 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 Holdings 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 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
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`ORDER – No. 20-cv-08363-LB
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`Northern District of California
`United States District Court
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`Case 3:20-cv-08363-LB Document 9 Filed 12/15/20 Page 7 of 8
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`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.
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`
`CONCLUSION
`The court GRANTS Strike 3 Holdings’s Ex Parte Motion for Expedited Discovery with
`respect to JOHN DOE subscriber assigned IP address 107.213.155.207 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.
`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
`
`ORDER – No. 20-cv-08363-LB
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`Northern District of California
`United States District Court
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`Case 3:20-cv-08363-LB Document 9 Filed 12/15/20 Page 8 of 8
`Case 3:20-cv-08363-LB Document 9 Filed 12/15/20 Page 8 of 8
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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: December 15, 2020
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`MK
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`LAUREL BEELER
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`United States Magistrate Judge
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`ORDER — No. 20-cv-08363-LB
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`N A
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`DJ
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`\OOONQUI
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