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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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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 67.180.142.99,
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`Case No. 21-cv-07970-EMC
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`ORDER GRANTING PLAINTIFF’S EX
`PARTE APPLICATION FOR LEAVE
`TO SERVE THIRD-PARTY
`SUBPOENA
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`Defendant.
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`Docket No. 7
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`I.
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`INTRODUCTION
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`The plaintiff Strike 3 Holdings owns the copyrights for several adult motion pictures.
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`Docket No. 7 (“Ex Parte Appl.”) at 9. It alleges that someone — the Doe defendant here — who
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`uses the IP address 67.180.142.99 infringed on those copyrights. Docket No. 1 (“Compl.”).
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`Despite its own efforts, Strike 3 Holdings has not been able to identify the individual associated
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`with that IP address. Ex Parte Appl. at 18. Strike 3 Holdings now asks the Court to let it serve a
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`subpoena on non-party Comcast, the Doe defendant’s internet service provider, to learn the Doe
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`defendant’s identity. See generally id.
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`Because Strike 3 Holdings has demonstrated that good cause exists to allow it to serve a
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`subpoena, the Court GRANTS the motion.
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`II.
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`BACKGROUND
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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. Ex Parte Appl. at 10. Strike 3 holds title to each
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`of the motion pictures distributed through its brands’ sites. Id.
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`The Doe defendant, who uses the Comcast-provided IP address 67.180.142.99, allegedly
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`Northern District of California
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`United States District Court
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`Case 3:21-cv-07970-EMC Document 8 Filed 10/21/21 Page 2 of 7
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`used the file distribution network known as “BitTorrent” to illegally download and distribute
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`Strike 3 Holdings’s copyrighted movies. Compl. ¶ 38. Through geolocation technology, Strike 3
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`has 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. Ex Parte Appl. at 16-17. Strike 3 Holdings’s investigator
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`established direct “TCP/IP” connections with the defendant’s IP address while the defendant was
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`using BitTorrent. Compl. ¶¶ 30-33. The investigator downloaded media files containing a digital
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`copy of Strike 3’s copyrighted movies from the defendant. Compl. ¶¶ 28-47. The file hash — a
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`unique value that acts as a fingerprint identifying media files — confirmed that the files the
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`investigator downloaded were downloaded from the defendant. Id; Ex Parte Appl. at 18. The
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`defendant “has been recorded infringing 38 movies over an extended period of time.” Compl. ¶ 4.
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`Strike 3 Holdings did not give the defendant permission or authorization to distribute its
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`copyrighted movies. Id. ¶ 51. Strike 3 Holdings alleges that Comcast can identify the defendant
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`through his or her IP address. Id. ¶ 5; Ex Parte Appl. at 20.
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`On October 11, 2021, Strike 3 Holdings filed a complaint against the Doe defendant
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`alleging one claim for copyright infringement under the Copyright Act. Compl. On October 20,
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`2021, Strike 3 Holdings filed an ex parte application asking the court to allow it to serve Comcast
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`with a subpoena under Federal Rule of Civil Procedure 45. Ex Parte Appl. Strike 3 Holdings says
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`that the subpoena will be limited to the name and address of the individual/individuals associated
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`with the Doe defendant’s IP address. Id. at 21.
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`III.
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`LEGAL STANDARD
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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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`Northern District of California
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`United States District Court
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`Case 3:21-cv-07970-EMC Document 8 Filed 10/21/21 Page 3 of 7
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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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`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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`IV.
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`ANALYSIS
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`A.
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`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. Compl. ¶¶ 28-47. To download the movie, the Doe
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`defendant had to direct his or her BitTorrent client to download the media file. Id. These facts
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`indicate that the Doe defendant is an identifiable adult who likely is the primary subscriber of the
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`IP address or someone who resides with and is known to the subscriber. Ex Parte Appl. at 13-14.
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`Strike 3 Holdings also has traced each download made to the Doe defendant’s IP address to the
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`Northern District of California, thus giving the Court jurisdiction over the defendant and Strike 3’s
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`United States District Court
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`Case 3:21-cv-07970-EMC Document 8 Filed 10/21/21 Page 4 of 7
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`federal claim. Compl. ¶¶ 8-10.
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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
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`his or her IP address, and his or her IP address was traced to this district. Id. 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
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`motion to dismiss. A plaintiff “must satisfy two requirements to present a prima facie case of
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`direct infringement: (1) [he or she] must show ownership of the allegedly infringed material and
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`(2) [he or she] must demonstrate that the alleged infringers violate at least one exclusive right
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`granted to copyright holders under 17 U.S.C. § 106.” Perfect 10, Inc. v. Amazon.com, Inc., 508
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`F.3d 1146, 1159 (9th Cir. 2007) (citing A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013
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`(9th Cir. 2001)); see 17 U.S.C. § 501(a). Under Section 106, a copyright holder has the exclusive
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`rights to reproduce, distribute, publicly display, perform, and create derivative works of the
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`copyrighted work. Direct copyright infringement does not require intent or any particular state of
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`mind. Fox Broad. Co. Inc. v. Dish Network, LLC, 905 F. Supp. 2d 1088, 1098–99 (C.D. Cal.
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`2012); Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 1367
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`(N.D. Cal. 1995). Strike 3 Holdings alleges that it holds the copyrights for the adult motion
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`pictures that the Doe defendant downloaded (and thus copied) and distributed the movies without
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`its permission. Compl. ¶ 51. Strike 3 Holdings has sufficiently alleged a prima facie claim for
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`copyright infringement.
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`Fourth, Strike 3 Holdings has shown that the discovery it seeks is reasonably likely to lead
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`to identifying information that will permit service of process on the Doe defendant. Strike 3
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`Holdings alleges that Comcast records should identify the Doe defendant. Ex Parte Appl. at 14-
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`15.
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`B.
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`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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`Northern District of California
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`United States District Court
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`Case 3:21-cv-07970-EMC Document 8 Filed 10/21/21 Page 5 of 7
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`party and 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
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`the individuals who infringed upon Strike 3 Holdings’s copyright. See, e.g., Pac. Century Int’l
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`Ltd. v. Does 1–101, No. C-11-02533 (DMR), 2011 WL 5117424, at *2 (N.D. Cal. Oct. 27, 2011);
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`see also IO Grp., Inc. v. Does 1–19, No. C 10-03851 SI, 2011 WL 772909, at *1 (N.D. Cal. Mar.
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`1, 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
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`to 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.
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`If the Doe defendant fails to file a motion for leave to proceed anonymously within 30
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`days after his or her information is disclosed to Strike 3 Holdings’s counsel, this limited protective
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`order will expire. Id. Given the potential embarrassment associated with being publicly accused
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`of having illegally downloaded adult motion pictures, if the Doe defendant includes identifying
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`information within his or her request to proceed anonymously, the Court finds good cause to order
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`the papers filed under seal until the Court has the opportunity to rule on the request. See id. at *3
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`(permitting party to file under seal a declaration with identifying information). If the Doe
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`Case 3:21-cv-07970-EMC Document 8 Filed 10/21/21 Page 6 of 7
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`defendant includes identifying information with his or her request to proceed anonymously and the
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`request is placed under seal, the Court will direct the Doe defendant to submit a copy of the under-
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`seal request to Strike 3 Holdings and will ensure that Strike 3 Holdings has time to respond.
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`V.
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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 67.180.142.99 as follows.
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`1.
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`IT IS HEREBY ORDERED that Strike 3 Holding may immediately serve a Rule
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`45 subpoena on Comcast to obtain the Doe defendant’s true name and addresses. The subpoena
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`must have a copy of this order attached.
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`2.
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`IT IS FURTHER ORDERED that the ISP will have 30 days from the date of
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`service upon them to serve the Doe defendant with a copy of the subpoena and a copy of this
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`order. The ISP may serve the Doe defendant using any reasonable means, including written notice
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`sent to his or her last known address, transmitted either by first-class mail or via overnight service.
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`3.
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`IT IS FURTHER ORDERED that the Doe defendant will have 30 days from the
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`date of service upon him or her to file any motions contesting the subpoena (including a motion to
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`quash or modify the subpoena) with the Court that issued the subpoena. If that 30-day period
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`lapses without the Doe defendant contesting the subpoena, the ISP will have 10 days to produce
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`the information responsive to the subpoena to Strike 3 Holdings.
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`4.
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`IT IS FURTHER ORDERED that the subpoenaed entity must preserve any
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`subpoenaed information pending the resolution of any timely-filed motion to quash.
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`5.
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`IT IS FURTHER ORDERED that the ISP that receives a subpoena pursuant to
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`this order must confer with Strike 3 Holdings and may not assess any charge in advance of
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`providing the information requested in the subpoena. The ISP that receives a subpoena and elects
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`to charge for the costs of production must provide a billing summary and cost reports that serve as
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`a basis for such billing summary and any costs claimed by the ISP.
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`6.
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`IT IS FURTHER ORDERED that Strike 3 Holdings must serve a copy of this
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`order along with any subpoenas issued pursuant to this order to the necessary entities.
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`7.
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`IT IS FURTHER ORDERED that any information disclosed to Strike 3 Holdings
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`Case 3:21-cv-07970-EMC Document 8 Filed 10/21/21 Page 7 of 7
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`in 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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`This order disposes of Docket No. 7.
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`IT IS SO ORDERED.
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`Dated: October 21, 2021
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`______________________________________
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`EDWARD M. CHEN
`United States District Judge
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`Northern District of California
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`United States District Court
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