`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`San Francisco Division
`
`STRIKE 3 HOLDINGS, LLC,
`
`Plaintiff,
`
`v.
`
`JOHN DOE SUBSCRIBER ASSIGNED IP
`ADDRESS 24.6.131.213,
`
`Defendant.
`
`
`
`Case No. 23-cv-06035-LB
`
`
`ORDER GRANTING EX PARTE
`APPLICATION FOR LEAVE TO
`SERVE THIRD-PARTY SUBPOENA
`
`Re: ECF No. 8
`
`The plaintiff Strike 3 Holdings owns the copyrights for several adult motion pictures.1 It
`
`INTRODUCTION
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`Northern District of California
`
`United States District Court
`
`19
`
`alleges that someone — the Doe defendant here — who uses the IP address 24.6.131.213
`
`20
`
`21
`
`infringed on those copyrights.2 Despite its own efforts, Strike 3 has not been able to identify the
`
`individual associated with that IP address.3 Strike 3 now asks the court to let it serve a subpoena
`
`22
`
`on non-party Comcast Cable, the Doe defendant’s internet-service provider (ISP), to learn the Doe
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`1 Appl. – 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 Compl. – ECF No. 1 at 2 (¶¶ 4–5).
`3 Appl. – ECF No. 8 at 18.
`
`ORDER – 23-cv-06035-LB
`
`
`
`Case 3:23-cv-06035-LB Document 9 Filed 12/22/23 Page 2 of 8
`
`
`
`defendant’s identity.4 Because Strike 3 has demonstrated that good cause exists to allow it to serve
`
`a subpoena, the court grants the motion.
`
`
`
`STATEMENT
`
`Strike 3 is the owner of several adult motion pictures distributed through its adult brands
`
`Blacked, Tushy, Vixen, Tushy Raw, Blacked Raw, MILFY, and Slayed.5 The motion pictures are
`
`registered with the United States Copyright Office.6
`
`The Doe defendant, who uses the Comcast Cable-provided IP address 24.6.131.213, used the
`
`file distribution network known as “BitTorrent” to illegally download and distribute Strike 3’s
`
`copyrighted movies.7 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.8 Using
`
`a proprietary infringement detection system called “VXN Scan,” Strike 3 established direct
`
`“TCP/IP” connections with the defendant’s IP address while the defendant was using BitTorrent.9
`
`VXN Scan downloaded media files containing a digital copy of Strike 3’s copyrighted movies
`
`from the defendant.10 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.11 The defendant “has been recorded infringing 57 movies over an
`
`extended period of time.”12 Strike 3 did not give the defendant authorization to distribute its
`
`
`4 See generally Appl. – ECF No. 8.
`5 Compl. – ECF No. 1 at 1–2 (¶¶ 2–3).
`6 Id. at 6 (¶ 46).
`7 Id. at 2 (¶¶ 4–5).
`8 Id. (¶ 9).
`9 Id. at 5 (¶¶ 28–30).
`10 Id. (¶¶ 31–32).
`11 Id. at 5–6 (¶ 36).
`12 Id. at 2 (¶ 4).
`
`ORDER – 23-cv-06035-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 3:23-cv-06035-LB Document 9 Filed 12/22/23 Page 3 of 8
`
`
`
`copyrighted movies.13 Strike 3 alleges that Comcast Cable can identify the defendant through his
`
`or her IP address.14
`
`On November 21, 2023, Strike 3 filed a complaint against the Doe defendant alleging one
`
`claim for copyright infringement under the Copyright Act.15 On December 8, 2023, Strike 3 filed
`
`an ex parte application asking the court to allow it to serve Comcast Cable with a subpoena under
`
`Federal Rule of Civil Procedure 45.16 Strike 3 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
`
`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,
`
`
`13 Compl. – ECF No. 1 at 6 (¶ 44).
`14 Id. at 2 (¶ 5).
`15 Id. at 6‒7 (¶¶ 48–52).
`16 Appl. – ECF No. 8 at 10.
`17 Id.
`
`ORDER – 23-cv-06035-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 3:23-cv-06035-LB Document 9 Filed 12/22/23 Page 4 of 8
`
`
`
`(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).
`
`
`
`1. Strike 3 Establishes Good Cause for Early Discovery
`
`ANALYSIS
`
`Strike 3 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 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’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 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.20
`
`Second, Strike 3 has recounted the steps taken to locate and identify the Doe defendant. The
`
`Doe defendant downloaded and distributed Strike 3’s movies through his or her IP address, and
`
`
`18 Compl. – ECF No. 1 at 2 (¶ 4).
`19 Appl. – ECF No. 8 at 16.
`20 Compl. – ECF No. 1 at 2–3 (¶¶ 8–11).
`
`ORDER – 23-cv-06035-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 3:23-cv-06035-LB Document 9 Filed 12/22/23 Page 5 of 8
`
`
`
`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.22
`
`Third, Strike 3 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); 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. 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 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.23 Strike 3 has
`
`sufficiently alleged a prima facie claim for copyright infringement.
`
`Fourth, Strike 3 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 alleges that the Doe
`
`Defendant’s ISP, Comcast Cable, can identify the Doe defendant through his or her IP address.24
`
`
`
`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., 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.
`
`
`21 Compl. – ECF No. 1 at 2 (¶¶ 9–10).
`22 Appl. – ECF No. 8 at 14.
`23 Compl. – ECF No. 1 at 6 (¶¶ 44, 46).
`24 Id. at 2 (¶ 5).
`
`ORDER – 23-cv-06035-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 3:23-cv-06035-LB Document 9 Filed 12/22/23 Page 6 of 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
`
`Here, as has been discussed by other courts in this district, the ISP subscribers may not be the
`
`individuals who infringed upon Strike 3’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 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. Dec. 7, 2010). Specifically, Strike 3 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’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
`
`ORDER – 23-cv-06035-LB
`
`6
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:23-cv-06035-LB Document 9 Filed 12/22/23 Page 7 of 8
`
`
`
`direct the Doe defendant to submit a copy of the under-seal request to Strike 3 and will ensure that
`
`Strike 3 has time to respond.
`
`
`
`CONCLUSION
`
`The court GRANTS Strike 3’s Ex Parte Motion for Expedited Discovery with respect to
`
`JOHN DOE subscriber assigned IP address 24.6.131.213 as follows.
`
`1. IT IS HEREBY ORDERED that Strike 3 Holding may immediately serve a Rule 45
`
`subpoena on Comcast Cable 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.
`
`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 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 must serve a copy of this order along with any
`
`subpoenas issued pursuant to this order to the necessary entities.
`
`ORDER – 23-cv-06035-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 3:23-cv-06035-LB Document 9 Filed 12/22/23 Page 8 of 8
`
`
`
`7. IT IS FURTHER ORDERED that any information disclosed to Strike 3 in response to a
`
`Rule 45 subpoena may be used by Strike 3 solely for the purpose of protecting Strike 3’s rights as
`
`set forth in its complaint.
`
`IT IS SO ORDERED.
`
`Dated: December 22, 2023
`
`
`
`
`
`______________________________________
`
`LAUREL BEELER
`United States Magistrate Judge
`
`ORDER – 23-cv-06035-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
`
`