`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`STRIKE 3 HOLDINGS, LLC,
`
`Plaintiff,
`
`v.
`
`JOHN DOE SUBSCRIBER ASSIGNED
`IP ADDRESS 73.222.246.161,
`
`Defendant.
`
`
`
`Case No. 21-cv-07759-PJH
`
`
`ORDER GRANTING PLAINTIFF’S EX
`PARTE REQUEST TO TAKE EARLY
`DISCOVERY
`
`Re: Dkt. No. 7
`
`
`
`Plaintiff Strike 3 Holdings, LLC (“Strike 3”) owns the copyrights for several adult
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`motion pictures. It alleges that someone—the Doe defendant here—who uses the IP
`
`16
`
`address 73.222.246.161 infringed on those copyrights. Despite its own efforts, Strike 3
`
`17
`
`has not been able to identify the individual associated with that IP address. Strike 3 now
`
`18
`
`asks the court to let it serve a subpoena on non-party Comcast Cable, the Doe
`
`19
`
`defendant’s internet service provider, to learn the Doe defendant’s identity. Because
`
`20
`
`Strike 3 has demonstrated that good cause exists to allow it to serve a subpoena, the
`
`21
`
`court GRANTS the motion.
`
`22
`
`I.
`
`BACKGROUND
`
`23
`
`Strike 3 is the owner of several adult motion pictures distributed through its adult
`
`24
`
`brands Blacked, Blacked Raw, Tushy, and Vixen. Williamson Decl. at ¶ 13 (Dkt. 7-1 at
`
`25
`
`4). Strike 3 holds title to the intellectual property associated with these brands, including
`
`26
`
`the copyrights to each of the motion pictures distributed through the brands’ sites and the
`
`27
`
`trademarks to each of the brands’ names and logos. Williamson Decl. at ¶ 13.
`
`28
`
`Strike 3 alleges the Doe defendant, who uses the Comcast Cable-provided IP
`
`Northern District of California
`United States District Court
`
`
`
`Case 4:21-cv-07759-PJH Document 8 Filed 10/18/21 Page 2 of 7
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`address 73.222.246.161, used the file distribution network known as “BitTorrent” to
`
`illegally download and distribute Strike 3’s copyrighted movies. Through its infringement
`
`detection system, “VXN Scan,” Strike 3 traced copying made over BitTorrent to
`
`defendant’s IP address. See Williamson Decl. and Paige Decl. (Dkt. 7-1). Then, using a
`
`well-accepted geolocation technology, Strike 3 traced the file sharing made to the Doe
`
`defendant’s IP address to a physical address in the Northern District of California,
`
`specifically in San Leandro, California. Kennedy Decl. (Dkt. 7-1 at 31). Strike 3’s
`
`investigator confirmed that an Internet user at the defendant’s IP address engaged in a
`
`BitTorrent transaction that shared certain media files by analyzing a “packet capture”
`
`(“PCAP”) that recorded the transaction. Paige Decl. ¶¶ 14-18 (Dkt. 7-1 at 20). The
`
`media files from the PCAP correspond to Strike 3’s copyrighted material. Stalzer Decl.
`
`(Dkt. 7-1 at 25-26). The defendant “has been recorded infringing 30 movies over an
`
`extended period of time.” Compl. ¶ 4; see also Ex. A (Dkt. 1-1). Strike 3 did not give the
`
`defendant permission or authorization to distribute its copyrighted movies. Strike 3
`
`alleges that Comcast Cable can identify the defendant through his or her IP address.
`
`On October 5, 2021, Strike 3 filed a complaint against the Doe defendant alleging
`
`one claim for copyright infringement under the Copyright Act. Dkt. 1. On October 11,
`
`2021, Strike 3 filed an ex parte motion asking the court to allow it to serve Comcast Cable
`
`with a subpoena under Federal Rule of Civil Procedure 45. Dkt. 7. 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.
`
`22
`
`II.
`
`DISCUSSION
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`A.
`
`Legal Standard
`
`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., Strike 3 Holdings, LLC v. JOHN DOE subscriber
`
`assigned IP address 73.202.244.50, No. 19-CV-01666-LB, 2019 WL 1865928, at *2 (N.D.
`
`2
`
`Northern District of California
`United States District Court
`
`
`
`Case 4:21-cv-07759-PJH Document 8 Filed 10/18/21 Page 3 of 7
`
`
`
`Cal. Apr. 25, 2019); IO Grp., Inc. v. Does 1-65, No. C 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); 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; (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)).
`
`B.
`
`Analysis
`
`1.
`
`Strike 3 Establishes Good Cause for Early discovery
`
`An internet service provider (“ISP”) cannot disclose information correlating the
`
`identity of a user unless authorized to do so by a court order. See 47 U.S.C. §
`
`551(c)(2)(B) (“A cable operator may disclose such information if the disclosure is . . .
`
`made pursuant to a court order authorizing such disclosure[.]”). 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 through
`
`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 4:21-cv-07759-PJH Document 8 Filed 10/18/21 Page 4 of 7
`
`
`
`the ISP.
`
`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. Doe defendant had to direct his or her
`
`BitTorrent client to download the media file. 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.
`
`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 his or her IP address was traced to this district. The IP address
`
`alone is not sufficient for Strike 3 to identify the Doe defendant.
`
`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) (citing A&M Records, Inc. v.
`
`Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001)); see also 17 U.S.C. § 501(a). Under
`
`§ 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 alleges that it holds the copyrights for the adult motion pictures that the Doe
`
`defendant copied and distributed the movies without its permission. Strike 3 has
`
`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 4:21-cv-07759-PJH Document 8 Filed 10/18/21 Page 5 of 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
`
`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 Comcast Cable’s records should identify the Doe defendant.
`
`2.
`
`Protective Order
`
`“[U]nder Rule 26(c), the Court may sua sponte grant a protective order for good
`
`cause shown.” McCoy v. Southwest 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’s copyright. See, e.g., Pacific
`
`Century Intern. Ltd. v. Does 1-101, No. C-11-02533 (DMR), 2011 WL 5117424, at *2
`
`(N.D. Cal. Oct. 27, 2011); see also IO Group, 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 Group, Inc. v. Does 1-19, No. C 10-03851 SI,
`
`5
`
`Northern District of California
`United States District Court
`
`
`
`Case 4:21-cv-07759-PJH Document 8 Filed 10/18/21 Page 6 of 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
`
`2010 WL 5071605, at *2 (N.D. Cal. 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 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.
`
`III.
`
`CONCLUSION
`
`For the foregoing reasons, the court GRANTS Strike 3’s Ex Parte Motion for
`
`Expedited Discovery with respect to JOHN DOE subscriber assigned IP address
`
`73.222.246.161. The court ORDERS as follows.
`
`1. Strike 3 may serve the ISP with a Rule 45 subpoena commanding the ISP to
`
`provide Strike 3 with the true name and address of the Doe defendant to whom the
`
`ISP assigned an IP address as set forth on Exhibit A to the complaint.
`
`2. Strike 3 may also serve a Rule 45 subpoena in the same manner as above on any
`
`service provider that is identified in response to a subpoena as a provider of
`
`Internet services to the Doe defendant.
`
`3. Any ISP so served must serve the Doe defendant with a copy of the subpoena and
`
`a copy of this order within 30 days. 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.
`
`6
`
`Northern District of California
`United States District Court
`
`
`
`Case 4:21-cv-07759-PJH Document 8 Filed 10/18/21 Page 7 of 7
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`4. The Doe defendant may file with the court any motions contesting the subpoena
`
`(including a motion to quash or modify the subpoena) within 30 days from the date
`
`of service upon him or her. If that 30-day period lapses without the Doe defendant
`
`contesting the subpoena, the ISP must produce the information responsive to the
`
`subpoena to Strike 3 within 10 days.
`
`5. The subpoenaed entity must preserve any subpoenaed information pending the
`
`resolution of any timely-filed motion to quash.
`
`6. 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.
`
`7. 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.
`
`16
`
`
`
`IT IS SO ORDERED.
`
`Dated: October 18, 2021
`
`
`
`/s/ Phyllis J. Hamilton
`PHYLLIS J. HAMILTON
`United States District Judge
`
`
`
`
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`7
`
`Northern District of California
`United States District Court
`
`