Case 4:21-cv-07759-PJH Document 8 Filed 10/18/21 Page 1 of 7
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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 73.222.246.161,
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`Defendant.
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`Case No. 21-cv-07759-PJH
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`ORDER GRANTING PLAINTIFF’S EX
`PARTE REQUEST TO TAKE EARLY
`DISCOVERY
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`Re: Dkt. No. 7
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`Plaintiff Strike 3 Holdings, LLC (“Strike 3”) owns the copyrights for several adult
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`motion pictures. It alleges that someone—the Doe defendant here—who uses the IP
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`address 73.222.246.161 infringed on those copyrights. Despite its own efforts, Strike 3
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`has not been able to identify the individual associated with that IP address. Strike 3 now
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`asks the court to let it serve a subpoena on non-party Comcast Cable, the Doe
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`defendant’s internet service provider, to learn the Doe defendant’s identity. Because
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`Strike 3 has demonstrated that good cause exists to allow it to serve a subpoena, the
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`court GRANTS the motion.
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`I.
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`BACKGROUND
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`Strike 3 is the owner of several adult motion pictures distributed through its adult
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`brands Blacked, Blacked Raw, Tushy, and Vixen. Williamson Decl. at ¶ 13 (Dkt. 7-1 at
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`4). Strike 3 holds title to the intellectual property associated with these brands, including
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`the copyrights to each of the motion pictures distributed through the brands’ sites and the
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`trademarks to each of the brands’ names and logos. Williamson Decl. at ¶ 13.
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`Strike 3 alleges the Doe defendant, who uses the Comcast Cable-provided IP
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`Northern District of California
`United States District Court
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`Case 4:21-cv-07759-PJH Document 8 Filed 10/18/21 Page 2 of 7
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`address 73.222.246.161, used the file distribution network known as “BitTorrent” to
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`illegally download and distribute Strike 3’s copyrighted movies. Through its infringement
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`detection system, “VXN Scan,” Strike 3 traced copying made over BitTorrent to
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`defendant’s IP address. See Williamson Decl. and Paige Decl. (Dkt. 7-1). Then, using a
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`well-accepted geolocation technology, Strike 3 traced the file sharing made to the Doe
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`defendant’s IP address to a physical address in the Northern District of California,
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`specifically in San Leandro, California. Kennedy Decl. (Dkt. 7-1 at 31). Strike 3’s
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`investigator confirmed that an Internet user at the defendant’s IP address engaged in a
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`BitTorrent transaction that shared certain media files by analyzing a “packet capture”
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`(“PCAP”) that recorded the transaction. Paige Decl. ¶¶ 14-18 (Dkt. 7-1 at 20). The
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`media files from the PCAP correspond to Strike 3’s copyrighted material. Stalzer Decl.
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`(Dkt. 7-1 at 25-26). The defendant “has been recorded infringing 30 movies over an
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`extended period of time.” Compl. ¶ 4; see also Ex. A (Dkt. 1-1). Strike 3 did not give the
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`defendant permission or authorization to distribute its copyrighted movies. Strike 3
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`alleges that Comcast Cable can identify the defendant through his or her IP address.
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`On October 5, 2021, Strike 3 filed a complaint against the Doe defendant alleging
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`one claim for copyright infringement under the Copyright Act. Dkt. 1. On October 11,
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`2021, Strike 3 filed an ex parte motion asking the court to allow it to serve Comcast Cable
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`with a subpoena under Federal Rule of Civil Procedure 45. Dkt. 7. Strike 3 says that the
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`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.
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`II.
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`DISCUSSION
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`A.
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`Legal Standard
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`A court may authorize early discovery before the Rule 26(f) conference for the
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`parties’ and witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d).
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`Courts within the Ninth Circuit generally consider whether a plaintiff has shown “good
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`cause” for early discovery. See, e.g., Strike 3 Holdings, LLC v. JOHN DOE subscriber
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`assigned IP address 73.202.244.50, No. 19-CV-01666-LB, 2019 WL 1865928, at *2 (N.D.
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`Northern District of California
`United States District Court
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`Case 4:21-cv-07759-PJH Document 8 Filed 10/18/21 Page 3 of 7
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`Cal. Apr. 25, 2019); IO Grp., Inc. v. Does 1-65, No. C 10-4377 SC, 2010 WL 4055667, at
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`*2 (N.D. Cal. Oct. 15, 2010); Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273,
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`275-77 (N.D. Cal. 2002); Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 202 F.R.D.
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`612, 613-14 (D. Ariz. 2001) (collecting cases and standards). “Good cause may be found
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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
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`Doe defendant through early discovery, courts examine whether the plaintiff: (1) identifies
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`the Doe defendant with sufficient specificity that the court can determine that the
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`defendant is a real person who can be sued in federal court; (2) recounts the steps taken
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`to locate and identify the defendant; (3) demonstrates that the action can withstand a
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`motion to dismiss; and (4) shows that the discovery is reasonably likely to lead to
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`identifying information that will permit service of process. Columbia Ins. Co. v.
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`seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999) (citations omitted). “‘[W]here
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`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
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`defendants, unless it is clear that discovery would not uncover the identities, or that the
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`complaint would be dismissed on other grounds.’” Wakefield v. Thompson, 177 F.3d
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`1160, 1163 (9th Cir. 1999) (quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.
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`1980)).
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`B.
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`Analysis
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`1.
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`Strike 3 Establishes Good Cause for Early discovery
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`An internet service provider (“ISP”) cannot disclose information correlating the
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`identity of a user unless authorized to do so by a court order. See 47 U.S.C. §
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`551(c)(2)(B) (“A cable operator may disclose such information if the disclosure is . . .
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`made pursuant to a court order authorizing such disclosure[.]”). Strike 3 has made a
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`sufficient showing under each of the four seescandy factors listed above to establish
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`good cause to permit it to engage in early discovery to identify the Doe defendant through
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`Northern District of California
`United States District Court
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`Case 4:21-cv-07759-PJH Document 8 Filed 10/18/21 Page 4 of 7
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`the ISP.
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`First, Strike 3 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
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`alleges that the Doe defendant downloaded Strike 3’s copyrighted adult motion pictures
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`and distributed them over the BitTorrent network. Doe defendant had to direct his or her
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`BitTorrent client to download the media file. These facts indicate that the Doe defendant
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`is an identifiable adult who likely is the primary subscriber of the IP address or someone
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`who resides with and is known to the subscriber. Strike 3 also has traced each download
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`made to the Doe defendant’s IP address to the Northern District of California, thus giving
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`the court jurisdiction over the defendant and Strike 3’s federal claim.
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`Second, Strike 3 has recounted the steps taken to locate and identify the Doe
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`defendant. The Doe defendant downloaded and distributed Strike 3’s movies through his
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`or her IP address, and his or her IP address was traced to this district. The IP address
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`alone is not sufficient for Strike 3 to identify the Doe defendant.
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`Third, Strike 3 has demonstrated that its copyright claim could withstand a motion
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`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
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`material and (2) [he or she] must demonstrate that the alleged infringers violate at least
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`one exclusive right granted to copyright holders under 17 U.S.C. § 106.” Perfect 10, Inc.
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`v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th Cir. 2007) (citing A&M Records, Inc. v.
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`Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001)); see also 17 U.S.C. § 501(a). Under
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`§ 106, a copyright holder has the exclusive rights to reproduce, distribute, publicly
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`display, perform, and create derivative works of the copyrighted work. Direct copyright
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`infringement does not require intent or any particular state of mind. Fox Broad. Co., Inc.
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`v. Dish Network, LLC, 905 F. Supp. 2d 1088, 1098-99 (C.D. Cal. 2012); Religious Tech.
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`Ctr. v. Netcom On-Line Commc'n Servs., Inc., 907 F. Supp. 1361, 1367 (N.D. Cal. 1995).
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`Strike 3 alleges that it holds the copyrights for the adult motion pictures that the Doe
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`defendant copied and distributed the movies without its permission. Strike 3 has
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`Northern District of California
`United States District Court
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`Case 4:21-cv-07759-PJH Document 8 Filed 10/18/21 Page 5 of 7
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`sufficiently alleged a prima facie claim for copyright infringement.
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`Fourth, Strike 3 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
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`3 alleges that Comcast Cable’s records should identify the Doe defendant.
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`2.
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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
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`cause shown.” McCoy v. Southwest Airlines Co., Inc., 211 F.R.D. 381, 385 (C.D. Cal.
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`2002). The court issues the limited protective order described below because the ISP
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`subscriber may be an innocent third party, and the subject matter of the suit deals with
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`sensitive and personal matters.
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`Here, as has been discussed by other courts in this district, the ISP subscribers
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`may not be the individuals who infringed upon Strike 3’s copyright. See, e.g., Pacific
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`Century Intern. Ltd. v. Does 1-101, No. C-11-02533 (DMR), 2011 WL 5117424, at *2
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`(N.D. Cal. Oct. 27, 2011); see also IO Group, Inc. v. Does 1-19, No. C 10-03851 SI, 2011
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`WL 772909, at *1 (N.D. Cal. Mar. 1, 2011) (granting the plaintiff additional time to identify
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`and serve the true defendant where a subscriber asserted that he did not infringe
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`plaintiff’s work, suggesting that someone else used his IP address to infringe the
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`plaintiff’s work, and the plaintiff claimed that it needed to take third-party discovery from
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`the subscriber to try to identify who actually used the subscriber’s IP address to allegedly
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`infringe the plaintiff’s work).
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`Additionally, requests for pseudonymity have been granted when anonymity is
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`necessary to preserve privacy in a matter of a sensitive and highly personal nature. See
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`Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000). An
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`allegation that an individual illegally downloaded adult motion pictures likely goes to
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`matters of a sensitive and highly personal nature, including one’s sexuality.
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`Accordingly, the court issues a protective order to the limited extent that any
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`information regarding the Doe defendant released to Strike 3 by the ISP will be treated as
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`confidential for a limited duration. See IO Group, Inc. v. Does 1-19, No. C 10-03851 SI,
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`Northern District of California
`United States District Court
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`Case 4:21-cv-07759-PJH Document 8 Filed 10/18/21 Page 6 of 7
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`2010 WL 5071605, at *2 (N.D. Cal. 2010). Specifically, Strike 3 must not publicly
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`disclose that information until the Doe defendant has the opportunity to file a motion with
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`this court to be allowed to proceed in this litigation anonymously and that motion is ruled
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`on by the court. Id. If the Doe defendant fails to file a motion for leave to proceed
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`anonymously within 30 days after his or her information is disclosed to Strike 3’s counsel,
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`this limited protective order will expire. Id. Given the potential embarrassment
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`associated with being publicly accused of having illegally downloaded adult motion
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`pictures, if the Doe defendant includes identifying information within his or her request to
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`proceed anonymously, the court finds good cause to order the papers filed under seal
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`until the court has the opportunity to rule on the request. See id. at 3 (permitting party to
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`file under seal a declaration with identifying information). If the Doe defendant includes
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`identifying information with his or her request to proceed anonymously and the request is
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`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 and will ensure that Strike 3 has time to respond.
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`III.
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`CONCLUSION
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`For the foregoing reasons, the court GRANTS Strike 3’s Ex Parte Motion for
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`Expedited Discovery with respect to JOHN DOE subscriber assigned IP address
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`73.222.246.161. The court ORDERS as follows.
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`1. Strike 3 may serve the ISP with a Rule 45 subpoena commanding the ISP to
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`provide Strike 3 with the true name and address of the Doe defendant to whom the
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`ISP assigned an IP address as set forth on Exhibit A to the complaint.
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`2. Strike 3 may also serve a Rule 45 subpoena in the same manner as above on any
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`service provider that is identified in response to a subpoena as a provider of
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`Internet services to the Doe defendant.
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`3. Any ISP so served must serve the Doe defendant with a copy of the subpoena and
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`a copy of this order within 30 days. The ISP may serve the Doe defendant using
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`any reasonable means, including written notice sent to his or her last known
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`address, transmitted either by first-class mail or via overnight service.
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`Northern District of California
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`Case 4:21-cv-07759-PJH Document 8 Filed 10/18/21 Page 7 of 7
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`4. The Doe defendant may file with the court any motions contesting the subpoena
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`(including a motion to quash or modify the subpoena) within 30 days from the date
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`of service upon him or her. If that 30-day period lapses without the Doe defendant
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`contesting the subpoena, the ISP must produce the information responsive to the
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`subpoena to Strike 3 within 10 days.
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`5. The subpoenaed entity must preserve any subpoenaed information pending the
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`resolution of any timely-filed motion to quash.
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`6. The ISP that receives a subpoena pursuant to this order must confer with Strike 3
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`and may not assess any charge in advance of providing the information requested
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`in the subpoena. The ISP that receives a subpoena and elects to charge for the
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`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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`7. Any information disclosed to Strike 3 in response to a Rule 45 subpoena may be
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`used by Strike 3 solely for the purpose of protecting Strike 3’s rights as set forth in
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`its complaint.
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`IT IS SO ORDERED.
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`Dated: October 18, 2021
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`/s/ Phyllis J. Hamilton
`PHYLLIS J. HAMILTON
`United States District Judge
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`Northern District of California
`United States District Court
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