Case 5:23-cv-06685-EJD Document 8 Filed 03/21/24 Page 1 of 8
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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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 24.6.63.42,
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`Defendant.
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`Case No. 23-cv-06685-EJD
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`ORDER GRANTING APPLICATION
`FOR LEAVE TO SERVE THIRD-
`PARTY SUBPOENA
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`Re: ECF No. 7
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`Plaintiff Strike 3 Holdings, LLC (“Strike 3”), filed this copyright infringement action
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`against an unknown individual (the “Doe Defendant”) who allegedly used BitTorrent to illegally
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`download and distribute Strike 3’s copyrighted adult films. See Compl., ECF No. 1. Strike 3
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`seeks a subpoena to compel third-party Comcast Cable to identify the Doe Defendant, who is
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`associated with the IP address 24.6.63.42, for service of process. See Ex Parte Appl. for Leave to
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`Serve Third-Party Subpoena (“Appl.”), ECF No. 7.
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`Based on Strike 3’s submissions, the Court GRANTS leave to serve a subpoena with
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`specific conditions provided below. Because many courts have raised concerns that Strike 3 could
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`be pursuing potentially innocent ISP account owners who are often embarrassed into early
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`settlements, the identity of the Doe Defendant SHALL be protected unless and until further order
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`by the Court.
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`I.
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`BACKGROUND
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`Strike 3 owns the copyrights for several adult motion pictures that are associated with and
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`distributed through various adult websites. See Compl. ¶¶ 1–3, 43, ECF No. 1; see id. at Exh. A,
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`Case No.: 23-cv-06685-EJD
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`Case 5:23-cv-06685-EJD Document 8 Filed 03/21/24 Page 2 of 8
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`ECF No. 1-1. Using a specialized infringement detection system it developed (the “VXN Scan
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`System”), Strike 3 discovered the IP address of the Doe Defendant who allegedly infringed upon
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`its copyrights. See Compl. ¶¶ 28–29. The Complaint alleges that the Doe Defendant illegally
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`downloaded and distributed 28 motion pictures copyrighted by Strike 3 by using BitTorrent, a
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`system designed to quickly distribute large files over the Internet. See id. ¶¶ 18, 29, 38; see id. at
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`Exh. A.
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`Strike 3 filed this action on December 29, 2023, asserting one claim of direct copyright
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`infringement and seeking an injunction and statutory damages. Id. ¶¶ 48–53. Strike 3 filed the
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`instant Application on January 11, 2024, seeking leave to serve a third-party subpoena on Comcast
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`Cable prior to a Rule 26(f) conference. See Appl.
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`II.
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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. See Fed. R. Civ. P. 26(d). Courts within the
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`Ninth Circuit generally consider whether a plaintiff has shown “good cause.” See, e.g., IO Grp.,
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`Inc. v. Does 1–65, No. 10–4377, 2010 WL 4055667, at *2 (N.D. Cal. Oct. 15, 2010); Semitool,
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`Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275–77 (N.D. Cal. 2002). “Good cause may be
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`found 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:
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`(1) identifies the Doe defendant with sufficient specificity that the court can determine that
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`the defendant is a real person who can be sued in federal court;
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`(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
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`(4) shows that the discovery is reasonably likely to lead to identifying information that will
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`permit service of process.
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`See Columbia Ins. Co. v. seescandy.com (“Seescandy.com”), 185 F.R.D. 573, 578–80 (N.D. Cal.
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`Case No.: 23-cv-06685-EJD
`ORDER GRANTING EX PARTE APPL. TO SERVE THIRD-PARTY SUBP.
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`Northern District of California
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`United States District Court
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`Case 5:23-cv-06685-EJD Document 8 Filed 03/21/24 Page 3 of 8
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`1999) (citations omitted). “[W]here the identity of alleged defendants [is not] known prior to the
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`filing of a complaint[,] the plaintiff should be given an opportunity through discovery to identify
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`the unknown defendants, unless it is clear that discovery would not uncover the identities, or that
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`the complaint would be dismissed on other grounds.” Wakefield v. Thompson, 177 F.3d 1160,
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`1163 (9th Cir. 1999).
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`III. DISCUSSION
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`A.
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`Strike 3’s Litigation History
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`As this Court has done in its prior orders, before turning to the merits of the application,
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`the Court first provides an overview of Strike 3’s litigation history as useful context for the Doe
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`Defendant or any other party who may receive this Order. See Strike 3 Holdings, LLC v. John
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`Doe Subscriber Assigned IP Address 73.231.214.39, No. 23-CV-05468-EJD, 2023 WL 8458262,
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`at *2 (N.D. Cal. Nov. 27, 2023); Strike 3 Holdings, LLC v. John Doe Subscriber Assigned IP
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`Address 174.160.76.56, No. 24-CV-00440-EJD, 2024 WL 950171, at *2 (N.D. Cal. Mar. 5, 2024).
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`Given the informational disparity and matrix of undesirable options facing an ISP subscriber
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`served with such a complaint as the one filed in this action, the Court hopes the following context
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`will reduce any prejudice that individual may face.
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`Strike 3 has filed thousands of similar lawsuits and requests to subpoena subscriber
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`information from ISPs, such as Comcast Cable. See, e.g., Strike 3 Holdings, LLC v. Doe, No. 23-
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`CV-04339-RS, 2023 WL 6542326, at *2 (N.D. Cal. Sept. 22, 2023) (collecting cases). At least
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`one federal judge has also openly characterized Strike 3 as a “copyright troll” that uses its
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`“swarms of lawyers [to] hound people who allegedly watch their content through BitTorrent.”
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`Strike 3 Holdings, LLC v. Doe, 351 F. Supp. 3d 160, 161–62 (D.D.C. 2018) (describing the
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`copyright troll’s strategy as “file a deluge of complaints; ask the court to compel disclosure of the
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`account holders; settle as many claims as possible; abandon the rest”), rev’d and remanded, 964
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`F.3d 1203 (D.C. Cir. 2020); see also, e.g., Strike 3 Holdings, LLC v. John Doe (73.225.38.130),
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`No. C17-1731, 2020 WL 531996, at *6 & n.6 (W.D. Wash. Feb. 3, 2020) (granting summary
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`judgment and attorney fees in favor of Doe defendant and against Strike 3 and noting that “[a]
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`copyright troll’s success derives ‘not from the Copyright Act, but from the law of large
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`numbers’”) (citation omitted).
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`The Court recognizes that in practice, once subscribers are alerted that they are being sued
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`for uploading pornography, they may be pressured to quickly settle the matter to avoid the risk of
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`having their names publicly associated with the lawsuit or the costs of hiring an expensive
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`copyright legal specialist. See Strike 3 Holdings, LLC, 2023 WL 6542326, at *2; see also Strike 3
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`Holdings, 351 F. Supp. 3d at 162 (“[O]nce the ISP outs the subscriber, permitting them to be
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`served as the defendant, any future Google search of their name will turn-up associations with the
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`websites Vixen, Blacked, Tushy, and Blacked Raw.”). As a result, many innocent ISP subscribers
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`would be pressured to settle, even though several courts have observed that “ISP subscribers may
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`not be the individuals who infringed upon Strike 3’s copyright.” Strike 3 Holdings, LLC v. Doe
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`Subscriber Assigned IP Address 24.6.34.109, No. 23-CV-01977, 2023 WL 4003723, at *3 (N.D.
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`Cal. May 9, 2023) (collecting cases); see also Strike 3 Holdings, 351 F. Supp. 3d at 162
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`(“[I]nferring the person who pays the cable bill illegally downloaded a specific file is even less
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`trustworthy than inferring they watched a specific TV show.”). Moreover, if a defendant moves to
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`confront a “copyright troll” or exhibits any serious resistance, the company can simply drop the
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`case and avoid any unfavorable judicial rulings. See Strike 3 Holdings, 351 F. Supp. 3d at 162
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`(“These serial litigants drop cases at the first sign of resistance, preying on low-hanging fruit and
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`staying one step ahead of any coordinated defense.”).
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`B.
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`Good Cause
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`Turning to the merits of Strike 3’s ex parte application, the Court finds that Strike 3 has
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`demonstrated good cause for this early discovery under the four Seescandy.com factors.
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`First, the Court finds that Strike 3 has identified the Doe Defendant with sufficient
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`specificity for the Court to determine that the Doe Defendant is a real person who may be sued in
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`federal court. The Complaint alleges that BitTorrent’s protocols require the activity of a human
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`user to share movies within the BitTorrent network. Compl. ¶¶ 18–27. Strike 3 also used “IP
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`address geolocation technology” offered by the company Maxmind Inc. to trace the IP address that
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`Northern District of California
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`Strike 3 procured—through its VXN Scan System—to a physical location within this district. Id.
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`¶¶ 9, 29.
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`Second, Strike 3 has described the steps it took to locate and identify the Doe Defendant.
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`See Appl. 10. In addition to the geolocation and infringement detection technology already
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`described, Strike 3 has attempted to associate the IP address with a defendant individual using
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`various web search tools and consultations with computer investigators and cyber security experts.
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`See id.
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`Third, Strike 3 has preliminarily demonstrated that its action can withstand a motion to
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`dismiss. “Plaintiffs must satisfy two requirements to present a prima facie case of direct
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`infringement: (1) they must show ownership of the allegedly infringed material and (2) they must
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`demonstrate that the alleged infringers violate at least one exclusive right granted to copyright
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`holders under 17 U.S.C. § 106.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th
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`Cir. 2007). A copyright holder’s rights under § 106 include the exclusive rights to reproduce,
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`distribute, publicly display, perform, and create derivative works of the copyrighted work. See 17
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`U.S.C. § 106. Here, Strike 3 alleges that it owns the copyrights to adult movies that the Doe
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`Defendant downloaded, copied, and distributed without permission. See Compl. ¶¶ 29, 44, 46; see
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`id. at Exh. A. Accepting these allegations as true, the Court finds that the Complaint may
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`withstand a motion to dismiss.
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`Fourth and finally, Strike 3 has shown that the discovery it seeks is reasonably likely to
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`lead to identifying information that will permit service of process on the Doe Defendant.
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`Specifically, Strike 3 only seeks the name and address of the Doe Defendant and has represented
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`that the “only entity that can correlate the IP address to its subscriber and identify Defendant as the
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`person assigned the IP address is Defendant’s ISP.” Appl. 6 (citing BMG Rts. Mgmt. (US) LLC v.
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`Cox Commc’ns, Inc., 881 F.3d 293, 299 (4th Cir. 2018) (“[O]nly the ISP can match the IP address
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`to the subscriber’s identity.”)).
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`In sum, the Court finds that Strike 3 has satisfied all four Seescandy.com factors and
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`presented good cause for its requested expedited discovery.
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`Case 5:23-cv-06685-EJD Document 8 Filed 03/21/24 Page 6 of 8
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`C.
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`Protective Order
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`Even though Strike 3 is entitled to a pre-discovery subpoena, the Court retains authority
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`under Federal Rule of Civil Procedure 26(c) to grant a sua sponte protective order for good cause.
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`See, e.g., McCoy v. Sw. Airlines Co., 211 F.R.D. 381, 385 (C.D. Cal. 2002); Fed. R. Civ. P. 26(c).
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`In this case, the Court finds that there is good cause to implement limited protective measures to
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`shield a potentially innocent and unwitting ISP subscriber from undue prejudice. Strike 3 does not
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`oppose establishing procedural safeguards to respect privacy interests. See Appl. 3, 12–13.
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`Consistent with the protective measures undertaken by many other courts in this district
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`and its own prior orders, the Court will employ procedures to treat as confidential any personal
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`information regarding the Doe Defendant that Comcast Cable produces to Strike 3. The Court
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`will also permit and consider any request by the Doe Defendant to continue to proceed
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`anonymously under a “Doe” pseudonym.
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`IV. CONCLUSION
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`Based on the foregoing, the Court GRANTS Strike 3’s Ex Parte Application with respect
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`to Defendant Doe, Subscriber Assigned IP Address 24.6.63.42, as follows:
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`1. Strike 3 MAY serve a Rule 45 subpoena on Comcast Cable (“ISP”), commanding the
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`ISP to provide Strike 3 with the true name and address of the Doe Defendant to whom
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`the ISP assigned an IP address as set forth on Exhibit A to the Complaint. Strike 3
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`SHALL attach a copy of this Order to any such subpoena.
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`a. Strike 3 MAY 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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`b. If the ISP qualifies as a “cable operator” per 47 U.S.C. § 522(5), then it shall
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`comply with 47 U.S.C. § 551(c)(2)(B) by sending a copy of this Order to the Doe
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`Defendant.
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`2. Within thirty (30) days of being served by Strike 3, the ISP SHALL serve the Doe
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`Defendant subscriber assigned the IP address 24.6.63.42 with a copy of the subpoena
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`and this Order.
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`3. Within thirty (30) days after the Doe Defendant has been served with the subpoena and
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`this Order, the Doe Defendant MAY file a motion to contest the subpoena, including a
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`motion to quash or modify the subpoena. The Doe Defendant MAY appear and
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`proceed before this Court under a pseudonym by requesting that their personal
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`identifying information be filed under seal.
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`a. If the Doe Defendant does not contest the subpoena within thirty days, the ISP may
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`produce the information responsive to Strike 3’s subpoena within ten (10) days.
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`4. Strike 3 MAY only use the information disclosed in response to its subpoena for the
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`purpose of protecting and enforcing its rights as set forth in the Complaint. Strike 3
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`MAY NOT publicly disclose the information obtained from its subpoena without leave
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`of this Court. Any reference to the Doe Defendant’s identity SHALL be redacted and
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`filed under seal until further notice.
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`5. Comcast Cable or any other ISP that receives a subpoena pursuant to this Order
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`SHALL confer with Strike 3 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
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`and elects to charge for the costs of production must provide a billing summary and
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`cost reports that serve as a basis for the billing summary and costs claimed by the ISP.
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`6. Comcast Cable or any other ISP that receives a subpoena pursuant to this Order
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`SHALL preserve any subpoenaed information pending the resolution of any timely
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`filed motion to dismiss.
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`IT IS SO ORDERED.
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`Dated: March 21, 2024
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`Case No.: 23-cv-06685-EJD
`ORDER GRANTING EX PARTE APPL. TO SERVE THIRD-PARTY SUBP.
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`EDWARD J. DAVILA
`United States District Judge
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