Case 5:24-cv-00989-EJD Document 8 Filed 03/29/24 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 98.47.46.165,
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`Defendant.
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`Case No. 24-cv-00989-EJD
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`ORDER GRANTING APPLICATION
`FOR LEAVE TO FILE THIRD PARTY
`SUBPOENA
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`Re: ECF No. 7
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`Plaintiff, Strike 3 Holdings, LLC (“Strike 3”), filed this action against an unknown
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`individual who allegedly used BitTorrent to illegally download and distribute Strike 3’s
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`copyrighted adult films. Strike 3 now seeks a subpoena to compel non-party Comcast Cable to
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`identify this unknown individual associated with the IP address 98.47.46.165. Ex Parte Appl. for
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`Leave to Serve a 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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`Plaintiff Strike 3 Holdings, LLC owns the copyrights for several adult motion pictures that
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`are associated with and distributed through various adult websites. Compl. ¶¶ 1–3, ECF No. 1.
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`Using a specialized infringement detection system it developed, Strike 3 discovered the IP address
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`of the Doe Defendant who allegedly infringed upon its copyrights. Id. ¶¶ 28–29. Specifically, the
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`Northern District of California
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`United States District Court
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`Case 5:24-cv-00989-EJD Document 8 Filed 03/29/24 Page 2 of 7
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`Complaint alleges that the Defendant used BitTorrent’s file network to illegally download and
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`distribute about twenty-four (24) of Strike 3’s copyrighted material. Id. ¶¶ 29, 38; see also id.,
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`Ex. A.
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`On January 20, 2024, Strike 3 filed the Complaint in this case, asserting one claim of direct
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`copyright infringement and seeking an injunction and statutory damages. Id. at 7–8.
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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. 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, 2010 WL 4055667, at *2 (N.D. Cal. Oct. 15, 2010); Semitool, Inc. v. Tokyo
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`Electron Am., Inc., 208 F.R.D. 273, 275–77 (N.D. Cal. 2002). “Good cause may be found where
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`the need for expedited discovery, in consideration of the administration of justice, outweighs the
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`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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`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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`Case 5:24-cv-00989-EJD Document 8 Filed 03/29/24 Page 3 of 7
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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 believes that an overview of Strike 3’s litigation history would provide useful context
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`for the Doe Defendant or any other party who may receive this Order. See Strike 3 Holdings, LLC
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`v. John Doe Subscriber Assigned IP Address 73.231.214.39, No. 5:23-CV-05468-EJD, 2023 WL
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`8458262, at *1 (N.D. Cal. Nov. 27, 2023). Especially given the informational disparity and matrix
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`of undesirable options facing an ISP subscriber served with such a complaint, this context will
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`hopefully reduce the 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).
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`In practice, once subscribers are alerted that they are being sued for uploading
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`pornography, they may be pressured to quickly settle the matter to avoid the risk of having their
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`names publicly associated with the lawsuit or the costs of hiring an expensive copyright legal
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`specialist. See Strike 3 Holdings, LLC, 2023 WL 6542326, at *2; see also Strike 3 Holdings, 351
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`F. Supp. 3d at 162 (“[O]nce the ISP outs the subscriber, permitting them to be served as the
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`defendant, any future Google search of their name will turn-up associations with the websites
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`Vixen, Blacked, Tushy, and Blacked Raw.”). As a result, many innocent ISP subscribers would be
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`pressured to settle, even though several courts have observed that “ISP subscribers may not be the
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`individuals who infringed upon Strike 3’s copyright.” Strike 3 Holdings, LLC v. Doe, No. 3:23-
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`CV-01977-LB, 2023 WL 4003723, at *3 (N.D. Cal. May 9, 2023) (collecting cases); see also
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`Case 5:24-cv-00989-EJD Document 8 Filed 03/29/24 Page 4 of 7
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`Strike 3 Holdings, 351 F. Supp. 3d at 162 (“[I]nferring the person who pays the cable bill illegally
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`downloaded a specific file is even less trustworthy than inferring they watched a specific TV
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`show.”). Moreover, if a defendant moves to confront a “copyright troll” or exhibits any serious
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`resistance, the company can simply drop the case and avoid any unfavorable judicial rulings. See
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`Strike 3 Holdings, 351 F. Supp. 3d at 162 (“These serial litigants drop cases at the first sign of
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`resistance, preying on low-hanging fruit and 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
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`Maxmind geolocation technology to trace the IP address it procured through its VXN Scan
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`detection software to a geographic location within this district. Id. ¶ 9.
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`Second, Strike 3 has recounted the steps it took to locate and identify the Doe Defendant.
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`In addition to the geolocation and infringement detection technology already described, Strike 3
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`has attempted to associate the IP address with a defendant individual using various web search
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`tools and consultations with computer investigators and cyber security experts. Appl. 10.
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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. 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. Compl. ¶¶ 29, 44. Accepting
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`these allegations as true, the Court finds that the Complaint may withstand a motion to dismiss.
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`Finally, Strike 3 has shown that the discovery it seeks is reasonably likely to lead to
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`identifying information that will permit service of process on the Doe Defendant. Specifically,
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`Strike 3 only seeks the name and address of the Doe Defendant and has represented that the “only
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`entity that can correlate the IP address to its subscriber and identify Defendant as the person
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`assigned the IP address is Defendant’s ISP.” Appl. 6 (citing BMG Rts. Mgmt. (US) LLC v. Cox
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`Commc’ns, Inc., 881 F.3d 293, 299 (4th Cir. 2018) (“[O]nly the ISP can match the IP address to
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`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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`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 potential innocent and unwitting ISP subscriber from undue prejudice. Strike 3 does not
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`oppose establishing procedural safeguards to respect privacy interests. Appl. 12–13.
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`Consistent with the protective measures undertaken by many other courts in this district,
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`the Court will employ procedures to treat as confidential any personal information regarding the
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`Doe Defendant that Comcast Cable produces to Strike 3. The Court will also permit and consider
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`any request by the Doe Defendant to proceed anonymously under a 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 98.47.46.165, 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 Defendant to whom the
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`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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`Case 5:24-cv-00989-EJD Document 8 Filed 03/29/24 Page 6 of 7
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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 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
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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 98.47.46.165 with a copy of the subpoena
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`and this Order.
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`3. Within thirty (30) days after he or she has been served with the subpoena and this
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`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. All references 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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`Case 5:24-cv-00989-EJD Document 8 Filed 03/29/24 Page 7 of 7
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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 29, 2024
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`Edward J. Davila
`United States District Judge
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