1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STRIKE 3 HOLDINGS, LLC, Case No. 21-cv-07970-EMC

8 Plaintiff, ORDER GRANTING PLAINTIFF’S EX 9 v. PARTE APPLICATION FOR LEAVE TO SERVE THIRD-PARTY 10 JOHN DOE SUBSCRIBER ASSIGNED IP SUBPOENA ADDRESS 67.180.142.99, 11 Docket No. 7 Defendant. 12 13 14 I. INTRODUCTION 15 The plaintiff Strike 3 Holdings owns the copyrights for several adult motion pictures. 16 Docket No. 7 (“Ex Parte Appl.”) at 9. It alleges that someone — the Doe defendant here — who 17 uses the IP address 67.180.142.99 infringed on those copyrights. Docket No. 1 (“Compl.”). 18 Despite its own efforts, Strike 3 Holdings has not been able to identify the individual associated 19 with that IP address. Ex Parte Appl. at 18. Strike 3 Holdings now asks the Court to let it serve a 20 subpoena on non-party Comcast, the Doe defendant’s internet service provider, to learn the Doe 21 defendant’s identity. See generally id. 22 Because Strike 3 Holdings has demonstrated that good cause exists to allow it to serve a 23 subpoena, the Court GRANTS the motion. 24 II. BACKGROUND 25 Strike 3 Holdings is the owner of several adult motion pictures distributed through its adult 26 brands Blacked, Tushy, Vixen, and Blacked Raw. Ex Parte Appl. at 10. Strike 3 holds title to each 27 of the motion pictures distributed through its brands’ sites. Id. 1 used the file distribution network known as “BitTorrent” to illegally download and distribute 2 Strike 3 Holdings’s copyrighted movies. Compl. ¶ 38. Through geolocation technology, Strike 3 3 has traced each download made to the Doe defendant’s IP address to a physical address in the 4 Northern District of California. Ex Parte Appl. at 16-17. Strike 3 Holdings’s investigator 5 established direct “TCP/IP” connections with the defendant’s IP address while the defendant was 6 using BitTorrent. Compl. ¶¶ 30-33. The investigator downloaded media files containing a digital 7 copy of Strike 3’s copyrighted movies from the defendant. Compl. ¶¶ 28-47. The file hash — a 8 unique value that acts as a fingerprint identifying media files — confirmed that the files the 9 investigator downloaded were downloaded from the defendant. Id; Ex Parte Appl. at 18. The 10 defendant “has been recorded infringing 38 movies over an extended period of time.” Compl. ¶ 4. 11 Strike 3 Holdings did not give the defendant permission or authorization to distribute its 12 copyrighted movies. Id. ¶ 51. Strike 3 Holdings alleges that Comcast can identify the defendant 13 through his or her IP address. Id. ¶ 5; Ex Parte Appl. at 20. 14 On October 11, 2021, Strike 3 Holdings filed a complaint against the Doe defendant 15 alleging one claim for copyright infringement under the Copyright Act. Compl. On October 20, 16 2021, Strike 3 Holdings filed an ex parte application asking the court to allow it to serve Comcast 17 with a subpoena under Federal Rule of Civil Procedure 45. Ex Parte Appl. Strike 3 Holdings says 18 that the subpoena will be limited to the name and address of the individual/individuals associated 19 with the Doe defendant’s IP address. Id. at 21. 20 III. LEGAL STANDARD 21 A court may authorize early discovery before the Rule 26(f) conference for the parties’ and 22 witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d). Courts within the 23 Ninth Circuit generally consider whether a plaintiff has shown “good cause” for early discovery. 24 See, e.g., IO Grp., Inc. v. Does 1–65, No. 10-4377 SC,

, at *2 (N.D. Cal. Oct. 25 15, 2010); Semitool, Inc. v. Tokyo Electron Am., Inc.,

, 275–77 (N.D. Cal. 2002); 26 Tex. Guaranteed Student Loan Corp. v. Dhindsa, No. 1:10-cv-00335-LJO-SKO,

2353520, at *2 (E.D. Cal. June 9, 2010); Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 202 1 where the need for expedited discovery, in consideration of the administration of justice, 2 outweighs the prejudice to the responding party.” Semitool,

. 3 In evaluating whether a plaintiff establishes good cause to learn the identity of a Doe 4 defendant through early discovery, courts examine whether the plaintiff: (1) identifies the Doe 5 defendant with sufficient specificity that the court can determine that the defendant is a real person 6 who can be sued in federal court, (2) recounts the steps taken to locate and identify the defendant, 7 (3) demonstrates that the action can withstand a motion to dismiss, and (4) shows that the 8 discovery is reasonably likely to lead to identifying information that will permit service of process. 9 Columbia Ins. Co. v. seescandy.com,

, 578–80 (N.D. Cal. 1999) (citations omitted). 10 “‘[W]here the identity of alleged defendants [is not] known prior to the filing of a complaint[,] the 11 plaintiff should be given an opportunity through discovery to identify the unknown defendants, 12 unless it is clear that discovery would not uncover the identities, or that the complaint would be 13 dismissed on other grounds.’” Wakefield v. Thompson,

(9th Cir. 1999) 14 (quoting Gillespie v. Civiletti,

(9th Cir. 1980)). 15 IV. ANALYSIS 16 A. Strike 3 Holdings Establishes Good Cause for Early Discovery 17 Strike 3 Holdings has made a sufficient showing under each of the four seescandy factors 18 listed above to establish good cause to permit it to engage in early discovery to identify the Doe 19 defendant. 20 First, Strike 3 Holdings has identified the Doe defendant with sufficient specificity that the 21 Court can determine that he or she is a real person who can be sued in federal court. It alleges that 22 the Doe defendant downloaded Strike 3 Holdings’s copyrighted adult motion pictures and 23 distributed them over the BitTorrent network. Compl. ¶¶ 28-47. To download the movie, the Doe 24 defendant had to direct his or her BitTorrent client to download the media file.

These facts 25 indicate that the Doe defendant is an identifiable adult who likely is the primary subscriber of the 26 IP address or someone who resides with and is known to the subscriber. Ex Parte Appl. at 13-14. 27 Strike 3 Holdings also has traced each download made to the Doe defendant’s IP address to the 1 federal claim. Compl. ¶¶ 8-10. 2 Second, Strike 3 Holdings has recounted the steps taken to locate and identify the Doe 3 defendant. The Doe defendant downloaded and distributed Strike 3 Holdings’s movies through 4 his or her IP address, and his or her IP address was traced to this district.

The IP address is not 5 sufficient for Strike 3 to identify the Doe defendant. 6 Third, Strike 3 Holdings has demonstrated that its copyright claim could withstand a 7 motion to dismiss. A plaintiff “must satisfy two requirements to present a prima facie case of 8 direct infringement: (1) [he or she] must show ownership of the allegedly infringed material and 9 (2) [he or she] must demonstrate that the alleged infringers violate at least one exclusive right 10 granted to copyright holders under

.” Perfect 10, Inc. v. Amazon.com, Inc., 508

(9th Cir. 2007) (citing A&M Records, Inc. v. Napster, Inc.,

, 1013 12 (9th Cir. 2001)); see

(a). Under Section 106, a copyright holder has the exclusive 13 rights to reproduce, distribute, publicly display, perform, and create derivative works of the 14 copyrighted work. Direct copyright infringement does not require intent or any particular state of 15 mind. Fox Broad. Co. Inc. v. Dish Network, LLC,

, 1098–99 (C.D. Cal. 16 2012); Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc.,

, 1367 17 (N.D. Cal. 1995). Strike 3 Holdings alleges that it holds the copyrights for the adult motion 18 pictures that the Doe defendant downloaded (and thus copied) and distributed the movies without 19 its permission. Compl. ¶ 51. Strike 3 Holdings has sufficiently alleged a prima facie claim for 20 copyright infringement. 21 Fourth, Strike 3 Holdings has shown that the discovery it seeks is reasonably likely to lead 22 to identifying information that will permit service of process on the Doe defendant. Strike 3 23 Holdings alleges that Comcast records should identify the Doe defendant. Ex Parte Appl. at 14- 24 15. 25 B. Protective Order 26 “[U]nder Rule 26(c), the Court may sua sponte grant a protective order for good cause 27 shown.” McCoy v. Sw. Airlines Co., Inc.,

(C.D. Cal. 2002). The court issues 1 party and the subject matter of the suit deals with sensitive and personal matters. 2 Here, as has been discussed by other courts in this district, the ISP subscribers may not be 3 the individuals who infringed upon Strike 3 Holdings’s copyright. See, e.g., Pac. Century Int’l 4 Ltd. v. Does 1–101, No. C-11-02533 (DMR),

, at *2 (N.D. Cal. Oct. 27, 2011); 5 see also IO Grp., Inc. v. Does 1–19, No. C 10-03851 SI,

, at *1 (N.D. Cal. Mar. 6 1, 2011) (granting the plaintiff additional time to identify and serve the true defendant where a 7 subscriber asserted that he did not infringe plaintiff’s work, suggesting that someone else used his 8 IP address to infringe the plaintiff’s work, and the plaintiff claimed that it needed to take third- 9 party discovery from the subscriber to try to identify who actually used the subscriber’s IP address 10 to allegedly infringe the plaintiff’s work). 11 Additionally, requests for pseudonymity have been granted when anonymity is necessary 12 to preserve privacy in a matter of a sensitive and highly personal nature. See Does I Thru XXIII v. 13 Advanced Textile Corp.,

(9th Cir. 2000). An allegation that an individual 14 illegally downloaded adult motion pictures likely goes to matters of a sensitive and highly 15 personal nature, including one’s sexuality. 16 Accordingly, the Court issues a protective order to the limited extent that any information 17 regarding the Doe defendant released to Strike 3 Holding by the ISP will be treated as confidential 18 for a limited duration. See IO Grp., Inc. v. Does 1–19, No. C 10-03851 SI,

, at 19 *2 (N.D. Cal. 2010). Specifically, Strike 3 Holdings must not publicly disclose that information 20 until the Doe defendant has the opportunity to file a motion with this Court to be allowed to 21 proceed in this litigation anonymously and that motion is ruled on by the Court.

22 If the Doe defendant fails to file a motion for leave to proceed anonymously within 30 23 days after his or her information is disclosed to Strike 3 Holdings’s counsel, this limited protective 24 order will expire.

Given the potential embarrassment associated with being publicly accused 25 of having illegally downloaded adult motion pictures, if the Doe defendant includes identifying 26 information within his or her request to proceed anonymously, the Court finds good cause to order 27 the papers filed under seal until the Court has the opportunity to rule on the request. See

at *3 1 defendant includes identifying information with his or her request to proceed anonymously and the 2 request is placed under seal, the Court will direct the Doe defendant to submit a copy of the under- 3 seal request to Strike 3 Holdings and will ensure that Strike 3 Holdings has time to respond. 4 V. CONCLUSION 5 The Court GRANTS Strike 3 Holdings’s Ex Parte Motion for Expedited Discovery with 6 respect to JOHN DOE subscriber assigned IP address 67.180.142.99 as follows. 7 1. IT IS HEREBY ORDERED that Strike 3 Holding may immediately serve a Rule 8 45 subpoena on Comcast to obtain the Doe defendant’s true name and addresses. The subpoena 9 must have a copy of this order attached. 10 2. IT IS FURTHER ORDERED that the ISP will have 30 days from the date of 11 service upon them to serve the Doe defendant with a copy of the subpoena and a copy of this 12 order. The ISP may serve the Doe defendant using any reasonable means, including written notice 13 sent to his or her last known address, transmitted either by first-class mail or via overnight service. 14 3. IT IS FURTHER ORDERED that the Doe defendant will have 30 days from the 15 date of service upon him or her to file any motions contesting the subpoena (including a motion to 16 quash or modify the subpoena) with the Court that issued the subpoena. If that 30-day period 17 lapses without the Doe defendant contesting the subpoena, the ISP will have 10 days to produce 18 the information responsive to the subpoena to Strike 3 Holdings. 19 4. IT IS FURTHER ORDERED that the subpoenaed entity must preserve any 20 subpoenaed information pending the resolution of any timely-filed motion to quash. 21 5. IT IS FURTHER ORDERED that the ISP that receives a subpoena pursuant to 22 this order must confer with Strike 3 Holdings and may not assess any charge in advance of 23 providing the information requested in the subpoena. The ISP that receives a subpoena and elects 24 to charge for the costs of production must provide a billing summary and cost reports that serve as 25 a basis for such billing summary and any costs claimed by the ISP. 26 6. IT IS FURTHER ORDERED that Strike 3 Holdings must serve a copy of this 27 order along with any subpoenas issued pursuant to this order to the necessary entities. 1 in response to a Rule 45 subpoena may be used by Strike 3 Holdings solely for the purpose of 2 protecting Strike 3 Holdings’s rights as set forth in its complaint. 3 This order disposes of Docket No. 7. 4 5 IT IS SO ORDERED. 6 7 Dated: October 21, 2021 8 9 ______________________________________ EDWARD M. CHEN 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27