1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STRIKE 3 HOLDINGS, LLC, Case No. 23-cv-01985-AMO

8 Plaintiff, ORDER GRANTING EX PARTE 9 v. APPLICATION FOR LEAVE TO SERVE THIRD-PARTY SUBPOENA 10 JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 98.45.227.134, Re: Dkt. No. 7 11 Defendant.

12 13 14 I. INTRODUCTION 15 Plaintiff Strike 3 Holdings, LLC, owns the copyrights for several adult motion pictures. It 16 alleges that someone who uses the IP address 98.45.227.134, Doe Defendant, infringed on those 17 copyrights. Despite its efforts, Strike 3 has not been able to identify the individual associated with 18 that IP address. Strike 3 now asks the Court to let it serve a subpoena on non-party Comcast 19 Cable, Doe Defendant’s internet service provider (“ISP”), to learn Doe Defendant’s identity. 20 Because Strike 3 has demonstrated that good cause exists to allow it to serve a subpoena, the 21 Court GRANTS the motion. Further, the Court sua sponte grants a protective order requiring that 22 information regarding Doe Defendant released to Strike 3 be treated as confidential for a limited 23 duration. 24 II. BACKGROUND 25 Strike 3 is the owner of several adult motion pictures distributed through its adult brands 26 Blacked, Tushy, Vixen, Blacked Raw, and Slayed. Compl. ¶ 3 (ECF No. 1).1 Strike 3 owns the 27 1 copyrights to these motion pictures and registered them with the United States Copyright Office. 2 Id. ¶ 46. 3 Strike 3 alleges Doe Defendant, who uses the Comcast Cable-provided IP address 4 98.45.227.134, used the file distribution network known as “BitTorrent” to illegally download and 5 distribute Strike 3’s copyrighted movies. Compl. ¶¶ 18-38. Through geolocation technology, 6 Strike 3 traced Doe Defendant’s IP address to a physical address in the Northern District of 7 California. Id. ¶ 9. Strike 3 has been unable to ascertain Doe Defendant’s identity. 8 Appl. (ECF No. 7) at 9. Strike 3 alleges that Comcast Cable can identify Doe Defendant through 9 their IP address. Id. 10 On April 24, 2023, Strike 3 filed a complaint against Doe Defendant alleging one claim of 11 copyright infringement under the Copyright Act. Compl. ¶¶ 48-53. On May 3, 2023, Strike 3 12 filed an ex parte motion asking the Court to allow it to serve Comcast Cable with a subpoena 13 under Federal Rule of Civil Procedure 45. Appl. at 9-10. Strike 3 states that it seeks only the 14 name and address of the individual(s) associated with Doe Defendant’s IP address and will only 15 use the information to prosecute the claims made in the complaint. Id. at 10. 16 III. DISCUSSION 17 A. Legal Standard 18 A court may authorize early discovery before the Rule 26(f) conference for the parties’ and 19 witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d). Courts in the Ninth 20 Circuit consider whether a plaintiff has shown “good cause” for early discovery. See, e.g., 21 Semitool, Inc. v. Tokyo Electron Am., Inc.,

(N.D. Cal. 2002); Strike 3 22 Holdings, LLC v. Doe, No. 3:22-CV-08979-LB,

, at *2 (N.D. Cal. Jan. 5, 2023). 23 “Good cause may be found where the need for expedited discovery, in consideration of the 24 administration of justice, outweighs the prejudice to the responding party.” Semitool,

at 276. 26 In evaluating whether a plaintiff has established good cause to learn the identity of a Doe 27 defendant through early discovery, courts examine whether the plaintiff: (1) identifies the Doe 1 who can be sued in federal court; (2) identifies the steps taken to locate and identify the defendant; 2 (3) demonstrates the action can withstand a motion to dismiss; and (4) shows the discovery is 3 reasonably likely to lead to identifying information that will permit service of process. 4 See Columbia Ins. Co. v. seescandy.com,

, 578–80 (N.D. Cal. 1999). “[W]here the 5 identity of the alleged defendant [is not] known prior to the filing of a complaint[,] the plaintiff 6 should be given an opportunity through discovery to identify the unknown defendants, unless it is 7 clear that discovery would not uncover the identities, or the complaint would be dismissed on 8 other grounds.” Wakefield v. Thompson,

(9th Cir. 1999) (alterations in 9 original) (quoting Gillespie v. Civiletti,

(9th Cir. 1980)). 10 B. Analysis 11 1. Strike 3 Establishes Good Cause for Early Discovery 12 Strike 3 has made a sufficient showing under each of the four seescandy.com factors listed 13 above to establish good cause to permit it to engage in early discovery to identify Doe Defendant. 14 First, Strike 3 has identified Doe Defendant with sufficient specificity that the Court can 15 determine that Doe Defendant is a real person who can be sued in federal court. Strike 3 alleges 16 that Doe Defendant downloaded and distributed over thirty of Strike 3’s copyrighted adult motion 17 pictures using BitTorrent. Compl. ¶¶ 4, 50. BitTorrent requires human interaction. Appl. at 16. 18 To download the movie, Doe Defendant had to direct their BitTorrent client to download the 19 movie file.

Strike 3 used geolocation technology to trace each download to Doe Defendant’s 20 IP address to the Northern District of California, giving the Court jurisdiction over Doe Defendant 21 and over Strike 3’s claim. Id. at 17. 22 Second, Strike 3 described the myriad steps it has taken to locate and identify Doe 23 Defendant given the limited information available from the IP address. Appl. at 18. Doe 24 Defendant’s IP address is not sufficient for Strike 3 to identify the unknown defendant. Id. An 25 internet service provider cannot disclose information correlating the identity of a user unless 26 authorized to do so by a court order. See

(c)(2)(B) (“A cable operator may 27 disclose such information if the disclosure is . . . made pursuant to a court order authorizing such 1 Third, Strike 3 has presented a prima facie claim of copyright infringement such that it 2 could withstand a motion to dismiss. To present a prima facie claim, a plaintiff must demonstrate: 3 (1) ownership of the allegedly infringed material and (2) the alleged infringers violated an 4 exclusive right granted to copyright holders under

. Perfect 10, Inc. v. 5 Amazon.com, Inc.,

(9th Cir. 2007). Under Section 106, a copyright holder 6 has exclusive rights to reproduce, distribute copies, publicly display, perform, and create 7 derivative works of the copyrighted work.

. Strike 3 alleges that it holds the 8 copyrights for the movies that Doe Defendant copied and distributed without its permission. 9 Compl. ¶¶ 44-46. 10 Fourth, Strike 3 has shown that the discovery it seeks is reasonably likely to lead to 11 identifying information that will permit service of process on Doe Defendant. Strike 3 alleges that 12 Comcast Cable can identify Doe Defendant through their IP address. Compl. ¶ 5. 13 2. Protective Order 14 “[U]nder Rule 26(c), the Court may sua sponte grant a protective order for good cause 15 shown.” McCoy v. Sw. Airlines Co., Inc.,

(C.D. Cal. 2002); see also Strike 3 16 Holdings, LLC v. Doe, No. 21-CV-04768-LB,

, at *3 (N.D. Cal. July 6, 2021) 17 (same). Here, the ISP subscriber may not be the individual who infringed on Strike 3’s copyright 18 and may instead be an innocent third party. See, e.g., Pac. Century Int’l Ltd. v. Does, No. C-11- 19 02533 DMR,

, at *2 (N.D. Cal. Oct. 27, 2011). Additionally, the Ninth Circuit 20 has permitted parties to use pseudonyms where anonymity is necessary to preserve privacy in a 21 sensitive or highly personal matter. See Does I thru XXIII v. Advanced Textile Corp.,

(9th Cir. 2000); Strike 3 Holdings, LLC v. Doe, No. 21-CV-04768-LB,

2808974, at *3 (N.D. Cal. July 6, 2021). Allegations that an individual illegally downloaded adult 24 motion pictures likely goes to matters of a sensitive and highly personal nature. 25 Having found good cause, the Court issues a protective order requiring that any 26 information regarding Doe Defendant released to Strike 3 be treated as confidential for a limited 27 duration, as detailed below. 1 CONCLUSION 2 The Court GRANTS Strike 3’s ex parte application for an early subpoena under Rule 45 3 according to the terms set out below. The Court also issues the protective order that follows. See 4 Fed. R. Civ. P. 26(c). 5 It is ORDERED that: 6 1. Strike 3 may immediately serve a Rule 45 subpoena on Comcast Cable to obtain only Doe 7 Defendant’s true name and address associated with the IP address identified in the 8 application. 9 2. A copy of this Order shall be attached to the subpoena. 10 3. The ISP shall have 30 days from the date of service upon them to serve Doe Defendant by 11 any reasonable means with a copy of a subpoena and a copy of this Order. 12 4. Doe Defendant shall have 30 days from the day they are served by the ISP to contest the 13 subpoena (including a motion to quash or modify the subpoena) in this Court. 14 5. If Doe Defendant does not contest the subpoena in this Court within the stated time period, 15 the ISP shall produce the responsive information in compliance with the subpoena to 16 Plaintiff within 10 days of the end of Doe Defendant’s time to move the Court. 17 6. The ISP shall preserve the information identified in the subpoena until it produces it or this 18 Court rules on a motion contesting the subpoena. 19 /// 20 /// 21 The following PROTECTIVE ORDER shall apply to the information subpoenaed. 22 Plaintiff shall use the information subpoenaed solely for the purposes of prosecuting this action 23 and protecting the alleged rights identified in the complaint. Plaintiff shall not disclose the name 24 or address of Doe Defendant to any third party without leave of Court. If Plaintiff files any 25 document in this action that includes the information subpoenaed or otherwise identifies 26 Defendant, all identifying information shall be redacted in a public version of the document and 27 filed unredacted under seal pursuant to the Local Rules. If Doe Defendant fails to file a motion for 1 counsel, this limited protective order will expire. 2 IT IS SO ORDERED. 3 Dated: May 15, 2023 col Wad ; . ARACELI MARTINEZ-OLGUIN 6 United States District Judge 7 8 9 10 ll a 12

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