1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STRIKE 3 HOLDINGS, LLC, Case No. 24-cv-08562-AMO

8 Plaintiff, ORDER GRANTING APPLICATION 9 v. FOR LEAVE TO FILE THIRD PARTY SUBPOENA 10 JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 102.129.252.12, Re: Dkt. No. 7 11 Defendant.

12 13 Before the Court is Plaintiff Strike 3 Holdings, LLC’s (“Strike 3”) Ex Parte Application for 14 Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference. Strike 3 seeks a 15 subpoena to compel non-party Spectrum to identify the unknown individual associated with the IP 16 address 102.129.252.12. Based on Strike 3’s submissions, the Court GRANTS leave to serve a 17 subpoena with specific conditions provided below. Because many courts have raised concerns 18 that Strike 3 could be pursuing potentially innocent ISP account owners who are often 19 embarrassed into early settlements, the identity of the Doe Defendant SHALL be protected unless 20 and until further order by the Court. 21 I. BACKGROUND 22 Strike 3 owns the copyrights for several adult motion pictures that are associated with and 23 distributed through various adult websites. Compl. ¶¶ 1-3 (ECF 1). Using a specialized 24 infringement detection system it developed, Strike 3 discovered the IP address of the Doe 25 Defendant who allegedly infringed upon its copyrights. Id. ¶¶ 28-29. Specifically, the Complaint 26 alleges that the Defendant used BitTorrent’s file network to illegally download and distribute 27 about 36 media files of Strike 3’s copyrighted material. Id. ¶¶ 29, 38; see also id., Ex. A. 1 II. LEGAL STANDARD 2 A court may authorize early discovery before the Rule 26(f) conference for the parties’ and 3 witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d). Courts within the 4 Ninth Circuit generally consider whether a plaintiff has shown “good cause” in support of early 5 discovery. See, e.g., IO Grp., Inc. v. Does 1-65,

, at *2 (N.D. Cal. Oct. 15, 6 2010); Semitool, Inc. v. Tokyo Electron Am., Inc.,

(N.D. Cal. 2002). 7 “Good cause may be found where the need for expedited discovery, in consideration of the 8 administration of justice, outweighs the prejudice to the responding party.” Semitool,

. In evaluating whether a plaintiff establishes good cause to learn the identity of a Doe 10 defendant through early discovery, courts examine whether the plaintiff: (1) identifies the Doe 11 defendant with sufficient specificity that the court can determine that the defendant is a real person 12 who can be sued in federal court; (2) recounts the steps taken to locate and identify the defendant; 13 (3) demonstrates that the action can withstand a motion to dismiss; and (4) shows that the 14 discovery is reasonably likely to lead to identifying information that will permit service of process. 15 Columbia Ins. Co. v. seescandy.com,

(N.D. Cal. 1999) (citations omitted). 16 “[W]here the identity of alleged defendants [is not] known prior to the filing of a complaint[,] the 17 plaintiff should be given an opportunity through discovery to identify the unknown defendants, 18 unless it is clear that discovery would not uncover the identities, or that the complaint would be 19 dismissed on other grounds.” Wakefield v. Thompson,

(9th Cir. 1999). 20 III. DISCUSSION 21 A. Strike 3’s Litigation History 22 As some courts in this District have done, before turning to the merits of the application, 23 the Court believes that an overview of Strike 3’s litigation history would provide useful context 24 for the Doe Defendant or any other party who may receive this Order. See, e.g., Strike 3 Holdings, 25 LLC v. John Doe Subscriber Assigned IP Address 98.47.46.165, No. 24-CV-00989-EJD,

1354465, at *2 (N.D. Cal. Mar. 29, 2024). Especially given the informational disparity and matrix 27 of undesirable options facing an ISP subscriber served with such a complaint, this context will 1 Strike 3 has filed thousands of similar lawsuits and requests to subpoena subscriber 2 information from ISPs, such as Spectrum. See, e.g., Strike 3 Holdings, LLC v. Doe, No. 23-CV- 3 4339-RS,

, at *2 (N.D. Cal. Sept. 22, 2023) (collecting cases). At least one 4 federal judge has also openly characterized Strike 3 as a “copyright troll” that uses its “swarms of 5 lawyers [to] hound people who allegedly watch their content through BitTorrent.” Strike 3 6 Holdings, LLC v. Doe,

(D.D.C. 2018) (describing the copyright 7 troll’s strategy as “file a deluge of complaints; ask the court to compel disclosure of the account 8 holders; settle as many claims as possible; abandon the rest”), rev’d and remanded,

(D.C. Cir. 2020). 10 In practice, once subscribers are alerted that they are being sued for uploading 11 pornography, they may be pressured to quickly settle the matter to avoid the risk of having their 12 names publicly associated with the lawsuit or the costs of hiring an expensive copyright legal 13 specialist. See Strike 3 Holdings, LLC,

, at *2; see also Strike 3 Holdings, 351 14 F. Supp. 3d at 162 (“[O]nce the ISP outs the subscriber, permitting them to be served as the 15 defendant, any future Google search of their name will turn-up associations with the websites 16 Vixen, Blacked, Tushy, and Blacked Raw.”). As a result, many innocent ISP subscribers would 17 be pressured to settle, even though several courts have observed that “ISP subscribers may not be 18 the individuals who infringed upon Strike 3’s copyright.” Strike 3 Holdings, LLC v. Doe, No. 19 3:23-CV-01977-LB,

, at *3 (N.D. Cal. May 9, 2023) (collecting cases); see also 20 Strike 3 Holdings,

(“[I]nferring the person who pays the cable bill illegally 21 downloaded a specific file is even less trustworthy than inferring they watched a specific TV 22 show.”). Moreover, if a defendant moves to confront a “copyright troll” or exhibits any serious 23 resistance, the company can simply drop the case and avoid any unfavorable judicial rulings. See 24 Strike 3 Holdings,

(“These serial litigants drop cases at the first sign of 25 resistance, preying on low-hanging fruit and staying one step ahead of any coordinated defense.”) 26 B. Good Cause 27 Turning to the merits of Strike 3’s ex parte application, the Court finds that Strike 3 has 1

. 2 First, the Court finds that Strike 3 has identified the Doe Defendant with sufficient 3 specificity for the Court to determine that the Doe Defendant is a real person who may be sued in 4 federal court. The Complaint alleges that BitTorrent’s protocols require the activity of a human 5 user to share movies within the BitTorrent network. Compl. ¶¶ 18-27. Strike 3 also used 6 Maxmind geolocation technology to trace the IP address it procured through its VXN Scan 7 detection software to a geographic location within this district. Id. ¶ 9. 8 Second, Strike 3 has recounted the steps it took to locate and identify the Doe Defendant. 9 In addition to the geolocation and infringement detection technology described immediately 10 above, Strike 3 has attempted to associate the IP address with a defendant individual using various 11 web search tools and consultations with computer investigators and cyber security consultants. 12 Appl. 18. 13 Third, Strike 3 has preliminarily demonstrated that its action can withstand a motion to 14 dismiss. “Plaintiffs must satisfy two requirements to present a prima facie case of direct 15 infringement: (1) they must show ownership of the allegedly infringed material and (2) they must 16 demonstrate that the alleged infringers violate at least one exclusive right granted to copyright 17 holders under

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

(9th 18 Cir. 2007). A copyright holder’s rights under Section 106 include the exclusive rights to 19 reproduce, distribute, publicly display, perform, and create derivative works of the copyrighted 20 work.

. Here, Strike 3 alleges that it owns the copyrights to adult movies that the 21 Doe Defendant downloaded, copied, and distributed without permission. Compl. ¶¶ 28, 46. 22 Accepting these allegations as true, the Court finds that the Complaint may withstand a motion to 23 dismiss. 24 Finally, Strike 3 has shown that the discovery it seeks is reasonably likely to lead to 25 identifying information that will permit service of process on the Doe Defendant. Specifically, 26 Strike 3 seeks the name and address of the Doe Defendant and has represented that the “only 27 entity that can correlate the IP address to its subscriber and identify Defendant as the person 1 Commc’ns, Inc.,

(4th Cir. 2018) (“[O]nly the ISP can match the IP address to 2 the subscriber’s identity.”)). In sum, the Court finds that Strike 3 has satisfied all four 3 seescandy.com factors and presented good cause for its requested expedited discovery. 4 C. Protective Order 5 Even though Strike 3 is entitled to a pre-discovery subpoena, the Court retains authority 6 under Federal Rule of Civil Procedure 26(c) to grant a sua sponte protective order for good cause. 7 See, e.g., McCoy v. Sw. Airlines Co.,

(C.D. Cal. 2002); Fed. R. Civ. P. 26(c). 8 In this case, the Court finds that there is good cause to implement limited protective measures to 9 shield a potential innocent and unwitting ISP subscriber from undue prejudice. Strike 3 does not 10 oppose establishing procedural safeguards to respect privacy interests. Appl. 12-13. 11 Consistent with the protective measures undertaken by many other courts in this district, 12 the Court will employ procedures to treat as confidential any personal information regarding the 13 Doe Defendant that Spectrum produces to Strike 3. The Court will also permit and consider any 14 request by the Doe Defendant to proceed anonymously under a pseudonym. 15 IV. CONCLUSION 16 Based on the foregoing, the Court GRANTS Strike 3’s Ex Parte Application with respect 17 to Defendant Doe, Subscriber Assigned IP Address 102.129.252.12, as follows: 18 • Within 21 days of this Order, Strike 3 MAY serve a Rule 45 subpoena on Spectrum 19 (“ISP”), commanding the ISP to provide Strike 3 with the true name and address of the 20 Defendant to whom the ISP assigned an IP address as set forth on Exhibit A to the 21 Complaint. Strike 3 SHALL attach a copy of this Order to any such subpoena. 22 o Strike 3 MAY serve a Rule 45 subpoena in the same manner as above on any 23 service provider that is identified in response to a subpoena as a provider of 24 Internet services to the Defendant. 25 o If the ISP qualifies as a “cable operator” per

(5), then it shall 26 comply with

(c)(2)(B) by sending a copy of this Order to 27 Defendant. ] Defendant subscriber assigned the IP address 102.129.252.12 with a copy of the subpoena 2 and this Order. 3 e Within thirty (30) days after he or she has been served with the subpoena and this Order, 4 the Doe Defendant MAY file a motion to contest the subpoena, including a motion to 5 quash or modify the subpoena. The Doe Defendant MAY appear and proceed before this 6 Court under a pseudonym by requesting that their personal identifying information be filed 7 under seal. 8 o Ifthe Doe Defendant does not contest the subpoena within thirty days, the ISP may 9 produce the information responsive to Strike 3’s subpoena within fourteen (14) 10 days. 11 e Strike 3 MAY only use the information disclosed in response to its subpoena for the 12 purpose of protecting and enforcing its rights as set forth in the Complaint. Strike 3 MAY E 13 NOT publicly disclose the information obtained from its subpoena without leave of this 14 Court. All references to the Doe Defendant’s identity SHALL be redacted and filed under 3 15 seal until further notice. 16 e Spectrum or any other [SP that receives a subpoena pursuant to this Order SHALL confer

17 with Strike 3 and MAY NOT assess any charge in advance of providing the information 18 requested in the subpoena. The ISP that receives a subpoena and elects to charge for the 19 costs of production must provide a billing summary and cost reports that serve as a basis 20 for the billing summary and costs claimed by the ISP. 21 e Spectrum or any other [SP that receives a subpoena pursuant to this Order SHALL 22 preserve any subpoenaed information pending the resolution of any timely filed motion to 23 dismiss. 24 IT IS SO ORDERED. 25 Dated: December 23, 2024 26 Wed □□ □

ARACELI MARTINEZ-OLGUIN 28 United States District Judge