1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 STRIKE 3 HOLDINGS, LLC, Case No. 5:25-cv-08418-EJD

9 Plaintiff, ORDER GRANTING APPLICATION FOR LEAVE TO SERVE THIRD- 10 v. PARTY SUBPOENA

11 JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 99.162.148.26, Re: ECF No. 7 12 Defendant.

13 Plaintiff Strike 3 Holdings, LLC (“Strike 3”) brings this action against an unknown 14 individual (the “Doe Defendant”) who allegedly used BitTorrent to illegally download and 15 distribute Strike 3's copyrighted adult films. Strike 3 now seeks leave to serve a subpoena 16 compelling non-party AT&T Inc. (“AT&T”) to identify this unknown individual associated with 17 the IP address 99.162.148.26. Appl., ECF No. 7. 18 Based on Strike 3's submissions, the Court GRANTS leave to serve a subpoena on AT&T 19 subject to the specific conditions outlined below. Because many courts have raised concerns that 20 Strike 3 could be pursuing potentially innocent internet service provider (“ISP”) account owners 21 who are often embarrassed into early settlements, the identity of the Doe Defendant shall be 22 protected unless and until further ordered by the Court. 23 I. BACKGROUND 24 Strike 3 owns the copyrights for several adult motion pictures that are associated with and 25 distributed through various adult websites. Compl. ¶¶ 1–3, ECF No. 1. Using a specialized 26 infringement detection system it developed, Strike 3 discovered the IP address of the Doe 27 Defendant who allegedly infringed Strike 3’s copyrights. Id. ¶¶ 27–44. Specifically, Strike 3 1 alleges that the Doe Defendant used BitTorrent's file network to illegally download and distribute 2 about fifty-four (54) of Strike 3's copyrighted works. Id. ¶¶ 4, 44; see also id., Ex. A. 3 On November 27, 2024, Strike 3 filed this case, asserting one claim of direct copyright 4 infringement and seeking an injunction and statutory damages. Id. at 7–8. 5 II. LEGAL STANDARD 6 A court may authorize early discovery before the Rule 26(f) conference for the parties’ and 7 witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d). Courts in the Ninth 8 Circuit generally consider whether a plaintiff has shown “good cause.” See, e.g., IO Grp., Inc. v. 9 Does 1–65,

, at *2 (N.D. Cal. Oct. 15, 2010); Semitool, Inc. v. Tokyo Electron 10 Am., Inc.,

, 275–77 (N.D. Cal. 2002). “Good cause may be found where the need 11 for expedited discovery, in consideration of the administration of justice, outweighs the prejudice 12 to the responding party.” Semitool,

. 13 In evaluating whether a plaintiff has established good cause to learn the identity of a Doe 14 defendant through early discovery, courts examine whether the plaintiff: 15 (1) identifies the Doe defendant with sufficient specificity that the court can determine that the 16 defendant is a real person who can be sued in federal court; 17 (2) recounts the steps taken to locate and identify the defendant; 18 (3) demonstrates that the action can withstand a motion to dismiss; and 19 (4) shows that the discovery is reasonably likely to lead to identifying information that will 20 permit service of process. 21 Columbia Ins. Co. v. seescandy.com,

, 578–80 (N.D. Cal. 1999) (citations omitted). 22 “[W]here the identity of alleged defendants [is not] known prior to the filing of a complaint[,] the 23 plaintiff should be given an opportunity through discovery to identify the unknown defendants, 24 unless it is clear that discovery would not uncover the identities, or that the complaint would be 25 dismissed on other grounds.” Wakefield v. Thompson,

(9th Cir. 1999). 26 27 III. DISCUSSION 1 A. Strike 3’s Litigation History 2 Before turning to the merits of the application, the Court begins by providing an overview 3 of Strike 3's litigation history as context for the Doe Defendant or any other party who may 4 receive this Order. The Court has done the same in other similar cases brought by Strike 3. See, 5 e.g., Strike 3 Holdings, LLC v. John Doe Subscriber Assigned IP Address 73.231.214.39, No. 6 5:23-CV-05468-EJD,

, at *1 (N.D. Cal. Nov. 27, 2023). Given the 7 informational disparity and matrix of undesirable options facing an ISP subscriber served with 8 Strike 3’s complaint, this context will hopefully reduce the prejudice the subscriber may face. 9 Strike 3 has filed thousands of similar lawsuits and requests to subpoena subscriber 10 information from ISPs, such as AT&T. See, e.g., Strike 3 Holdings, LLC v. Doe, No. 23-CV- 11 04339,

, at *2 (N.D. Cal. Sept. 22, 2023) (collecting cases). At least one federal 12 judge has also openly characterized Strike 3 as a “copyright troll” that uses its “swarms of lawyers 13 [to] hound people who allegedly watch their content through BitTorrent.” Strike 3 Holdings, LLC 14 v. Doe,

, 161–62 (D.D.C. 2018) (describing the copyright troll's strategy as 15 “file a deluge of complaints; ask the court to compel disclosure of the account holders; settle as 16 many claims as possible; abandon the rest”), rev'd and remanded,

(D.C. Cir. 2020). 17 In practice, once subscribers are alerted that they are being sued for uploading 18 pornography, they may be pressured to quickly settle the matter to avoid the risk of having their 19 names publicly associated with the lawsuit or to avoid the costs of hiring an expensive copyright 20 legal specialist. See Strike 3 Holdings, LLC,

, at *2; see also Strike 3 Holdings, 21

(“[O]nce the ISP outs the subscriber, permitting them to be served as the 22 defendant, any future Google search of their name will turn-up associations with the websites 23 Vixen, Blacked, Tushy, and Blacked Raw.”). As a result, many innocent ISP subscribers may be 24 pressured to settle, despite several courts observing that “ISP subscribers may not be the 25 individuals who infringed upon Strike 3's copyright.” Strike 3 Holdings, LLC v. Doe, No. 3:23- 26 CV-01977-LB,

, at *3 (N.D. Cal. May 9, 2023) (collecting cases); see also 27 1 Strike 3 Holdings,

(“[I]nferring the person who pays the cable bill illegally 2 downloaded a specific file is even less trustworthy than inferring they watched a specific TV 3 show.”). Moreover, if a defendant moves to confront a “copyright troll” or exhibits any serious 4 resistance, the company can simply drop the case and avoid any unfavorable judicial rulings. See 5 Strike 3 Holdings,

(“These serial litigants drop cases at the first sign of 6 resistance, preying on low-hanging fruit and staying one step ahead of any coordinated defense.”). 7 B. Good Cause 8 Turning now to the merits of Strike 3's ex parte application, the Court finds that Strike 3 9 has demonstrated good cause for early discovery under the four seescandy.com factors. 10 First, Strike 3 has identified the Doe Defendant with sufficient specificity for the Court to 11 determine that the Doe Defendant is a real person who may be sued in federal court. The 12 complaint alleges that BitTorrent's protocols require the activity of a human user to share movies 13 within the BitTorrent network. Compl. ¶¶ 18–26. Strike 3 also used Maxmind geolocation 14 technology to trace the IP address it procured through its VXN Scan detection software to a 15 geographic location within this District. Id. ¶ 9. 16 Second, Strike 3 has recounted the steps it took to locate and identify the Doe Defendant. 17 In addition to the geolocation and infringement detection technology already described, Strike 3 18 attempted to associate the IP address with an individual using various web search tools and 19 consultations with computer investigators and cyber security experts. Appl. at 18. 20 Third, Strike 3 has preliminarily demonstrated that its action can withstand a motion to 21 dismiss. “Plaintiffs must satisfy two requirements to present a prima facie case of direct 22 infringement: (1) they must show ownership of the allegedly infringed material and (2) they must 23 demonstrate that the alleged infringers violate at least one exclusive right granted to copyright 24 holders under

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

(9th 25 Cir. 2007). A copyright holder's rights under § 106 include the exclusive rights to reproduce, 26 distribute, publicly display, perform, and create derivative works of the copyrighted work. 17

. Here, Strike 3 alleges that it owns valid, registered copyrights to adult movies that 1 the Doe Defendant downloaded, copied, and distributed without permission. Compl. ¶¶ 2, 4, 46– 2 49, 52–54; see also

Ex. A (listing registration information to the asserted copyrighted works). 3 Accepting these allegations as true, the Court finds that the complaint can withstand a motion to 4 dismiss. 5 Finally, Strike 3 has shown that the discovery it seeks is reasonably likely to lead to 6 identifying information that will enable service of process on the Doe Defendant. Specifically, 7 Strike 3 only seeks the name and address of the Doe Defendant and has represented that the “only 8 entity that can correlate the IP address to its subscriber and identify Defendant as the person 9 assigned the IP address is Defendant's ISP.” Appl. at 14 (citing BMG Rts. Mgmt. (US) LLC v. Cox 10 Commc'ns, Inc.,

(4th Cir. 2018)). 11 In sum, the Court finds that Strike 3 has satisfied all four seescandy.com factors and thus 12 presents good cause for its requested expedited discovery. 13 C. Protective Order 14 Though Strike 3 is entitled to a pre-discovery subpoena, the Court retains authority under 15 Federal Rule of Civil Procedure 26(c) to grant a sua sponte protective order for good cause. See, 16 e.g., McCoy v. Sw. Airlines Co.,

(C.D. Cal. 2002); Fed. R. Civ. P. 26(c). In 17 this case, the Court finds that there is good cause to implement limited protective measures to 18 shield a potentially innocent and unwitting ISP subscriber from undue prejudice. Strike 3 does not 19 oppose establishing procedural safeguards to respect privacy interests. Appl. at 11. Consistent 20 with the protective measures undertaken by many other courts in this District, the Court will 21 employ procedures to treat as confidential any personal information regarding the Doe Defendant 22 that AT&T or any other ISP produces to Strike 3. The Court will also permit and consider any 23 request by the Doe Defendant to proceed anonymously under a pseudonym. 24 IV. CONCLUSION 25 Based on the foregoing, the Court GRANTS Strike 3's Ex Parte Application with respect 26 to Defendant Doe, Subscriber Assigned IP Address 99.162.148.26, as follows: 27 1. Strike 3 may serve a Rule 45 subpoena on AT&T, commanding AT&T to provide Strike 3 1 with the true name and address of the Doe Defendant to whom AT&T assigned an IP 2 address as set forth in Exhibit A to the Complaint. Strike 3 shall attach a copy of this 3 Order to any such subpoena. 4 a. Strike 3 may serve a Rule 45 subpoena in the same manner as above on any ISP 5 that is identified in response to the subpoena as a provider of Internet services to 6 the Doe Defendant. 7 b. If AT&T qualifies as a “cable operator” per

(5), then it shall 8 comply with

(c)(2)(B) by sending a copy of this Order to the Doe 9 Defendant. 10 2. Within thirty (30) days of being served by Strike 3, AT&T shall serve the Doe Defendant 11 subscriber assigned the IP address 99.162.148.26 with a copy of the subpoena and this 12 Order. 13 3. Within thirty (30) days after he or she has been served with the subpoena and this Order, 14 the Doe Defendant may file a motion to contest the subpoena, including a motion to quash 15 or modify the subpoena. The Doe Defendant may appear and proceed before this Court 16 under a pseudonym by requesting that his or her personal identifying information be filed 17 under seal. 18 a. If the Doe Defendant does not contest the subpoena within thirty days, AT&T may 19 produce the information responsive to Strike 3's subpoena within ten (10) days. 20 4. Strike 3 may only use the information disclosed in response to its subpoena for the purpose 21 of protecting and enforcing its rights as set forth in the Complaint. Strike 3 may not 22 publicly disclose the information obtained from its subpoena without leave of this Court. 23 All references to the Doe Defendant's identity shall be redacted and filed under seal until 24 further notice. 25 5. AT&T or any other ISP that receives a subpoena pursuant to this Order shall confer with 26 Strike 3 and may not assess any charge in advance of providing the information requested 27 in the subpoena. An ISP that receives a subpoena and elects to charge for the costs of 1 production must provide a billing summary and cost reports that serve as a basis for the 2 billing summary and costs claimed by the ISP. 3 6. AT&T or any other ISP that receives a subpoena pursuant to this Order shall preserve any 4 subpoenaed information pending the resolution of any timely filed motion to dismiss. 5 IT IS SO ORDERED. 6 Dated: October 17, 2025 7 8 EDWARD J. DAVILA 9 United States District Judge 10 11 12

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