UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) STRIKE 3 HOLDINGS, LLC, ) ) Plaintiff, ) ) v. ) No. 1:18-cv-2205 (RC/GMH) ) JOHN DOE subscriber assigned ) IP address 73.128.188.178, ) ) Defendant. ) )

MEMORANDUM OPINION

Before the Court is Plaintiff’s motion for leave to serve a third party subpoena prior to

a Rule 26(f) conference. For the reasons stated herein, the motion is granted.

I. BACKGROUND

Strike 3 Holdings, LLC (“Plaintiff”) owns the copyrights to certain adult-content motion

pictures involved in this action, and has pending registration applications for others. ECF No. 1,

¶¶ 2–3, 32. Plaintiff has filed suit under the Copyright Act of 1976 against Defendant John Doe,

alleging that Defendant “illegally download[ed] and distribute[d]” Plaintiff’s works using the

BitTorrent file-sharing network. 1 Id. ¶¶ 1, 24. Plaintiff seeks statutory damages, declaratory

and injunctive relief prohibiting further infringement of its copyrighted works, and attorney’s

fees. Id. at 7–8.

Though Plaintiff has identified Defendant’s Internet Protocol address (“IP address”) and

1 BitTorrent is “a system designed to quickly distribute large files over the Internet” by allowing its users to “connect to the computers of other BitTorrent users in order to simultaneously download and upload pieces of the file from and to other users” and then “automatically reassemble[]” the file “into its original form.” ECF No. 1, ¶¶ 17–18. Internet Service Provider (“ISP”), Defendant’s identity remains unknown. Id. ¶ 5. For this

reason, Plaintiff seeks leave to serve a third party subpoena on Defendant’s ISP—Comcast Cable

Communications, LLC—that would require the ISP to identify Defendant. Because Defendant

has not been named or served, no response has been filed to Plaintiff’s motion.

II. LEGAL STANDARD

Ordinarily, a party “may not seek discovery from any source” before a Rule 26(f)

conference unless “authorized by . . . a court order.” Fed. R. Civ. P. 26(d)(1). “To determine

whether to authorize discovery prior to a Rule 26(f) conference in a particular case, this district

has applied a ‘good cause’ standard.” Malibu Media, LLC v. Doe,

(D.D.C.

2014). “Good cause to take discovery prior to the Rule 26(f) conference exists where the discovery

is necessary ‘before th[e] suit can progress further.’” Malibu Media, LLC v. Doe, No. 15-cv-986

(RDM),

, at *1 (D.D.C. Sept. 2, 2015) (alteration in original) (quoting Arista

Records LLC v. Does 1–19,

(D.D.C. 2008)).

A plaintiff seeking discovery of the identity of an unknown defendant “must have at least

a good faith belief that such discovery will enable it to show that the court has personal jurisdiction

over the defendant,” i.e., that the putative defendant is either a District of Columbia resident or the

alleged injury occurred within the District of Columbia. See AF Holdings, LLC v. Does,

(D.C. Cir. 2014); Malibu Media, LLC,

, at *1. “The Copyright Act

does not provide for the exercise of personal jurisdiction over alleged infringers on any basis.”

Malibu Media, LLC v. Doe,

, 556–57 (D.D.C. 2016) (citing Exquisite

Multimedia, Inc. v. Does 1–336, No. 11-cv-1976 (RWR/JMF),

, at *2 (D.D.C.

Jan. 19, 2012)). A plaintiff “must predicate this Court’s jurisdiction over the infringers on the

reach of District of Columbia law.”

“The only conceivable way that personal jurisdiction

2 might properly be exercised” is if the defendant is a “resident[ ] of the District of Columbia or at

least downloaded the copyrighted work in the District.” AF Holdings,

(citing

(a)(3), (4)).

III. ANALYSIS

Plaintiff has demonstrated that good cause exists to take discovery prior to the Rule 26(f)

conference. As a preliminary matter, discovery is necessary because this suit cannot progress

without first identifying Defendant so Plaintiff can effect service. See Arista Records, LLC,

. Second, Plaintiff has established a good faith basis for believing that Defendant

is a District of Columbia resident. Using “geolocation technology by Maxmind, Inc. . . . an

industry-leading provider of IP address intelligence,” Plaintiff traced Defendant’s IP address “to a

physical address in this District.” ECF No. 1, ¶ 9. This use of geolocation service technology,

which “enable[s] anyone to estimate the location of Internet users based on their IP addresses,”

suffices to “provide at least some basis for determining whether [Defendant] might live in the

District of Columbia.” See AF Holdings, LLC,

; see also Nu Image, Inc. v. Does,

(D.D.C. 2011) (holding that “[p]laintiff has a good faith basis to believe a

putative defendant may be a District of Columbia resident if a geolocation service places his/her

IP address within the District of Columbia, or within a city located within 30 miles of the District

of Columbia”) (emphasis in original); Malibu Media, LLC,

, at *2 (same); West

Coast Prod. Inc. v. Does,

(D.D.C. 2012) (same). The Court therefore finds that

Plaintiff should be permitted to propound discovery on Defendant’s ISP for the purpose of

determining Defendant’s identity.

3 IV. PROTECTIVE ORDER

In similar cases involving adult content, other courts have issued protective orders to

establish procedural safeguards. See e.g., Strike 3 Holdings, LLC v. Doe, No. 17-cv-2347 (TJK),

, at *2–*3 (D.D.C. Jan. 11, 2018); Malibu Media, LLC v. Doe, No. 15-cv-3504

(JFB/SIL),

, at *2 (E.D.N.Y. Aug. 23, 2016). “The fact that a copyrighted work

was illegally downloaded from a certain IP address does not necessarily mean that the owner of

that IP address was the infringer.” Media Prods., Inc. v. Does 1–26, No. 12-cv-3719 (HB),

, at *1 (S.D.N.Y. June 12, 2012). “Indeed, the true infringer could just as easily be a

third party who had access to the internet connection, such as a son or daughter, houseguest,

neighbor, or customer of a business offering an internet connection.”

As such, “[t]here is a

real risk that [a] defendant[ ] might be falsely identified and forced to defend themselves against

unwarranted allegations [or that an] innocent defendant may be coerced into an unjust settlement

with the plaintiff to prevent the dissemination of publicity surrounding unfounded allegations.”

Without a protective order, “there is no reason to conclude that adequate protections exist to

safeguard the individuals or entities subscribing to the implicated IP address[ ] against the danger

of ‘annoyance, embarrassment, oppression, or undue burden or expense.’” In re Malibu Media

Adult Film Copyright Infringement Cases, No. 15-cv-1855 (SJF/SIL),

, at *4

(E.D.N.Y. June 8, 2015) (quoting Fed. R. Civ. P. 26(c)). In light of these considerations, the Court

finds that a protective order is warranted here.

As such, Plaintiff shall be allowed to serve early discovery by serving a Rule 45 subpoena

on the identified ISP that seeks information sufficient to identify John Doe subscriber assigned IP

address 73.128.188.178, which may include his/her name, address, telephone number, and email

address. Any information disclosed to Plaintiff in response to a Rule 45 subpoena may be used by

4 Plaintiff solely for the purpose of pursuing the claim set forth in its Complaint. Plaintiff shall

provide the ISP with a copy of this Memorandum Opinion and the accompanying Order with the

attached Notice when it serves its subpoena. The ISP shall then provide the Defendant with a copy

of this Memorandum Opinion and the accompanying Order with the attached Notice at least ten

(10) business days prior to releasing Defendant’s identifying information to Plaintiff. If either the

ISP or Defendant wishes to move to quash the subpoena, it must do so before the return date of

the subpoena, which shall be no earlier than thirty (30) days from the date of service. 2 The ISP

shall preserve any information sought in the subpoena pending the resolution of any timely filed

motion to quash. On or before January 4, 2019, Plaintiff shall file a status report with the Court

briefly outlining its progress, including an expected completion date of the discovery allowed by

the accompanying Order.

V. CONCLUSION

For the foregoing reasons, the Court finds that Plaintiff has demonstrated that “good

cause” exists to permit limited discovery prior to the Rule 26(f) conference. Accordingly,

Plaintiff’s motion for leave to serve a third party subpoena prior to a Rule 26(f) conference is

GRANTED. An appropriate order accompanies this Memorandum Opinion.

Digitally signed by G. Michael Harvey Date: 2018.10.25 11:02:39 Date: October 25, 2018 ______________________________ -04'00'

G. MICHAEL HARVEY United States Magistrate Judge

2 This Memorandum Opinion merely allows Plaintiff to propound discovery requests earlier than usual. It does not, however, address whether the subpoena will survive a motion to quash, if raised by Defendant or the ISP. See Arista Records, LLC v. Doe 3,

, 118–19 (2d Cir. 2010).

5