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LLC v. Doe

United States District Court, D. Minnesota

May 4, 2018

Strike 3 Holdings, LLC, Plaintiff,
John Doe, subscriber assigned IP address, Defendant.

          Adam Gislason, Esq., Fox Rothschild LLP, counsel for Plaintiff.



         Plaintiff Strike 3 Holdings, LLC (“Strike 3”) moves ex parte for leave to conduct early discovery via a third-party subpoena directed to Defendant's Internet Service Provider (“ISP”), Comcast Cable Communications, LLC (“Comcast Cable”). (Doc. No. 4.) For the reasons stated below, Strike 3's motion is GRANTED IN PART and DENIED IN PART.

         I. Background

         Strike 3 is the owner of several adult motion pictures. (Doc. No. 1, Compl. ¶ 2.) Strike 3 has filed many copyright infringement cases, including eight in the District of Minnesota. See Civil Case Nos. 18-cv-768 (DSD/FLN), 18-cv-771 (DWF/HB), 18-cv-773 (JRT/DTS), 18-cv-774 (DWF/DTS), 18-cv-775 (PJS/SER), 18-cv-778 (PJS/HB), 18-cv-779 (WMW/SER). Strike 3 has hired an investigator, IPP International U.G., to monitor and detect the infringement of Strike 3's content. IPP discovered that Defendant's IP address was illegally distributing several of Strike 3's motion pictures. Strike 3's independent forensic expert, John S. Pasquale, reviewed the evidence captured by IPP and confirmed that Defendant's IP address was involved in infringing transactions at the exact date and time reported by IPP. (See Doc. No. 11, Declaration of John S. Pasquale (“Pasquale Decl.”); Doc. No. 1-1, Compl., Ex. A.)

         At this point, Strike 3 only knows that infringement is associated with a particular IP address. This IP address is assigned to a subscriber by Comcast Cable. Strike 3 alleges that the Defendant subscriber, identified as John Doe in the Complaint, infringed its copyrights. Comcast Cable is the only entity with the information necessary to identify Defendant by correlating the IP address with John Doe's identity. Thus, Strike 3 seeks leave to serve a Rule 45 subpoena on Comcast Cable so Strike 3 may learn Defendant subscriber's identity, investigate Defendant's role in the infringement, and effectuate service. Strike 3 represents that the subpoena will only demand the true name and address of Defendant, and Strike 3 will use this information only to prosecute the claims in its Complaint. (Doc. No. 6, Def.'s Mem. 6.)

         II. Analysis

         Litigants generally may not “seek discovery from any source before the parties have conferred as required by Rule 26(f).” Fed.R.Civ.P. 26(d)(1). Courts in the Eighth Circuit have used a “good cause” standard to determine whether expedited discovery is appropriate. See Wachovia Sec. v. Stanton, 571 F.Supp.2d 1014, 1049 (N.D. Iowa 2008). In infringement cases, for example, courts “have allowed expedited discovery . . . when the identity of the infringing defendant is masked by the defendant's use of technology or third-parties to hide their true identities.” United Pet Grp., Inc. v. Does, No. CV 4:13-01053 AGF, 2013 WL 4482917, at *1 (E.D. Mo. Aug. 20, 2013). Courts consider the following factors in deciding whether to allow early discovery to ascertain the identity of an anonymous copyright infringer:

(1) the concreteness of the plaintiff's showing of a prima facie claim of actionable harm, (2) the specificity of the discovery request, (3) the absence of alternative means to obtain the subpoenaed information, (4) the need for the subpoenaed information to advance the claim, and (5) the objecting party's expectation of privacy.

Arisa Records, LLC v. Doe 3, 604 F.3d 110, 119 (2d Cir. 2010). Analyzing these factors, the Court concludes that Plaintiff is entitled to early discovery to ascertain the identity of the alleged infringer.

         1. The concreteness of the plaintiff's showing of a prima facie claim of actionable harm. Strike 3 has stated a prima facie claim for copyright infringement, the elements of which are ownership of a valid copyright and copying of original elements of the copyrighted work. Warner Bros. Entm't, Inc. v. X One X Prods., 644 F.3d 584, 595 (8th Cir. 2011). Strike 3 alleges that Defendant used the BitTorrent file network to illegally download and distribute its copyrighted motion pictures. (See Compl. ¶ 23.) This is sufficient to state a prima facie claim. (See also Compl. ¶ 27 (“Defendant downloaded, copied, and distributed a complete copy of Plaintiff's Works without authorization.”); Compl. ¶ 31 (“Plaintiff owns the copyrights to the Works and the Works have either been registered with the United States Copyright Office or have pending copyright registrations.”).)

         2. The specificity of the discovery request. Strike 3's discovery request is narrow and specific, seeking Plaintiff's name and address only. See, e.g., John Wiley & Sons, Inc. v. Doe, 284 F.R.D. 185, 190 (S.D.N.Y. 2012) (denying motion to quash because the “request is specific, as it seeks concrete and narrow information: the name and address of the subscriber associated with [the] IP address, which Wiley alleges was used to infringe its copyright”).

         3. The absence of alternative means to obtain the subpoenaed information. The Digital Millennium Copyright Act (“DMCA”) provides that a copyright owner “may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection.” 17 U.S.C. § 512(h)(1). However, the Eighth Circuit has held that this provision “does not allow a copyright owner to request a subpoena for an ISP which merely acts as a conduit for data transferred between two internet users.” In re Charter Commc'n, 393 F.3d 771, 776 (8th Cir. 2005). This is because the “text and structure of the DMCA require the ISP to be able to both locate and remove the allegedly infringing material before a subpoena can be issued against it.” Id. at 776-77. As in In re Charter Commc'n, Comcast is acting “solely as a conduit for the transmission of material by others (its subscribers using P2P file-sharing software to exchange files stored on their personal computers).” Id. at 777. Therefore, the subpoena provision in the DMCA is unavailable, and a Rule 45 subpoena is the only avenue to discover the subscriber associated with the infringing IP address.[1] See John Wiley, 284 F.R.D. at 190 (explaining that the use of BitTorrent software is “largely anonymous except insofar as it requires a user to broadcast the user's IP address”).

         4. The need for the subpoenaed information to ...

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