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LLC v. Doe

United States District Court, D. Minnesota

January 2, 2019

JOHN DOE, subscriber assigned IP address, Defendant.

          Adam P. Gislason, Fox Rothschild LLP, for Plaintiff.



         On April 30, 2018, Magistrate Judge David T. Schultz denied Plaintiff Strike 3 Holdings, LLC's (“Strike 3”) Motion for Leave to Serve A Third-Party Subpoena. Strike 3 now appeals the Order. Strike 3 knows the Defendant only by an internet protocol (“IP”) address, and seeks to discover Defendant's true name and address by serving a subpoena on Defendant's Internet Service Provider (“ISP”), Comcast Cable Communications, LLC (“Comcast”), prior to a Rule 26(f) conference. Because there is good cause to issue the subpoena, the Court will grant Strike 3's appeal and reverse the Magistrate Judge's Order. Given the sensitive nature of the allegations, the Court will also issue a protective order.


         Strike 3 is the owner of “award winning, critically acclaimed adult motion pictures, ” which it distributes through DVD sales and paid website subscriptions. (Compl. ¶¶ 2, 13, Mar. 31, 2018, Docket No. 1.) Strike 3 alleges that Defendant infringed its copyrights by downloading and distributing thirty-one of Strike 3's movies using the BitTorrent protocol, a system designed to efficiently distribute large files over the internet. (Id. ¶¶ 4, 17-23.) Strike 3 hired a private investigator to investigate piracy of its videos through the BitTorrent system. (Id. ¶ 24.) The private investigator established a connection with Defendant's IP address through BitTorrent, and downloaded one or more of Strike 3's copyrighted films from Defendant. (Id. ¶¶ 24-25.) However, the investigator was only able to identify Defendant by an IP address. An IP address is merely a number assigned by Defendant's Internet Service Provider (“ISP”), Comcast; and only Comcast can match the IP address to Defendant's actual name and address. (Id. ¶ 12.)

         Strike 3 seeks monetary and equitable relief for Defendant's alleged copyright infringement. Since Strike 3 can only identify Defendant by an IP address, however, Strike 3 has been unable to complete service of process. In its motion, Strike 3 seeks leave to subpoena Comcast to discover the name and address of the party to whom this IP address is registered. (Mot. for Leave to Serve a Third-Party Subpoena, April 19, 2018, Docket No. 5).

         Magistrate Judge Schultz denied Strike 3's motion after identifying a conflict between the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512, the Communications Act, 47 U.S.C. § 551, and Rule 45 of the Federal Rules of Civil Procedure. (Order, April 20, 2018, Docket No. 14.) The DMCA establishes a procedure enabling a copyright holder to obtain and serve subpoenas on ISPs to identify alleged copyright infringers and protects ISPs from liability for copyright infringement. See In re Charter Commc'ns, Inc., 393 F.3d 771, 775 (8th Cir. 2005). Because Comcast, Defendant's ISP, is a cable operator, the Communications Act is also applicable. The Communications Act protects cable subscribers' privacy interests by prohibiting disclosure of personal information by cable operators. 47 U.S.C. § 551(c). These statutes are somewhat in tension with Rule 45, under which Strike 3 seeks a subpoena requiring Comcast to disclose Defendant's name and address. The Magistrate Judge weighed Strike 3's interest in its copyrights against Defendant's privacy interest, and in light of the tension between Rule 45, the DMCA, and the Communications Act, found that an ex parte Rule 45 subpoena would be inappropriate.[1]



         The standard of review on an objection to a magistrate judge's order depends on whether that order is dispositive. The district court reviews a magistrate's dispositive decisions de novo, while it reviews non-dispositive rulings for clear error. See Fed. R. Civ. P. 72. In determining whether a ruling is dispositive, Rule 72 “permits the courts to reach commonsense decisions rather than becoming mired in a game of labels.” E.E.O.C. v. Schwan's Home Serv., 707 F.Supp.2d 980, 988 (D. Minn. 2010) (quoting Charles A. Wright et al., Federal Practice and Procedure: Civil 2d § 3068, at 338 (1997)). “Courts typically consider ‘the impact on the merits of the case in deciding whether [the motion] should be characterized as dispositive.'” Id. (quoting Wright et al., supra, at 345). Here, the Court does not decide whether the Magistrate Judge's order was dispositive, because it would reach the same conclusion under either standard of review.


         The Magistrate Judge found a conflict between the DMCA, the Communications Act, and Rule 45. Specifically, the Magistrate Judge found that because the information Strike 3 seeks in discovery is protected under the Communications Act, it would be improper to subpoena the information under Rule 45 or the DMCA. Because the DMCA establishes a process for copyright holders to obtain subpoenas without engaging in litigation, and the Communications Act provides for disclosure of ISP subscribers' protected information by court order, the Court finds no conflict between these statutes and a Rule 45 subpoena.

         The DMCA establishes a process by which a copyright holder can request the clerk of a United States district court to issue a subpoena to an ISP[2] to identify an alleged copyright infringer. 17 U.S.C. § 512(h). In In re Charter Communications, Inc., the Eighth Circuit held that § 512(h) does not authorize a subpoena when “[the ISP's] function was limited to acting as a conduit for the allegedly copyright protected material.” 393 F.3d 771, 777 (8th Cir. 2005). But that holding, and indeed the DMCA, are not applicable here. Strike 3 did not request a subpoena from the clerk of court pursuant to § 512(h). Rather, Strike 3 has filed a lawsuit and seeks the John Doe defendant's identity through a Rule 45 subpoena-a process explicitly endorsed, albeit in dicta, by the Eighth Circuit. See Id. at 775 n.3 (“[O]rganizations such as [plaintiff] can also employ alternative avenues to seek this information, such as ‘John Doe' lawsuits. In such lawsuits . . . organizations such as [plaintiff] can file a John Doe suit, along with a motion for third-party discovery of the identity of the otherwise anonymous ‘John Doe' defendant.”).

         The Court also finds instructive the Eighth Circuit's opinion in Killer Joe Nevada, LLC v. Does 1-20, 807 F.3d 908 (8th Cir. 2015). There, as here, a copyright holder sued John Doe defendants who allegedly downloaded copyrighted material through BitTorrent and who were identified only by an IP address. Id. at 910-11. The district court permitted the copyright holder to serve a subpoena on the ISP to discover the ISP subscriber's identity. Id. Once the plaintiff learned the defendant's identity, the defendant denied having downloaded any copyrighted material, and the plaintiff moved to voluntarily dismiss its suit. Id. at 911. The question before the Eighth Circuit was whether the trial court had abused its discretion in denying the defendant an award of attorney fees. The court found the copyright holder's actions were reasonable and ...

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