Strike 3 Holdings, LLC v. Doe
351 F. Supp. 3d 160
| D.C. Cir. | 2018Background
- Strike 3 Holdings, an adult-film copyright owner, filed suit against an unnamed Doe based on an allegedly infringing IP address observed via BitTorrent.
- Strike 3 moved ex parte for an early subpoena to the defendant’s ISP to learn the subscriber’s identity before the Rule 26(f) conference.
- Strike 3 frequently files large numbers of near-identical suits nationwide and often seeks pre-Rule 26(d) discovery to unmask subscribers.
- The court recognized technical and practical limits of using IP geolocation to identify the actual infringer (VPNs, shared IPs, malware, etc.), increasing risk of misidentification.
- The Court weighed Strike 3’s need for discovery against the subscriber’s privacy interest (including statutory privacy protections) and found the plaintiff’s subpoena request insufficiently specific to identify the true infringer.
- Because denial of the subpoena made service and prosecution impossible, the Court dismissed the complaint without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff may obtain early discovery (pre-Rule 26(f)) to subpoena ISP identifying a Doe subscriber | Good cause exists where geolocation shows likely personal jurisdiction; early discovery is needed to identify defendant | Subscriber has a substantial privacy interest and the subpoena is overbroad and premature | Denied: plaintiff’s showing lacked required specificity and failed to overcome privacy interest |
| Standard to balance discovery vs. anonymity | D.C. Circuit’s AF Holdings standard (personal jurisdiction) suffices | Court should apply a multi-factor balancing test considering privacy and specificity | Applied multi-factor analysis (following Second Circuit) and placed great weight on privacy |
| Whether the alleged copyright ownership and necessity of ISP data justify compelled disclosure | Ownership and necessity of subscriber identity are prima facie established | Plaintiff’s methods may not reliably identify the actual infringer; risk of false accusation is high | Plaintiff’s ownership and need exist, but are insufficient given identification flaws |
| Consequence of denying the early discovery motion (service/effect on suit) | Plaintiff argued dismissal is premature without any opportunity to discover identities | Denial prevents identification and thus service; case cannot proceed | Dismissed without prejudice because service cannot be effectuated |
Key Cases Cited
- AF Holdings, LLC v. Does 1-1058, 752 F.3d 990 (D.C. Cir. 2014) (geolocation supporting likely personal jurisdiction can show good-faith belief of jurisdiction)
- Arista Records, LLC v. Doe 3, 604 F.3d 110 (2d Cir. 2010) (multi-factor test balancing prima facie claim, specificity, alternatives, necessity, and privacy expectation for unmasking does)
- Sony Music Entm’t Inc. v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004) (articulating factors for early discovery and privacy considerations)
- In re Sealed Case (Medical Records), 381 F.3d 1205 (D.C. Cir. 2004) (Rule 26 balancing recognizes extra protection for privacy interests and looks to statutory confidentiality provisions)
- Soo Park v. Thompson, 851 F.3d 910 (9th Cir. 2017) (discussing when plaintiffs may use discovery to identify unknown defendants)
- Gillespie v. Civiletti, 629 F.2d 637 (9th Cir. 1980) (permitting discovery to identify unknown defendants when dismissal would be premature)