Strike 3 Holdings, LLC v. Doe
Memorandum Opinion (2018)
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Rule of Law:
A federal court may permit a plaintiff to serve a third-party subpoena for an unknown defendant's identity prior to a Rule 26(f) conference if the plaintiff demonstrates "good cause," requiring that the discovery is necessary for the suit to progress and that the plaintiff has a good faith belief the court has personal jurisdiction over the defendant.
Facts:
- Strike 3 Holdings, LLC owns the copyrights to several adult-content motion pictures.
- Strike 3 Holdings, LLC filed suit under the Copyright Act against an unknown "John Doe" defendant, alleging the illegal download and distribution of its copyrighted works using the BitTorrent file-sharing network.
- Strike 3 Holdings identified the John Doe defendant's Internet Protocol (IP) address and Internet Service Provider (ISP), Comcast Cable Communications, LLC.
- Using geolocation technology provided by Maxmind, Inc., Strike 3 Holdings traced the defendant's IP address to a physical address within the District of Columbia.
Procedural Posture:
- Strike 3 Holdings, LLC (Plaintiff) filed a lawsuit against John Doe subscriber assigned IP address 73.128.188.178 (Defendant) in the United States District Court for the District of Columbia, alleging copyright infringement.
- Strike 3 Holdings, LLC filed a motion for leave to serve a third-party subpoena on Defendant's Internet Service Provider (ISP), Comcast Cable Communications, LLC, prior to a Rule 26(f) conference, in order to discover Defendant's identity.
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Issue:
Does a plaintiff establish "good cause" to serve a third-party subpoena for an unknown defendant's identity prior to a Rule 26(f) conference when the discovery is necessary to identify the defendant for service and the plaintiff has a good faith belief, based on geolocation technology, that the defendant resides within the court's jurisdiction?
Opinions:
Majority - G. Michael Harvey
Yes, a plaintiff establishes "good cause" to serve a third-party subpoena for an unknown defendant's identity prior to a Rule 26(f) conference when the discovery is necessary for the suit to progress and the plaintiff has a good faith belief, based on reliable geolocation technology, that the defendant resides within the court's jurisdiction. The court applied the "good cause" standard, noting that discovery is necessary because the suit cannot progress without first identifying the defendant to effect service, as established in Arista Records, LLC v. Does 1–19. The court found that Strike 3 Holdings established a good faith basis for believing the defendant resides in the District of Columbia by using geolocation technology from Maxmind, Inc., which traced the IP address to a physical address in the District. This use of geolocation technology, which can estimate the location of internet users based on their IP addresses, suffices to provide a basis for determining jurisdiction according to D.C. Circuit precedent (AF Holdings, LLC v. Does) and D.D.C. cases (Nu Image, Inc. v. Does, Malibu Media, LLC v. Doe). The court further found that a protective order was warranted, given the sensitive nature of adult content and the risk of false identification, to safeguard the defendant's identity and prevent annoyance, embarrassment, or undue burden. The protective order specifies that the ISP must provide the defendant with notice of the subpoena and allow at least ten business days for the defendant or ISP to move to quash.
Analysis:
This case clarifies the application of the "good cause" standard for early discovery in copyright infringement cases against anonymous BitTorrent users, particularly regarding personal jurisdiction in the D.C. Circuit. It affirms that geolocation technology provides a sufficient basis for a good faith belief of residency, enabling plaintiffs to identify unknown defendants. The mandatory protective order underscores the court's balancing act between enabling copyright enforcement and protecting privacy, setting a precedent for similar cases involving sensitive content and anonymous internet activity.
