Unreported / Non-Citable
Background
Strike 3 Holdings, LLC filed a copyright infringement complaint against a John Doe defendant identified only by IP address 23.119.229.224, alleging the defendant used the BitTorrent protocol to copy and distribute 29 of Strike 3's adult motion pictures without authorization. Strike 3 traced the IP address to AT&T Internet as the service provider and to a location within the Southern District of California using MaxMind geolocation technology. Because the defendant's identity was unknown, Strike 3 filed an ex parte application for leave to serve a third-party subpoena on AT&T Internet before the Rule 26(f) conference to obtain the subscriber's name and address, arguing it could not serve the defendant or pursue the lawsuit without this information.
The court applied the three-factor test from Columbia Insurance Co. v. seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999), as adopted in the Southern District of California for early discovery motions to identify anonymous defendants: (1) whether the plaintiff has identified the missing party with sufficient specificity to show the defendant is a real person subject to the court's jurisdiction; (2) whether the plaintiff has identified all prior steps taken to locate the defendant; and (3) whether the plaintiff's suit could withstand a motion to dismiss. No opposition was filed because no defendant had been named or served.
The Court’s Holding
The court found all three Columbia Insurance factors satisfied. First, Strike 3 sufficiently identified the Doe defendant by tracing the IP address to a location within the district on three occasions using MaxMind geolocation and showing the alleged infringement occurred via BitTorrent, establishing the defendant is likely a real person within the court's jurisdiction. Second, Strike 3 demonstrated it had attempted to identify the defendant through online searches, public records, and cybersecurity consultants but had no other means to obtain the subscriber's identity. Third, Strike 3 alleged a prima facie case of direct copyright infringement — ownership of the works and unauthorized copying and distribution via BitTorrent — sufficient to survive a motion to dismiss under Ninth Circuit precedent.
The court granted the motion and authorized service of a Rule 45 subpoena on AT&T Internet limited to the subscriber's name and physical address. The subpoena must include a copy of the order and allow AT&T at least 45 days to comply. The court also entered a limited protective order permitting the defendant to proceed pseudonymously as "John Doe" for 60 days after service of the summons and complaint, and required AT&T to provide a copy of the order to the subscriber within 14 days under 47 U.S.C. § 551(c)(2)(B). The subscriber has 21 days from receipt to challenge the subpoena, and AT&T may move to quash before the compliance deadline without disclosing the sought information.
Key Takeaways
- Courts in the Southern District of California routinely grant early discovery to copyright plaintiffs seeking to identify anonymous BitTorrent infringers when the plaintiff satisfies the three-factor Columbia Insurance test.
- Geolocation evidence tracing an IP address to the district, combined with allegations of BitTorrent use, is sufficient to establish the defendant is a real person within the court's jurisdiction for early discovery purposes.
- A plaintiff's inability to identify an infringer through methods other than an ISP subpoena satisfies the second Columbia Insurance factor, even if the plaintiff's investigation consisted of online searches and consultant reviews.
- Allegations of copyright ownership and unauthorized distribution via BitTorrent establish a prima facie case of direct infringement sufficient to withstand a motion to dismiss at the early discovery stage.
- The court imposed procedural safeguards: a 45-day compliance period for the ISP, a 14-day notice requirement to the subscriber under the Cable Communications Policy Act, a 21-day window for the subscriber to challenge the subpoena, and a 60-day limited protective order allowing the defendant to proceed pseudonymously.
Why It Matters
This order reflects the established practice in the Southern District of California of granting ex parte early discovery applications in Strike 3 Holdings copyright cases, applying a consistent three-factor framework that balances the plaintiff's need to identify unknown infringers against the privacy interests of internet subscribers. The protective order and statutory notice requirements mitigate the risk of coercive settlement tactics while enabling the plaintiff to pursue its claims.