Introduction

Strike 3 Holding, LLC is a prolific filer of federal copyright infringement actions. They have filed thousands of lawsuits across the United States in states like Illinois, Pennsylvania, New Jersey, New York, Florida, Texas and California.

Their lawsuit alleges illegal file sharing of their adult pornographic movies using BitTorrent protocol. Their argument is that by downloading and sharing their movies, they are deprived of subscription income leading to millions of dollars of damages, allegedly.

Many defendants come from other countries where there are no intellectual property laws, and thus, many accused of infringement have no idea they were doing something wrong. Settlements can reach as high as $30,000 or more. Our law firm handles the bulk of the California cases which are predominantly filed in the Central and Northern District Courts. This blog discusses a common question I receive which is “I received the subpoena notice, what happens now?”

Subpoena to your ISP

When the lawsuit is filed against John Doe, Strike 3 Holdings seeks, and is typically granted “early discovery.” This allows them to send a subpoena to the ISP (ex. Cox, Comcast, AT&T, Verizon, Charter) to uncover the name and address of the subscriber of the internet account. This allows them to conduct “due diligence” to see if the subscriber is also the infringer. If so, the complaint can be amended to add additional facts (see Cobbler Nevada) and this allows the case to proceed to litigation. So, the subpoena to the ISP is part of the process.

Should you file a Motion to Quash?

A common question I get from clients is “should we file a motion to quash the subpoena?” Generally speaking, the answer is NO. While many quash motions were successful in Florida when Strike 3 was filing “Bill of Discovery” cases, the federal courts have not shown a willingness to quash these subpoenas which are directed toward the ISP, not the Defendant.

Here are the grounds under F.R.C.P. 45 to seek to quash a subpoena:

(3) Quashing or Modifying a Subpoena.

(A) When Required. On timely motion, the court for the district where compliance is required must quash or modify a subpoena that:

(i) fails to allow a reasonable time to comply;

(ii) requires a person to comply beyond the geographical limits specified in Rule 45(c);

(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or

(iv) subjects a person to undue burden.

(B) When Permitted. To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires:

(i) disclosing a trade secret or other confidential research, development, or commercial information; or

(ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party.

If one or more of these apply, filing a motion to quash may make sense. Otherwise, you can wind up raising the costs of settlement.

Here is one case involving a Strike 3 Motion to Quash which was denied showing what a Court’s response might look like:

“Defendant moves to quash the subpoena on the basis that his wireless network is not password protected and the house is surrounded by vacation rentals. ECF No. 12. Defendant states there are currently five vacation rentals within 100 feet of the house and it is highly possible someone from one of these vacation rentals downloaded copyright protected material. ECF No. 12. Defendant asks the court to quash the subpoena, asserting the response to the subpoena will not identify the unknown infringer.

In sum, defendant claims innocence. While this defense may prove to be true, courts in this and other circuits have consistently rejected the argument that a defendant’s status as a registered subscriber of an IP address associated with infringing activity is insufficient to support discovery of the subscriber’s identity where others could have used the IP address. E.g., Strike 3 Holdings, LLC v. Doe, No. 19cv2425-JAH (LL), 2020 U.S. Dist. LEXIS 84577, at *9 (S.D. Cal. May 3, 2020) (“although an IP address and a subscriber’s name alone may be insufficient to state a claim of infringement, …subpoenas may be used to determine a subscriber’s name”); Strike 3 Holdings, LLC v. Doe, No. 4:18-cv-04993- KAW, 2019 U.S. Dist. LEXIS 19497, at *6 (N.D. Cal. Feb. 6 2019); Strike 3 Holdings, LLC v. Doe, No. 2:18-cv-02637 MCE CKD, 2019 U.S. Dist. LEXIS 30674, at ** 9 & 11 (E.D. Cal. Feb. 26, 2019) (citing collected cases).

At this point in the litigation, plaintiff has made an adequate showing of the need to subpoena defendant’s ISP to determine whether it can obtain the identity of the proper defendant. Defendant cites no authority for preventing the discovery.

To the extent defendant alleges factual innocence, such a consideration is premature and may be raised in a motion to dismiss. The subscriber’s identity will remain protected, both in and out of court, until the court orders otherwise. ECF No. 7. See Strike 3 Holdings, LLC V. John Doe Subscriber Assigned Ip Address 174.87.193.119, 2:20cv1989.

Does a John Doe defendant need to do anything to notify their ISP?

Another common question is “should I notify my ISP?” Again, the answer is typically no, if you are retaining legal counsel, we will seek to resolve the case early on, if possible, and if the case can be settled before the subpoena release date, a notice of abeyance can be sent to the ISP.

What is a notice of abeyance?

If the case settles before the ISP release date, opposing counsel (many times the Bandlow Law Firm in California), will send a “notice of abeyance” notifying the ISP that there is no need to turn over the requested information. The ISP will respond confirming this.

Important video resources

If you are involved in a Strike 3 Holdings copyright infringement case, here are a few good videos to watch:

1. Copyright infringement damages

2. What if I don’t respond?

3. Overview of BitTorrent litigation

Conclusion

Strike 3 Holding, LLC defense can be tricky. The subpoena is the subject of many questions from clients.