United States District Court, N.D. California
ORDER DENYING MOTION TO QUASH RE: DKT. NO.
C. SPERO CHIEF MAGISTRATE JUDGE.
Strike 3 Holdings, LLC (“Strike 3”) brought this
action for copyright infringement against Defendant John Doe,
whose real name is unknown to Strike 3 and whom Strike 3 has
identified only by the IP address 188.8.131.52, which Strike
3 alleges was used to illegally download and share Strike
3's copyrighted pornographic videos over the BitTorrent
file sharing protocol. Strike 3 previously sought leave to
serve an early subpoena on AT&T, Inc.-the internet
service provider (or “ISP”) that Strike 3
believes assigned Doe's IP address-to determine the
identity of the subscriber to whom the IP address was
assigned, and supported that request with evidence that the
IP address was assigned by AT&T to a subscriber in
Oakland, California and was used to share forty-eight
copyrighted works owned by Strike 3. The Court granted that
application, with the caveat that “any name or other
personal identifying information of any current or proposed
defendant shall be filed UNDER SEAL in all filings and not
otherwise disclosed.” Order Granting Ex Parte
Application (dkt. 10) ¶ 9.
who has not yet been identified or served, now moves to quash
the subpoena served on AT&T on the basis that “the
right to privacy outweighs [Strike 3's] ungrounded
fishing expedition.” Mot. (dkt. 19) at 1. Doe relies on
a handful of district court decisions declining to authorize
similar subpoenas, as well as a 2011 news article describing
a somewhat similar lawsuit by a different plaintiff that
named forty-six defendants, including an older woman who
maintained that she had not downloaded the videos at issue.
See generally Mot.; Request for Judicial Notice
(dkt. 19-1) Ex. A. Strike 3 opposes the motion, see
Opp'n (dkt. 22) and Doe did not file a reply brief. The
Court finds the matter suitable for resolution without oral
argument and VACATES the hearing previously set for July 12,
2019. For the reasons discussed below, Doe's motion is
“‘the use of “John Doe” to identify a
defendant is not favored,' in circumstances ‘where
the identity of alleged defendants will not be known prior to
the filing of a complaint . . . the plaintiff should be given
an opportunity through discovery to identify the unknown
defendants, unless it is clear that discovery would not
uncover the identities, or that the complaint would be
dismissed on other grounds.” Soo Park v.
Thompson, 851 F.3d 910, 928 n.21 (9th Cir. 2017)
(quoting Gillespie v. Civiletti, 629 F.2d 637,
642-43 (9th Cir. 1980)); see also Glacier Films (USA),
Inc. v. Turchin, 896 F.3d 1033, 1036 (9th Cir. 2018)
(characterizing as “a practical solution” the
District of Oregon's case management order
“allow[ing] copyright holders to seek limited discovery
from an Internet Service Provider to establish a potential
of the Federal Rules of Civil Procedure states that a court
must quash a subpoena, upon timely motion, if it
“requires disclosure of privileged or other protected
matter” or “subjects a person to undue
burden.” Fed.R.Civ.P. 45(d)(3)(A)(iii)-(iv). Motions to
quash are evaluated in the context of Rule 26, which states
that “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the
action, the amount in controversy, the parties' relative
access to relevant information, the parties' resources,
the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1).
starting point, Doe's request for judicial notice of the
2011 article is denied. Even assuming for the sake of
argument that the Court could take notice of the
article's existence, judicial notice would not be
appropriate for the truth of the article's contents.
See, e.g., Lee v. City of Los Angeles, 250
F.3d 668, 689 (9th Cir. 2001) (holding that although the
district court could take judicial notice of “the fact
that [a document] was signed, ” it erred in taking
“judicial notice of disputed facts stated in public
records”); Acasio v. San Mateo County, No.
14-cv-04689-JSC, 2015 WL 5568345, at *1 n.1 (N.D. Cal. Sept.
22, 2015) (“It is well established that the Court may
take judicial notice of records from other proceedings not to
credit the truth of the allegations or facts set forth
therein, but rather ‘for purposes of noticing the
existence of the [prior] lawsuit, the claims made in the
lawsuit, and the fact that various documents were filed
therein.'” (citation omitted)). The 2011 article,
which Doe offers for the truth of its reporting, is hearsay
not subject to judicial notice. Regardless, even if the Court
were to consider the article, it is irrelevant, as it
describes claims by a different plaintiff against different
defendants, in a type of mass joinder action not permitted by
this Court, with no indication that the court there had taken
action to protect the privacy of potential defendants
comparable to the restrictions in this Court's order
granting Strike 3's application to serve a subpoena.
See generally Hard Drive Productions, Inc. v. Does
1-188, 809 F.Supp.2d 1150 (N.D. Cal. 2011) (holding
joinder of more than one Doe defendant inappropriate in a
BitTorrent copyright infringement action), disapproved on
other grounds by Williams v. King, 875 F.3d 500, 505
(9th Cir. 2017).
Court also respectfully disagrees with the decisions on which
Doe relies, or concludes that they rest on premises
inapplicable to this case. In denying an application for a
subpoena, the District Court for the District of Columbia
relied heavily on the “defendant's weighty privacy
expectation” against “having [their] name and
reputation publicly-and permanently-connected to websites
like Tushy and Blacked Raw.” See
Strike 3 Holdings, LLC v. Doe, 351 F.Supp.3d 160, 164
(D.D.C. 2018), appeal docketed, No. 18-7188 (D.C.
Cir. Dec. 19, 2018). That decision has been heavily
criticized and rarely followed. See, e.g.,
Strike 3 Holdings, LLC v. Doe, No.
2:18-cv-02637-MCE-CKD, 2019 WL 935390, at *5 (E.D. Cal. Feb.
26, 2019) (citing district court decisions declining to
follow the D.C. decision). Here, the Court's order
granting Strike 3's application for a subpoena restricts
Strike 3's ability to publicly tie any individual to the
videos at issue, by prohibiting Strike 3 from publicizing a
subscriber's name or other identifying information
obtained as a result of its subpoena.
D.C. court also characterized its holding as limited, given
that “the typical [copyright infringement] case does
not involve pornography, ” the copyright eligibility of
which is “unsettled in many circuits.”
Id. at 165 & n.5 (citation and internal
quotation marks omitted). In the Ninth Circuit, however,
pornography's protection under copyright law has been
settled for decades. See Jartech, Inc. v. Clancy,
666 F.2d 403, 405-06 (9th Cir. 1982). Doe offers no argument
in this case why the holder of copyright to pornographic
material is less entitled to discovery to identify a
purported infringer than the owner of any other work would
be. See, e.g., Strike 3 Holdings, LLC v.
Doe, No. 18-CV-2648 (VEC), 2019 WL 78987, at *4
(S.D.N.Y. Jan. 2, 2019) (stating that Strike 3's
“interest in protecting its copyrighted material from
infringement . . . is not lessened by the salacious content
of the material”).
perhaps closer question is whether the subpoena should be
quashed based on the inherent imprecision of an IP address as
a means to identify the individual who purportedly infringed
Strike 3's copyrights. In affirming dismissal under Rule
12(b)(6), the Ninth Circuit has summarized the limitations of
an IP address for such purposes:
Although copyright owners can often trace infringement of
copyrighted material to an IP address, it is not always easy
to pinpoint the particular individual or device engaged in
the infringement. Internet providers, such as Comcast or AT
& T, can go so far as to identify the individual who is
registered to a particular IP address (i.e., an account
holder) and the physical address associated with the account,
but that connection does not mean that the internet
subscriber is also the infringer. The reasons are
obvious-simply establishing an account does not mean the
subscriber is even accessing the internet, and multiple
devices can access the internet under the same IP address.
Identifying an infringer becomes even more difficult in
instances like this one [involving an IP address registered
to an adult care home], where numerous people live in and
visit a facility that uses the same internet service. While
we recognize this obstacle to naming the correct defendant,
this complication does not change the plaintiff's burden
to plead factual allegations that create a reasonable
inference that the defendant is the infringer.
Cobbler Nev., LLC v. Gonzales, 901 F.3d 1142,
1146-47 (9th Cir. 2018); see also, e.g., Patrick
Collins, Inc. v. Doe 1, 288 F.R.D. 233, 237-39 (E.D.N.Y.
2012) (noting that “even . . . a secured network does
not reduce the likelihood . . . that the infringing activity
was conducted by a guest, family member, or ...