JOHN R. TUNHEIM, District Judge.
On April 30, 2018, Magistrate Judge David T. Schultz denied Plaintiff Strike 3 Holdings, LLC's ("Strike 3") Motion for Leave to Serve A Third-Party Subpoena. Strike 3 now appeals the Order. Strike 3 knows the Defendant only by an internet protocol ("IP") address, and seeks to discover Defendant's true name and address by serving a subpoena on Defendant's Internet Service Provider ("ISP"), Comcast Cable Communications, LLC ("Comcast"), prior to a Rule 26(f) conference. Because there is good cause to issue the subpoena, the Court will grant Strike 3's appeal and reverse the Magistrate Judge's Order. Given the sensitive nature of the allegations, the Court will also issue a protective order.
Strike 3 is the owner of "award winning, critically acclaimed adult motion pictures," which it distributes through DVD sales and paid website subscriptions. (Compl. ¶¶ 2, 13, Mar. 31, 2018, Docket No. 1.) Strike 3 alleges that Defendant infringed its copyrights by downloading and distributing thirty-one of Strike 3's movies using the BitTorrent protocol, a system designed to efficiently distribute large files over the internet. (Id. ¶¶ 4, 17-23.) Strike 3 hired a private investigator to investigate piracy of its videos through the BitTorrent system. (Id. ¶ 24.) The private investigator established a connection with Defendant's IP address through BitTorrent, and downloaded one or more of Strike 3's copyrighted films from Defendant. (Id. ¶¶ 24-25.) However, the investigator was only able to identify Defendant by an IP address. An IP address is merely a number assigned by Defendant's Internet Service Provider ("ISP"), Comcast; and only Comcast can match the IP address to Defendant's actual name and address. (Id. ¶ 12.)
Strike 3 seeks monetary and equitable relief for Defendant's alleged copyright infringement. Since Strike 3 can only identify Defendant by an IP address, however, Strike 3 has been unable to complete service of process. In its motion, Strike 3 seeks leave to subpoena Comcast to discover the name and address of the party to whom this IP address is registered. (Mot. for Leave to Serve a Third-Party Subpoena, April 19, 2018, Docket No. 5).
Magistrate Judge Schultz denied Strike 3's motion after identifying a conflict between the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. § 512, the Communications Act, 47 U.S.C. § 551, and Rule 45 of the Federal Rules of Civil Procedure. (Order, April 20, 2018, Docket No. 14.) The DMCA establishes a procedure enabling a copyright holder to obtain and serve subpoenas on ISPs to identify alleged copyright infringers and protects ISPs from liability for copyright infringement. See In re Charter Commc'ns, Inc., 393 F.3d 771, 775 (8
The standard of review on an objection to a magistrate judge's order depends on whether that order is dispositive. The district court reviews a magistrate's dispositive decisions de novo, while it reviews non-dispositive rulings for clear error. See Fed. R. Civ. P. 72. In determining whether a ruling is dispositive, Rule 72 "permits the courts to reach commonsense decisions rather than becoming mired in a game of labels." E.E.O.C. v. Schwan's Home Serv., 707 F.Supp.2d 980, 988 (D. Minn. 2010) (quoting Charles A. Wright et al., Federal Practice and Procedure: Civil 2d § 3068, at 338 (1997)). "Courts typically consider `the impact on the merits of the case in deciding whether [the motion] should be characterized as dispositive.'" Id. (quoting Wright et al., supra, at 345). Here, the Court does not decide whether the Magistrate Judge's order was dispositive, because it would reach the same conclusion under either standard of review.
The Magistrate Judge found a conflict between the DMCA, the Communications Act, and Rule 45. Specifically, the Magistrate Judge found that because the information Strike 3 seeks in discovery is protected under the Communications Act, it would be improper to subpoena the information under Rule 45 or the DMCA. Because the DMCA establishes a process for copyright holders to obtain subpoenas without engaging in litigation, and the Communications Act provides for disclosure of ISP subscribers' protected information by court order, the Court finds no conflict between these statutes and a Rule 45 subpoena.
The DMCA establishes a process by which a copyright holder can request the clerk of a United States district court to issue a subpoena to an ISP
The Court also finds instructive the Eighth Circuit's opinion in Killer Joe Nevada, LLC v. Does 1-20, 807 F.3d 908 (8
The privacy protections of the Communications Act also do not foreclose a Rule 45 subpoena. Under the Communications Act, a cable operator (here, Comcast) "shall not disclose personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned." 47 U.S.C. § 551(c)(1). The Magistrate Judge held that the privacy protections afforded by the Communications Act directly conflicted with Strike 3's Rule 45 subpoena request. However, the Communications Act expressly allows disclosure through a court-ordered subpoena: "A cable operator may disclose such information if the disclosure" is "made pursuant to a court order authorizing such disclosure," provided "the subscriber is notified of such order by the person to whom the order is directed." 47 U.S.C. § 551(c)(2)(B).
The Court therefore finds that neither the DMCA nor the Communications Act forecloses the pre-discovery third-party subpoena Strike 3 requests. The question thus becomes whether a subpoena is appropriate.
Although the Eighth Circuit has not itself articulated a standard governing whether early discovery is appropriate, "District Courts within the circuit generally utilize a `good cause' standard." ALARIS Grp., Inc. v. Disability Mgmt. Network, Ltd., No. 12-cv-446 (RHK/LIB), 2012 WL 13029504, at *2 (D. Minn. May 30, 2012) (collecting cases). In another case in this District involving Strike 3, Judge Frank considered the following five factors in deciding whether to permit early discovery to establish an alleged copyright infringer's identity:
Strike 3 Holdings, LLC v. John Doe, No. 18-cv-774 (DWF/DTS), 2018 WL 4210202 (D. Minn. Sept. 4, 2018) (quoting Arista Records, LLC v. Doe 3, 604 F.3d 110, 119 (2d Cir. 2010)).
The Court finds Judge Frank's opinion persuasive. Because that opinion concerned substantially the same facts, and correctly applied the Arista Records factors, the Court adopts its analysis:
Strike 3 Holdings, LLC, v. Doe, 2018 WL 4210202, at *2 (footnotes omitted).
While the Court will grant Strike 3's motion, it is mindful of Defendant's privacy interests. The allegations in this case are of a sensitive nature, and it is possible the ISP subscriber is not the individual who distributed Strike 3's copyrighted material. It is also plausible that the subscriber would, at least, know who had access to his or her IP address. Without this information, Strike 3 cannot hope to identify the Defendant, and cannot vindicate its copyrights.
Because the ISP subscriber may not be the individual who infringed Strike 3's copyrights, and given the sensitive nature of the allegations, the Court will issue a protective order, described below, establishing limits and procedural safeguards governing Strike 3's subpoena.
Based on the foregoing, and all the files, records, and proceedings herein,
1. Plaintiff's Appeal [Docket No. 15] of Magistrate Judge David T. Schultz's April 30, 2018 Order [Docket No. 14] is
2. Magistrate Judge David T. Schultz's April 30, 2018 Order [Docket No. 14] is
3. Plaintiff's Motion for Leave to Serve a Third-Party Subpoena [Docket No. 5] is