             Case 3:19-cv-00723-JCS Document 19-1 Filed 05/28/19 Page 1 of 19




     Rabin Nabizadeh (SBN #235978)
 1   SUMMIT DEFENSE, APC
     1970 Broadway, Ste 1145,
 2
     Oakland, CA 94612-2210
 3   TEL: 3067358909
     Fax: 3067358909
 4   Email: herreraryan@example.net

 5   Jonathan C. Do, Esq. (SBN 184020)
     FUSION LAW, APC
 6   1150 Murphy Avenue, Suite 240
     San Jose, CA 95131
 7   Tel: 3067358909
     Email: herreraryan@example.net
 8
     Specially Appearing for Defendant John Doe
 9
                                   UNITED STATES DISTRICT COURT
10
                                  NORTHERN DISTRICT OF CALIFORIA
11

12
     STRIKE 3 HOLDINGS, LLC,                           ) Case No.: 3:19-CV-00723-JCS
13
                                                       )
                     Plaintiff,                        ) DEFENDANT JOHN DOE'S REQUEST FOR
14           vs.                                       ) JUDICIAL NOTICE
                                                       )
                                                       )
15   JOHN DOE, subscriber assigned IP address
                                                       )
     3067358909                                     )
16
                                                       )
                          Defendant                    )
17
                                                       )
18
                                                       )

19
            Defendant JOHN DOE, subscriber assigned IP address 3067358909
20
     move pursuant to FED . R. EVID §201 for an Order taking judicial notice of the following court
21
     decisions and newspaper publication because A Court may take judicial notice of adjudicative facts
22
     that are not subject to reasonable dispute where (1) they are generally known within the Court’s
23
     territorial jurisdiction; or (2) they can be accurately and readily determined from sources whose
24
     accuracy cannot reasonably be questioned.
25


                                                                                                         6

                                                     PAGE 6
             Case 3:19-cv-00723-JCS Document 19-1 Filed 05/28/19 Page 2 of 19




 1          1/ Newspapar Article published by SFGAte, on July 15, 2011, " Lawsuit says grandma

 2   illegally downloaded porn", attached hereto as Exhibit A.

 3          2/ Strike 3 Holdings, LLC v Doe, Case No.: 18-1425 (District of Columbia November

 4   16, 2018), attached hereto as Exhibit B.

 5          3/    Strike 3 Holdings, LLC vs Doe, Case No.: 18cv1355-JLS(KSC), SD Cal, March 21,

 6   2019, attached hereto as Exhibit C.

 7          Dated: 5/27/2019                     Respectfully submitted,

 8

 9                                               Jonathan C. Do , Esq.
10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


                                                                                                 7

                                                  PAGE 7
Case 3:19-cv-00723-JCS Document 19-1 Filed 05/28/19 Page 3 of 19




                      EXHIBIT A
Lawsuit says grandma illegally downloaded porn - SFGate               https://www.sfgate.com/business/article/Lawsuit-says-grandma-illegally...
                         Case 3:19-cv-00723-JCS Document 19-1 Filed 05/28/19 Page 4 of 19


                 https://www.sfgate.com/business/article/Lawsuit-says-grandma-illegally-downloaded-porn-2354720.php


                Lawsuit says grandma illegally downloaded porn
                Lawsuit says grandma downloaded online porn
                By James Temple Published 4:00 am PDT, Friday, July 15, 2011




                       Jane is in her 70s, a retired widow who spends her days doing volunteer work in
                       the East Bay and fussing over her grandchildren. She also downloads porn illegally
                over BitTorrent.


                That, at least, is the claim in an April lawsuit against her and dozens of other Jane and
                John Does by a Chicago law firm that's been busily filing similar cases around the
                country.

                   RECOMMENDED VIDEO
                                                                                      It's also made a habit of
                                                                                      strongly suggesting that these



1 of 4                                                                                                                       5/27/19, 1:33 PM
Lawsuit says grandma illegally downloaded porn - SFGate         https://www.sfgate.com/business/article/Lawsuit-says-grandma-illegally...
                         Case 3:19-cv-00723-JCS Document 19-1 Filed 05/28/19 Page 5 of 19

                                                                                "digital pirates" settle out of
                                                                                court for several thousand
                dollars. Letters to defendants helpfully remind them the amount is below what they'd
                probably pay in attorney's fees and that settling would avoid publicly linking their names
                to pornography.


                This particular Jane (who didn't want her real name used for that very reason) said she's
                never downloaded porn and doesn't know what a BitTorrent is. She can't afford an
                attorney to make her case, but she's not about to settle either.


                "It smacks of extortion," she said.


                Some legal observers agree.


                Steele Hansmeier PLLC filed the case against "Does 1-46" in U.S. District Court in
                San Francisco on behalf of Hard Drive Productions. The growing law firm has now
                lodged complaints on behalf of adult companies against about 10,000 defendants,
                partner John Steele said.


                When asked about the allegations that their tactics amount to a shakedown, Steele said
                his firm is simply fighting back against the widespread copyright theft that threatens to
                put his clients out of business.


                Other porn companies, media businesses and law firms have embraced similar
                strategies, which San Francisco digital rights group Electronic Frontier Foundation
                describes as "copyright trolling."


                Low settlement fees
                The mass filings, embarrassing allegations and low settlement fees are all carefully
                calibrated to get people to pay up, regardless of whether they've done anything wrong,
                said Matt Zimmerman, senior staff attorney at the Electronic Frontier Foundation.


                "It puts these defendants in a tough spot, especially with the coercive element of the
                porn allegation," he said.


                The June letter to Jane emphasized that copyright owners can recover up to $150,000 in




2 of 4                                                                                                                 5/27/19, 1:33 PM
Lawsuit says grandma illegally downloaded porn - SFGate         https://www.sfgate.com/business/article/Lawsuit-says-grandma-illegally...
                         Case 3:19-cv-00723-JCS Document 19-1 Filed 05/28/19 Page 6 of 19

                damages per file. It mentions the possibility of naming her several times. And it invited
                her to quickly and quietly settle matters by paying $3,400 via credit card.


                A law firm representative followed up with a direct phone call to Jane just before the
                settlement offer expired.


                To be clear, many - and maybe even most - of those accused in these cases probably
                downloaded the files. But it's easy to imagine scenarios where some didn't, yet still feel
                pressured to settle.


                Like, say, a widow in her 70s who, when asked by a reporter, didn't know whether her
                wireless Internet service was password protected. She did know, however, that a handful
                of young men lived next door.


                The letter from Steele suggests that someone else using an unsecured wireless network
                isn't a viable legal defense for the account holder, noting that downloaders of child
                pornography have employed this excuse to no avail.


                But that's deliberately misleading, Zimmerman said.


                "There is no legal doctrine that says you're responsible for what somebody else does on
                your Internet connection," he said.


                In fact, there are examples of the precise opposite occurring.


                Open networks
                Earlier this year, charges were dropped against a man in Buffalo, N.Y., accused of
                downloading child pornography, after police turned their attention to a neighbor
                allegedly using the man's open Wi-Fi network.


                Jane said she'll go to trial without an attorney if necessary and "throw herself on the
                mercy of the court."


                "I'd say to the judge, 'I have no idea how this happened,' " she said. "If Sony can get
                hacked, if the Pentagon can get hacked, my goodness, what chance does an individual
                have?"




3 of 4                                                                                                                 5/27/19, 1:33 PM
Lawsuit says grandma illegally downloaded porn - SFGate                 https://www.sfgate.com/business/article/Lawsuit-says-grandma-illegally...
                         Case 3:19-cv-00723-JCS Document 19-1 Filed 05/28/19 Page 7 of 19

                But Steele's not buying such excuses. In an interview, he said anyone who fails to
                secure their Wi-Fi is as responsible for the subsequent crimes or tragedies as a parent
                who leaves a loaded gun within reach of a 3-year old.


                Of course, nobody dies when the teenager next doors nabs a wireless signal for a glimpse
                of breasts.


                None of the cases pursued by Steele Hansmeier has reached a final verdict at trial, but
                the firm has moved forward with claims against individuals, Steele said. Most people
                simply decide to settle, he added.


                Steele stressed that the vast majority of these people have committed a crime and the
                few who haven't have every opportunity to defend themselves.


                "There's no sort of sneaky, in-the-shadows efforts here," he said.


                Dot-commentary runs Wednesdays, Fridays and Sundays. Follow @jtemple on Twitter
                or e-mail herreraryan@example.net.

                                                     © 2019 Hearst Communications, Inc.




4 of 4                                                                                                                         5/27/19, 1:33 PM
Case 3:19-cv-00723-JCS Document 19-1 Filed 05/28/19 Page 8 of 19




                      EXHIBIT B
               Case 3:19-cv-00723-JCS Document 19-1 Filed 05/28/19 Page 9 of 19



                                                  Civil Case No. 18-1425
                             UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


                                     Strike 3 Holdings, LLC v. Doe
                                                     Decided Nov 16, 2018



    Royce C. Lamberth United States District Judge                 they watched a specific TV show. But in many
                                                                   cases, the method is enough to force the Internet
    MEMORANDUM OPINION
                                                                   service provider (ISP) to unmask the IP address's
    Strike 3 Holdings, LLC produces "award winning,                subscriber. And once the ISP outs the subscriber,
    critically acclaimed adult motion pictures."                   permitting them to be served as the defendant, any
    Compl. ¶ 2. Or, as the Miami Herald describes, it              future Google search of their name will turn-up
    is "[t]he Steven Spielberg of porn." Adiel Kaplan,             associations with the websites Vixen, Blacked,
    The Steven Spielberg of Porn Sues to Make                      Tushy, and Blacked Raw. The first two are
    Floridians Stop Pirating His Raunchy Videos,                   awkward enough, but the latter two cater to even
    Miami Herald (July 12, 2018, 4:48 PM),                         more singular tastes.
    https://www.miamiherald.com/news/local/article2
                                                                   Little wonder so many defendants settle. Indeed,
    14634930.html.
                                                                   the copyright troll's success rate comes not from
    Strike 3 is also a copyright troll. Its swarms of              the Copyright Act, but from the law of large
    lawyers hound people who allegedly watch their                 numbers. According to PACER, over the past
    content through Bittorrent, an online service                  thirteen months, Strike 3 has filed 1849 cases just
    enabling anonymous users to share videos despite               like this one in courts across the country—forty in
    their copyright protection. Since Bittorrent masks             this district alone—closely following the
    users' identities, Strike 3 can only identify an               copyright trolls who together consumed 58% of
    infringing Internet protocol (IP) address, using               the federal copyright docket in 2015. These serial
    geolocation technology to trace that address to a              litigants drop cases at the first sign of resistance,
    jurisdiction. This method is famously flawed:                  preying on low-hanging fruit and staying one step
    virtual private networks and onion routing spoof               ahead of any coordinated defense. They don't
    IP addresses (for good and ill); routers and other             seem to care about whether defendant actually did
    devices are unsecured; malware cracks passwords                the infringing, or about developing the law. If a
    and opens backdoors; multiple people (family,                  Billy Goat Gruff moves to confront a copyright
    roommates, guests, neighbors, etc.) share the same             troll in court, the troll cuts and runs back under its
    IP address; a geolocation service might randomly               bridge. Perhaps the trolls fear a court disrupting
    assign addresses to some general location if it                their rinse-wash-and-repeat approach: file a deluge
    cannot more specifically identify another. See,                of complaints; ask the court to compel disclosure
2   e.g., James Temple, Lawsuit *2 Says Grandma                    of the account holders; settle as many claims as
    Illegally Downloaded Porn, S.F. Chron. (July 15,               possible; abandon the rest. See Matthew Sag &
    2011,                    4:00                  AM),            Jake Haskell, Defense Against the Dark Arts of
    https://www.sfgate.com/business/article/Lawsuit-               Copyright Trolling, 103 Iowa L. Rev. 571, 575-80
    says-grandma-illegally-downloaded-porn-                        (2018); see also infra text accompanying notes 1-
    2354720.php. Simply put, inferring the person                  4.
    who pays the cable bill illegally downloaded a
    specific file is even less trustworthy than inferring
               Case 3:19-cv-00723-JCS Document 19-1 Filed 05/28/19 Page 10 of 19

3   *3 Here,  that approach led Strike 3 astray. Because         770 F. Supp. 2d 332, 351 (D.D.C. 2011) (Howell,
    Strike 3's need for discovery does not outweigh              J.) (applying this test); Arista Records v. Does 1-
    defendant's privacy expectation, the Court will              19, 551 F. Supp. 2d 1, 8 (D.D.C. 2008) (Kollar-
    deny Strike 3's ex parte motion to subpoena                  Kotelly, J.) (same).
    defendant's ISP to discover defendant's identity
                                                                 One can hardly blame the D.C. Circuit for its
    prior to the 26(f) conference. That sunders Strike
                                                                 silence. Of the forty cases Strike 3 has filed in this
    3's entire case, since a failure to identify defendant
                                                                 district (including seven on a single day), none
    makes effectuating service impossible. So the
                                                                 have reached the Court of Appeals. Twenty-two
    Court will dismiss this case without prejudice.
                                                                 have been voluntarily dismissed, all but one
    I. Strike 3 cannot subpoena                                  following the same formula: Strike 3 files a
    defendant's ISP because its discovery                        complaint (identical in every case except for the
    request lacks sufficient specificity and                     infringing IP address). A few weeks later, Strike 3
                                                                 files a motion to subpoena the anonymous
    does not overcome defendant's
                                                                 defendant's ISP prior to the Rule 26(f) conference
    privacy expectation.
                                                                 (identical in every case except for the particular
    Strike 3's request for early discovery falls short of        ISP to be served—Comcast, Verizon, or RCN).
    Rule 26's requirements. A plaintiff can only                 Satisfied by Strike 3's showing of likely personal
    discover an unknown defendant's identity through             jurisdiction, the court grants the motion, usually
    a court order under Rule 26(d)(1). But the rule              providing at least twenty days for the defendant to
    cabins a district court's discretion to order                move to quash the subpoena, and sometimes
    discovery to circumstances where a plaintiff                 providing for defendant's continued anonymity.
    shows good cause. See Fed. R. Civ. P. 26(b)(1).              Nothing happens for a few weeks, and then Strike
    And to show good cause, the D.C. Circuit requires            3 voluntarily dismisses the suit.1 In the lone
    establishing likely personal jurisdiction. AF                exception, Civil Case No. 18-810, the defendant
    Holdings, LLC v. Does 1-1058, 752 F.3d 990, 995              successfully obtained the court's approval to
    (D.C. Cir. 2014). Here, Strike 3 clears that hurdle.         proceed anonymously, and appeared to be
    See id. at 996 (suggesting using geolocation                 preparing a responsive pleading—but Strike 3
    services to track an infringing IP address to D.C.           dropped the case. The eighteen pending cases are
    justifies a good-faith belief this court has personal        no different: in twelve, the judge recently granted
    jurisdiction).                                               the early discovery motion and Strike 3 is waiting
    Yet the D.C. Circuit never said that was the only            for the ISP to respond2; in five, Strike 3's early
    requirement. For one, the Court must also balance            discovery motion remains pending3; and in one,
    Strike 3's need for discovery with a potentially-            Strike 3 hasn't yet filed its discovery motion.4 This
    noninfringing defendant's right to be anonymous.             sounds crazy, but its par for the copyright-trolling
    Only the Second Circuit has articulated this                 course. According to PACER, Malibu Media, LLC
    balance, looking to the plaintiff's showing of a         5   —another adult *5 film company—filed 150 cases
    prima facie claim of actionable harm; their                  against anonymous defendants in this district
    discovery request's specificity; their alternative           (7183 nationally) from 2012 to 2018, some joining
    means to obtain the subpoenaed information; the              dozens of individuals. How many of those cases
    need for the subpoenaed information to advance               reached the Court of Appeals? Zero.
    the claim; and the objecting party's privacy
                                                                       1 Civil Case Nos. 17-2338, 17-2342, 17-
    expectation. Arista Records, LLC v. Doe 3, 604
                                                                         2344, 17-2345, 17-2346, 17-2347, 18-536,
    F.3d 110, 119 (2d Cir. 2010) (citing Sony Music
                                                                         18-537     (allowing    defendant     to
    Entm't Inc. v. Does 1-40, 326 F. Supp. 2d 556,                       anonymously move to quash), 18-804, 18-
    564-65 (S.D.N.Y. 2004) (Chin, J.)); see also, e.g.,                  805 (allowing defendant to move to
4   Call of the Wild Movie, LLC v. Does 1- *4 1,062,                     proceed anonymously), 18-806, 18-807
          Case 3:19-cv-00723-JCS Document 19-1 Filed 05/28/19 Page 11 of 19
        (requiring the defendant's anonymity until               Applying the Second Circuit's test, and placing
        further court order), 18-808, 18-1193, 18-               great weight on defendant's privacy expectation,
        1197 (prohibiting Strike 3 or the ISP from               the Court will deny Strike 3's motion for early
        publicly revealing the defendant's identity),
                                                                 discovery. To be sure, Strike 3's alleged ownership
        18-1199 (allowing defendant to move to
                                                                 of an infringed copyright sets forth a prima facie
        proceed anonymously), 18-1424, 18-1426,
                                                                 claim. So too is the requested information
        18-1430, 18-1432, 18-1894.
                                                                 necessary to advance Strike 3's claim, just as
     2 Civil    Case    Nos.     18-1192        (allowing        subpoenaing the ISP is necessary to get the
        defendant      to    move         to      proceed        information.
        anonymously),          18-1198          (allowing
        defendant      to    move         to      proceed        But Strike 3's request lacks the type of specificity
        anonymously), 18-1427, 18-1429, 18-1431,                 the Second Circuit's test requires: that the request
        18-1898     (requiring      the        defendant's       will identify a copyright infringer who can be
        anonymity until further court order), 18-                sued. See Sony Music, 326 F. Supp. 2d at 566; see
        1899,     18-1902,       18-1903        (allowing        also Soo Park v. Thompson, 851 F.3d 910, 928
        defendant      to    move         to      proceed    6   n.21 (9th Cir. 2017) ("[I]n *6 circumstances
        anonymously), 18-1904 (requiring the                     'where the identity of alleged defendants will not
        defendant's anonymity until further court                be known prior to the filing of a complaint . . . the
        order), 18-2205, 18-2206.                                plaintiff should be given an opportunity through
     3 Civil Case Nos. 18-1425 (this case), 18-                  discovery to identify the unknown defendants,
        2204, 18-2210, 18-2211, 18-2212.                         unless it is clear . . . that the complaint would be
                                                                 dismissed on other grounds.'" (quoting Gillespie v.
     4 Civil Case No. 18-1896.
                                                                 Civiletti, 629 F.2d 637, 642-43 (9th Cir. 1980))).
Although the D.C. Circuit has never had the                      Strike 3 could not withstand a 12(b)(6) motion in
chance to elaborate on its test, the undersigned                 this case without resorting to far more intensive
considers the Second Circuit's test very                         discovery machinations sufficiently establishing
persuasive. And not for nothing, it comports with                defendant did the infringing—examining physical
the D.C. Circuit's more general observation that,                evidence (at least the computers, smartphones, and
when evaluating good cause under Rule 26,                        tablets of anyone in the owner's house, as well as
"interests in privacy may call for a measure of                  any neighbor or houseguest who shared the
extra protection." In re Sealed Case (Medical                    Internet), and perhaps even interrogatories,
Records), 381 F.3d 1205, 1215 (D.C. Cir. 2004)                   document requests, or depositions. Strike 3's
(internal quotation marks omitted) (quoting Fed.                 requested subpoena thus will not—and may never
R. Civ. P. 26(b) advisory committee's note (1970)).              —identify a defendant who could be sued.
"Moreover, in determining which interests to                     Similarly, even though "defendants have little
weigh in the Rule 26 balance, courts look to                     expectation of privacy in downloading and
statutory confidentiality provisions, even if they               distributing copyrighted [content] without
do not create enforceable privileges." Id. at 1215-              permission," Sony Music, 326 F. Supp. 2d at 566-
16. In this case, the Court looks to the                         67, Strike 3 fails to give the Court adequate
Communications Act, which protects cable                         confidence this defendant actually did the
subscribers' names and addresses. 47 U.S.C. §                    infringing. Given this uncertainty, Strike 3 cannot
551(c). But cf. id. at (c)(2)(B) (providing for                  overcome       defendant's     weighty      privacy
disclosure "pursuant to a court order authorizing                expectation. Imagine having your name and
such disclosure, if the subscriber is notified of                reputation publicly—and permanently—connected
such order by the person to whom the order is                    to websites like Tushy and Blacked Raw. (Google
directed").                                                      them at your own risk.) How would an improperly
                                                                 accused defendant's spouse react? His (or her)
              Case 3:19-cv-00723-JCS Document 19-1 Filed 05/28/19 Page 12 of 19

    boss? The head of the local neighborhood watch?         8   subpoena defendant's ISP. *8 II. Because Strike 3
    The risks of a false accusation are real; the               cannot effectuate service without subpoenaing
    consequences are hard to overstate and even                 defendant's ISP, its case must be dismissed.
    harder to undo. And Strike 3's flawed                             5 The Court notes "it is unsettled in many
    identification method cannot bear such great
                                                                        circuits"—including this one—"whether
    weight. Defendant may not be entitled to the same                   pornography is in fact entitled to protection
    presumption of innocence a criminal defendant                       against copyright infringement." Liberty
    enjoys, but the Court remains uncomfortable                         Media Holdings, LLC v. Swarm Sharing
    publicly presupposing defendant partook in                          Hash File, 821 F. Supp. 2d 444, 447 (D.
    particularly    prurient    pornography       given                 Mass. 2011); see also Next Phase Distb.,
    defendant's    tenuous     connection     to    the                 Inc. v. John Does 1-27, 284 F.R.D. 165,
7   infringement. Since Strike 3's *7 discovery request                 171 (S.D.N.Y. 2012) ("[I]f the Motion
    lacks the required specificity and does not                         Picture is considered obscene, it may not

    overcome defendant's privacy expectation, the                       be eligible for copyright protection."). But
                                                                        see Jartech, Inc. v. Clancy, 666 F.2d 403,
    Court will deny Strike 3's motion for early
                                                                        406 (9th Cir. 1982) (extending copyright
    discovery.
                                                                        protection   to   pornography);     Mitchell
    Though Strike 3 admits a protective order could                     Brothers Film Group v. Cinema Adult
    allow defendant to anonymously challenge the                        Theater, 604 F.2d 852, 854-58 (5th Cir.
    subpoena, Br. at 8, that hardly seems fair. That                    1979) (same). --------

    drags defendant into court and foists on them the
                                                                Denying Strike 3's discovery motion dooms its
    unenviable burden of hiring a lawyer or defending
                                                                claim. Simply put, Strike 3's inability to identify
    their reputation pro se, all before they've even
                                                                defendant makes effectuating service or
    been served. That's not how our system of
                                                                prosecuting the case impossible. So because Strike
    litigation is supposed to work. Moreover, the
                                                                3 cannot proceed with its claim, the Court
    inconsistency with which courts permit defendants
                                                                dismisses it.
    to proceed anonymously illustrates the
    ineffectiveness of this shield more generally. See          Strike 3 does not dispute this logic. It concedes "
    supra notes 1-2 and accompanying text.                      [d]efendant must be identified before this suit can
                                                                progress." See Br. at 5-6 (internal quotation marks
    An honest copyright holder might balk at this
                                                                omitted) (quoting Malibu Media, LLC v. Doe, 177
    result,    misunderstanding      it   to     slash
                                                                F. Supp. 3d 554, 556 (D.D.C. 2016)). But "
    congressionally endowed defenses against
                                                                [w]ithout information from the ISP," Strike 3
    increasingly creative and covert cyberpirates. But
                                                                admits it cannot "correlate the [infringing] IP
    the typical case does not involve pornography,5
                                                                address to its subscriber and identify Defendant as
    nor is this even run-of-the-mill porn. By                   the person assigned the IP address." Br. at 6
    extension, two factors limit today's holding. First         (internal quotation marks omitted) (quoting Strike
    is this content's aberrantly salacious nature.              3 Holdings v. Doe, No. 17-1680, 2017 WL
    Second is the legion pitfalls associated with Strike        5001474, at *4 (D. Conn. Nov. 1, 2017)). And so
    3's tracking and identification of infringers. Given        Strike 3 "cannot name and serve those whom they
    these high stakes—unlikely to appear in more                allege to have infringed upon their copyrights." Br.
    typical cases—the Court will not accept the risk of         at 6 (internal quotation marks omitted) (quoting
    misidentification. Maybe someday someone will               Call of the Wild Movie, LLC, 770 F. Supp. 2d at
    show the Court a method to identify infringers              352-53).
    with sufficiently less risk of false accusations. But
    because Strike 3 fails to do so here, it cannot             Strike 3's lone rebuttal points out that "courts have
                                                                rejected the dismissal of suits against unnamed
                                                                defendants . . . until the plaintiff has had some
               Case 3:19-cv-00723-JCS Document 19-1 Filed 05/28/19 Page 13 of 19

    opportunity for discovery to learn [the                    The Court denies Strike 3's ex parte motion [3] for
    defendants'] identities." Br. at 6 (alterations in         discovery prior to the Rule 26(f) conference. Since
    original) (internal quotation marks omitted)               this makes serving the defendant impossible, the
    (quoting Davis v. Kelly, 160 F.3d 917, 921 (2d Cir.        Court denies as moot Strike 3's motion [4]
    1998)); see also Br. at 6 (quoting Malibu Media,           extending time to effectuate service and dismisses
    LLC v. Doe, No. 15-986, 2015 WL 5173890 at *1              the case without prejudice. An accompanying
    (D.D.C. Sept. 2, 2015)). But as this opinion has           order will issue. Date: November 16, 2018
    already explained, this case is exceptional, limited
                                                               /s/_________
    as Part I describes. Because Strike 3 chases a
    dead-end, the Court will deny as moot Strike 3's
    motion to extend the service deadline and dismiss          Royce C. Lamberth
    the case.

9   *9 III.   Conclusion                                       United States District Judge
    Armed with hundreds of cut-and-pasted
    complaints and boilerplate discovery motions,
    Strike 3 floods this courthouse (and others around
    the country) with lawsuits smacking of extortion.
    It treats this Court not as a citadel of justice, but as
    an ATM. Its feigned desire for legal process masks
    what it really seeks: for the Court to oversee a
    high-tech shakedown. This Court declines.
Case 3:19-cv-00723-JCS Document 19-1 Filed 05/28/19 Page 14 of 19




                      EXHIBIT C
              Case 3:19-cv-00723-JCS Document 19-1 Filed 05/28/19 Page 15 of 19



                                              Case No.: 18cv1355-JLS(KSC)
                           UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


                                     Strike 3 Holdings, LLC v. Doe
                                                    Decided Mar 21, 2019



    Hon. Karen S. Crawford United States Magistrate               authorization." [Doc. No. 1, at p. 6.] According to
    Judge                                                         the Complaint, defendant's "infringement is
                                                                  continuous and ongoing" and the lawsuit is the
    ORDER DENYING WITHOUT                                         only way to effectively prevent defendant from
    PREJUDICE    PLAINTIFF'S EX                                   infringing the copyrights. [Doc. No. 1, at p. 6.]
    PARTE APPLICATION FOR LEAVE
                                                                  The Complaint explains that "BitTorrent is a
    TO SERVE A THIRD PARTY
                                                                  system designed to quickly distribute large files
    SUBPOENA PRIOR TO A RULE
                                                                  over the Internet. Instead of downloading a file,
    26(f) CONFERENCE                                              such as a movie, from a single source, BitTorrent
    [Doc. No. 4]                                                  users are able to connect to the computers of other
    Before the Court is plaintiff's Ex Parte                      BitTorrent users in order to simultaneously
    Application for Leave to Serve a Third Party                  download and upload pieces of the film from and
    Subpoena Prior to a Rule 26(f) Conference. [Doc.              to other users." [Doc. No. 1, at p. 4.] "To use
    No. 4.] No opposition or reply briefs have been               BitTorrent to download a movie, the user has to
    filed or considered by the Court, because                     obtain a 'torrent' file for that movie, from a torrent
    defendant has not been fully identified and has not           website. The torrent file contains instructions for
    been served with a summons or the Complaint.                  identifying the Internet addresses of other
    Thus far, defendant has only been identified as the           BitTorrent users who have the movie, and for
    "subscriber assigned IP address 3067358909."                downloading the movie from those users. Once a
    [Doc. No. 1.] For the reasons discussed below, the            user downloads all of the pieces of that movie
    Court finds that plaintiff's Ex Parte Application             from the other BitTorrent users, the movie is
    must be DENIED without prejudice. / / / / / /                 automatically reassembled into its original form,
                                                                  ready for playing." [Doc. No. 1, at p. 4.]
2   *2 Background
    Plaintiff filed a Complaint against defendant
                                                                  Discussion
    alleging a single cause of action for direct                  In the Ex Parte Application, plaintiff seeks leave
    copyright infringement. [Doc. No. 1, at pp. 6-8].             to serve limited, immediate discovery on
    In the Complaint, plaintiff asserts ownership of              defendant's Internet Service Provider ("ISP"),
    copyrights for adult motion pictures that are                 AT&T Inc. and/or AT&T U-verse, so that plaintiff
    distributed through adult websites and DVDs.                  may learn defendant's identity. [Doc. No. 4-1, at
    [Doc. No. 1, at pp. 1-2, 6.] The Complaint alleges            pp. 6-7]. Specifically, plaintiff seeks an order
    that the defendant is using BitTorrent protocol to            permitting it to serve a Rule 45 subpoena on
    download and distribute plaintiff's motion pictures           AT&T Inc. (AT&T U-verse) to obtain the name
    to others "on a grand scale." [Doc. No. 1, at p. 2.]          and address of the account holder assigned to
    The Complaint further alleges that defendant                  Internet Protocol ("IP") address 3067358909.
    "downloaded, copied, and distributed a complete               [Doc. No. 4-1, at pp. 6-7.]
    copy" of plaintiff's copyrighted movies "without
              Case 3:19-cv-00723-JCS Document 19-1 Filed 05/28/19 Page 16 of 19

3   *3 Generally,discovery is not permitted without a            "Lastly, the plaintiff should file a request for
    court order before the parties have conferred                discovery with the Court, along with a statement
    pursuant to Federal Rule of Civil Procedure 26(f).           of reasons justifying the specific discovery
    Fed. R. Civ. P. 26(d)(1). In the Ninth Circuit,              requested as well as identification of a limited
    exceptions to requests for early discovery have              number of persons or entities on whom discovery
    generally been disfavored. Gillespie v. Civiletti,       4   process might be served and *4 for which there is
    629 F.2d 637, 642 (9th Cir. 1980). However,                  a reasonable likelihood that the discovery process
    "situations arise, such as the present, where the            will lead to identifying information about
    identity of alleged defendants will not be known             defendant that would make service of process
    prior to the filing of a complaint. In such                  possible." Id.
    circumstances, the plaintiff should be given an
                                                                 A. Identification of the Defendant with Sufficient
    opportunity through discovery to identify the
                                                                 Specificity .
    unknown defendants, unless it is clear that
    discovery would not uncover the identities, or that          In support of the Ex Parte Application, plaintiff
    the complaint would be dismissed on other                    submitted three relevant declarations. First, a
    grounds." Id.                                                Declaration by Tobias Fieser states that he is
                                                                 employed by IPP International UG (IPP), which
    "[S]ome limiting principals should apply to the
                                                                 provides forensic investigation services to
    determination of whether discovery to uncover the
                                                                 copyright owners by tracking, monitoring, and
    identity of a defendant is warranted." Columbia
                                                                 detecting copyright infringement over the internet.
    Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578
                                                                 [Doc. No. 4-2, at p. 11.] According to Mr. Fieser,
    (N.D. Cal. 1999). Such early discovery should be
                                                                 IPP monitors the BitTorrent file distribution
    limited "to ensure that this unusual procedure will
                                                                 network for the presence of plaintiff's copyrighted
    only be employed in cases where the plaintiff has
                                                                 works. [Doc. No. 4-2, at p. 11.] Based on his
    in good faith exhausted traditional avenues for
                                                                 review of forensic activity records and other
    identifying a civil defendant pre-service" and to
                                                                 forensic evidence, Mr. Fieser states that he was
    "prevent use of this method to harass or
                                                                 able to determine that IP address 3067358909
    intimidate." Id. "First, the plaintiff should identify
                                                                 was used to distribute "multiple pieces" of
    the missing party with sufficient specificity such
                                                                 plaintiff's copyrighted movies. [Doc. No. 4-2, at p.
    that the Court can determine that defendant is a
                                                                 11.] Each of these pieces was recorded in digital
    real person or entity who could be sued in federal
                                                                 files that are identified by a "Crypotographic Hash
    court." Id. Second, the plaintiff "should identify all
                                                                 Value." [Doc. No. 4-2, at p. 12.] Software was
    previous steps taken to locate the elusive
                                                                 then used to re-assemble and analyze the digital
    defendant" to ensure that the plaintiff has made a
                                                                 files to confirm that the files being distributed by
    good faith effort to identify and serve process on
                                                                 defendant's IP address were pieces of plaintiff's
    the defendant. Id. at 579. Third, the "plaintiff
                                                                 copyrighted movies that were "fully playable."
    should establish to the Court's satisfaction that
                                                                 [Doc. No. 4-2, at p. 12.] According to Mr. Fieser's
    plaintiff's suit against defendant could withstand a
                                                                 Declaration, Exhibit A to the Complaint [Doc. No.
    motion to dismiss." Id. "Thus, plaintiff must make
                                                                 1-2, at pp. 1-9] lists digital files of plaintiff's
    some showing that an act giving rise to civil
                                                                 copyrighted works that were distributed using the
    liability actually occurred and that the discovery is
                                                                 defendant's IP address. [Doc. No. 4-2, at p. 12.]
    aimed at revealing specific identifying features of
    the person or entity who committed that act." Id. at         Second, a Declaration by Susan B. Stalzer states
    580.                                                         that she is plaintiff's employee and is familiar with
         th
                                                                 plaintiff's copyrighted movies. She was charged
                                                                 with reviewing the digital files enumerated on
                                                                 Exhibit A that were collected by IPP during its
              Case 3:19-cv-00723-JCS Document 19-1 Filed 05/28/19 Page 17 of 19

    forensic investigation to verify that the files did          conduct, and by using 'geolocation technology' to
    indeed contain plaintiff's copyrighted movies.               trace the IP address to a physical point of origin."
    Following this verification process, she used the            See, e.g., Malibu Media, LLC v. Does 1-19, 2012
    American Registry for Internet Numbers (ARIN)                WL 2152061, at 3 (S.D. Cal. June 12, 2012), and
    to confirm that defendant's IP address was owned             cases cited therein. Here, without explanation,
    by AT&T U-verse at the times of the alleged                  plaintiff did not submit a declaration supporting its
    infringements. [Doc. No. 4-2, at pp. 19-20.]                 assertion that geolocation technology was used to
                                                                 ensure that the subscriber of the subject IP address
    Third, a Declaration by Philip Pasquale states that
                                                                 was located in this District during the time of the
    he is a tech advisor for a firm that specializes in
                                                                 alleged infringement.
    network security, data breaches, and the protection
5   of secured information *5 transmitted across                 B. Previous Steps Taken to Identify Defendant .
    networks. [Doc. No. 4-2, at p. 15.] Mr. Pasquale
                                                                 In its Ex Parte Application, defendant has
    was retained by plaintiff "to individually analyze
                                                                 represented that it has consulted with computer
    and retain forensic evidence captured by IPP. . . ."
                                                                 investigators and cyber security consultants and
    [Doc. No. 4-2, at p. 15.] He used a program called
                                                             6   has searched sources available *6 to the public but
    Wireshark to review the contents of the digital
                                                                 is unable to obtain the name and address of the
    files collected by IPP and was able to confirm a
                                                                 subscriber of IP address 3067358909 for the time
    "transaction with 3067358909 at 10/18/2018
                                                                 period in question. [Doc. No. 4-1, at pp. 13-14.]
    04:17:22 UTC" [Doc. No. 4-2, at p. 15.] Based on
                                                                 Through publicly available data, plaintiff is only
    his experience in other cases, Mr. Pasquale also
                                                                 able to connect IP address 3067358909 to
    represents that AT&T U-verse is the "only entity
                                                                 infringing activity on specified dates and identify
    that can correlate the IP address to its subscriber
                                                                 the specific ISP associated with that IP address.
    and identify defendant as the person assigned the
                                                                 [Doc. No. 4-1, at pp. 13-14.] Without a subpoena
    IP address 3067358909 during the time of the
                                                                 to the ISP requesting the name and address of the
    alleged infringement." [Doc. No. 4-2, at pp. 15-
                                                                 subscriber to the IP address in question, plaintiff
    16.]
                                                                 will be unable to identify and serve defendant.
    The Complaint also alleges that geolocation                  [Doc. No. 4-1, at p. 17.]
    technology by Maxmind Inc., "an industry-leading
                                                                 The Court is also aware that the requirements of
    provider of IP address intelligence and online
                                                                 the Cable Privacy Act, 47 U.S.C. § 551, generally
    fraud detection tools," was used to determine that
                                                                 prohibit cable operators from disclosing
    "defendant's IP address traced to a physical
                                                                 personally identifiable information regarding
    address in this District." [Doc. No. 1, at p. 2-3. See
                                                                 subscribers without the prior written or electronic
    also Doc. No. 4-1, at pp. 12-13.] In this regard, the
                                                                 consent of the subscriber. 47 U.S.C. § 551(c)(1). A
    Complaint also states as follows: "In order to
                                                                 cable operator, however, may disclose such
    ensure that defendant's IP address accurately
                                                                 information if the disclosure is made pursuant to a
    traced to the District, plaintiff inputted defendant's
                                                                 court order, and the cable operator provides the
    IP address into Maxmind's GeoIP database twice:
                                                                 subscriber with notice of the order. 47 U.S.C. §
    first when it learned of the infringement and again,
                                                                 551(c)(2)(B). Therefore, the information plaintiff
    just prior to filing this lawsuit." [Doc. No. 1, at p.
                                                                 seeks pursuant to a subpoena falls within an
    3.]
                                                                 exception to the prohibition on disclosure within
    "Some district courts in the Ninth Circuit have              the Act.
    determined that a plaintiff identifies Doe
                                                                 Accordingly, based on the information provided in
    defendants with sufficient specificity by providing
                                                                 the Ex Parte Application and supporting
    the unique IP address assigned to an individual
                                                                 Declarations, the Court finds that plaintiff did
    defendant on the day of the alleged infringing
                                                                 make a good faith effort to identify and serve the
              Case 3:19-cv-00723-JCS Document 19-1 Filed 05/28/19 Page 18 of 19

    defendant but is unable to do so without an Order              resides in the forum state. Brayton Purcell LLP v.
    from the Court allowing service of a subpoena on               Recordon & Recordon, 361 F.Supp.2d 1135, 1138
    the ISP associated with the IP address in question.            (N.D. Cal. 2005). In copyright infringement
                                                                   actions, venue is proper "in the district in which
    C. Ability to Withstand a Motion to Dismiss .
                                                                   the defendant . . . resides or may be found." 28
    Under Federal Rule of Civil Procedure 12(b), a                 U.S.C. § 1400(a).
    case can be dismissed for lack of subject matter
                                                                   Based on the record before the Court, plaintiff has
    jurisdiction or for failure to state a claim upon
                                                                   not satisfied its burden to make a prima facie
    which relief can be granted. Fed.R.Civ.P. 12(b)(1),
                                                                   showing that the Complaint is likely to survive a
    12(b)(6). "Under the Copyright Act of 1976 ('the
                                                                   motion to dismiss for lack of personal jurisdiction
    Act') a plaintiff may not 'institute [ ]' an action in
                                                                   and/or improper venue. First, the Complaint
    federal district court 'until registration of the
                                                                   alleges that geolocation technology was used to
    copyright claim has been made in accordance with
                                                                   trace the offending IP address to a location in this
    this title.' 17 U.S.C. § 411(a)." Berry v. Penguin
                                                                   District. Second, the Complaint alleges that the
    Group (USA), Inc., 448 F.Supp.2d 1202, 1202
                                                                   defendant resides here based on the results of
    (W.D. Wash. 2006). In order to state a viable claim
                                                                   geolocation technology. Third, the Complaint
    for copyright infringement, a plaintiff must allege:
                                                                   asserts that a substantial part of the alleged
    (1) ownership of a valid copyright, and (2) a
                                                                   copyright infringement occurred in this District.
    violation by the defendant of the copyright
                                                                   However, plaintiff did not submit evidence to
7   owner's exclusive rights *7 under the Copyright
                                                                   support these allegations. As a result, this Court
    Act. Ellison v. Robertson, 357 F.3d 1072, 1076
                                                                   cannot conclude plaintiff met its burden of making
    (9th Cir. 2004); 17 U.S.C. § 501(a).
                                                                   a prima facie showing that the Complaint would
    As applied herein, the Complaint adequately                8   be able to survive a motion to *8 dismiss for lack
    alleges subject matter jurisdiction pursuant to Title          of personal jurisdiction and/or improper venue.
    28, United Code, Sections 1331 (federal question)              Without supporting evidence indicating the
    and 1338 (copyrights). The Complaint further                   offending IP address was located within this
    alleges that plaintiff is either the registered owner          District during the relevant time period, the Court
    or has pending registration applications for the               finds that it would not be appropriate to permit
    adult motion pictures that defendant's IP address              plaintiff to serve AT&T Inc and/or AT&T U-verse
    copied and distributed using the BitTorrent file               with a Rule 45 subpoena.
    distribution     network        without      plaintiff's
    authorization. [Doc. No. herreraryan@example.net. 1, 6]. Thus, it is
                                                                   CONCLUSION
    apparent that plaintiff's Complaint could withstand            For the reasons set forth above, plaintiff's Ex Parte
    a motion to dismiss for failure to state a claim.              Application for Leave to Serve a Third Party
                                                                   Subpoena is DENIED without prejudice. [Doc.
    Under Federal Rule of Civil Procedure 12(b), a                 No. 4.] No later than ten (10) days from the date
    complaint can also be dismissed for lack of                    this Order is entered, plaintiff may file competent
    personal jurisdiction over a defendant or for                  evidence based on personal knowledge that a
    improper venue. Fed.R.Civ.P. 12(b)(2)&(3). To                  reliable geolocation service was used to determine
    overcome a defendant's motion to dismiss under                 that the subject IP address was located within the
    Federal Rule 12(b)(2) for lack of personal                     Southern District of California during the relevant
    jurisdiction, a plaintiff need only make a prima               time period.
    facie showing of jurisdiction by presenting facts
    that, if true, would support a finding of personal             IT IS SO ORDERED. Dated: March 21, 2019
    jurisdiction over the defendant. Ballard v. Savage,
                                                                   /s/_________
    65 F.3d 1495, 1498 (9 Cir. 1995). Personal
    jurisdiction can be established over a person who
        Case 3:19-cv-00723-JCS Document 19-1 Filed 05/28/19 Page 19 of 19


Hon. Karen S. Crawford                     United States Magistrate Judge

{'dataset': 'courtlistener_docket_entry_documents'}