United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION FOR LEAVE TO SERVE A
THIRD PARTY SUBPOENA PRIOR TO RULE 26(F) CONFERENCE [DOC.
CHARLES S. HAIGHT, JR., SENIOR UNITED STATES DISTRICT JUDGE
Strike 3 Holdings, LLC ("Strike 3") brings this
copyright infringement action as the owner of original adult
motion pictures that are featured on its subscription-based
websites. See Doc. 7-2 (Declaration of Greg Lansky),
¶ 3. Through its hired investigator, IPP
International U.G. ("IPP"), Strike 3 has learned
that Defendant Doe's Internet Protocol ("IP")
address (126.96.36.199) was used to illegally distribute
several of Strike 3's motion pictures. Doc. 7-1, at
5, Doc. 7-3 (Fieser Decl.), ¶ 7; Doc. 7-4 (Pasquale
Decl.), ¶¶ 7-9. See also Doc. 1, Ex. A.
(List of 25 "Total Works Infringed" by IP Address:
employs forensic software to identity IP addresses that
infringers use to distribute Strike 3's copyrighted
movies within the BitTorrent File Distribution
Network. Doc. 7-3 (Fieser Decl.), ¶¶
7, 11. According to Plaintiff, IPP's investigations have
revealed that Defendant used the BitTorrent protocol to
illegally distribute multiple pieces of Strike 3's
copyrighted movies listed in Exhibit A to Plaintiff's
Complaint. Id., ¶ 7. Each piece of the various
movies was recorded in a "packet capture"
("PCAP"), a "forensically sound interface for
recording network traffic," which records the time in
logs kept by United States Internet Service Providers
("ISPs"), which track the IP Address of internet
customers at a given time. Id., ¶ 8. IPP's
software confirmed that the BitTorrent pieces distributed by
Doe's IP Address were reassembled into "a fully
playable digital movie." Id., ¶ 9.
According to IPP's investigation, the alleged
infringement at issue was "consistent and
on-going." Id., ¶ 8. IPP also confirmed
through its ancillary worldwide BitTorrent surveillance
program that Doe's IP Address is associated with
"significant long term BitTorrent use."
Id., ¶ 12.
3 asserts that the only means it has to identify this
persistent infringer is through his assigned IP address.
Strike 3 has thus filed the pending motion for leave to serve
a third party subpoena on Comcast Cable Communications, LLC
("Comcast Cable"), Defendant's ISP, pursuant to
Rules 26(d)(1) and 45, Fed.R.Civ.P. See Doc. 7, at
1, Doc. 7-1, at 6. By obtaining the name and address of the
Defendant, Plaintiff will be able to properly identify and
serve him, and thereby prosecute Plaintiff's copyright
general, parties "may not initiate discovery prior to
satisfying the meet and confer requirement of Fed.R.Civ.P.
26(f)." Digital Sin, Inc. v. Does 1-176, 279
F.R.D. 239, 241 (S.D.N.Y. 2012). Specifically, under Rule
26(d)(1), Fed. R. Civ. P., "[a] party may not seek
discovery from any source before the parties have conferred
as required by Rule 26(f)," except in limited
proceedings delineated in Rule 26(a)(1)(B), or "when
authorized by these rules, by stipulation, or by court
order." "[C]ourts may in some instances order
earlier discovery." Digital Sin, 279 F.R.D. at
241 (citing Fed.R.Civ.P. 26(d)). See, e.g.,
Strike 3 Holdings, LLC v. Doe, No. 3: 17-CV-1680
(CSH), 2017 WL 5001474, at *2 (D. Conn. Nov. 1, 2017)
("[A] party may engage in discovery before such a
[26(f)] conference pursuant to a court order.") (quoting
Malibu Media, LLC v. John Doe Subscriber
Assigned IP Address 188.8.131.52, No. 1:16-CV-02462
(AJN), 2016 WL 2894919, at *2 (S.D.N.Y. May 16, 2016))
(citing Fed.R.Civ.P. 26(d)(1)).
considering whether to grant a motion for expedited discovery
prior to a Rule 26(f) conference, courts apply a
"flexible standard of reasonableness and good
cause." Malibu Media, LLC, 2016 WL 2894919, at
*2 (gathering cases). See also Arista Records LLC v. Does
1-4, 589 F.Supp.2d 151, 152-53 (D. Conn. 2008) (applying
"good cause" standard to request for expedited
discovery) (citation omitted). See generally 8A
Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2046.1 (3d ed. 2011)
("Although [Rule 26(d)] does not say so, it is implicit
that some showing of good cause should be made to justify
such an order, and courts presented with requests for
immediate discovery have frequently treated the question
whether to authorize early discovery as governed by a good
Second Circuit, in evaluating subpoenas seeking identifying
information from ISPs regarding subscribers who are parties
to copyright infringement litigation, courts have examined
the following factors:
(1) [the] concrete[ness of the plaintiff's] showing of a
prima facie claim of actionable harm, . . . (2) [the]
specificity of the discovery request, . . . (3) the absence
of alternative means to obtain the subpoenaed information, .
. . (4) [the] need for the subpoenaed information to advance
the claim, . . . and (5) the [objecting] party's
expectation of privacy.
Arista Records, LLC v. Doe 3, 604 F.3d 110, 119 (2d
Cir. 2010) (quoting Sony Music Entm't, Inc. v. Does
1-40, 326 F.Supp.2d 556, 564-65 (S.D.N.Y. 2004)). If
"[a]pplication of these 'principal factors'
confirms that the Plaintiff is entitled" to the
requested subpoena, the motion for early discovery will be
granted for "good cause." Malibu Media,
LLC, 2016 WL 2894919, at *2.
the principal factors in detail, the plaintiff must first
state a prima facie claim for copyright infringement.
See, e.g., Sony Music Entm't Inc., 326 F.Supp.2d
at 565. Specifically, the plaintiff must show: "(1)
ownership of a valid copyright, and (2) copying of
constituent elements of the work that are original."
Feist Publ'ns, Inc. v. Rural Tel. Serv. Co.,
Inc., 499 U.S. 340, 361 (1991). See also Urbont v.
Sony Music Entm't, 831 F.3d 80, 88 (2d Cir. 2016)
3 has alleged that it is the owner of the multiple works at
issue, "which have either been registered with the
United States Copyright Office or have pending copyright
registrations." Doc. 1 ("Complaint"), ¶
31. The registration numbers and copyright application
numbers for all works appear on Exhibit A to the Complaint,
which lists the 25 "Total Works Infringed." Doc.
1-1, at 1-2. See also 17 U.S.C. § 410(c)
("In any judicial proceedings the certificate of a
registration made before or within five years after first
publication of the work shall constitute prima facie evidence
of the validity of the copyright and of the facts stated in
§ 411(a) of the Copyright Act, "no civil action for
infringement of the copyright in any United States work shall
be instituted until preregistration or registration of the
copyright claim has been made in accordance with this
title." 17 U.S.C. § 411(a). With respect to this
provision, Plaintiff is advised that filing an application
alone may or may not be sufficient to show ownership of a
valid copyright for purposes of litigating a civil copyright
Second Circuit noted:
[T]he Federal Courts of Appeals are divided over whether a
pending application satisfies § 411(a)'s requirement
of copyright registration as a precondition to instituting an
infringement action. Compare Apple Barrel Prods., Inc. v.
Beard, 730 F.2d 384, 386-87 (5th Cir.1984) (Copyright
Office's receipt of application suffices), with
M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486,
1488-89 (11th Cir. 1990) (approving district court's
decision to allow suit to proceed only after plaintiff
received Copyright Office's response to registration
application and amended the complaint), Gaiman v.
McFarlane, 360 F.3d 644, 655 (7th Cir.2004) ("[A]n
application to register must be filed, and either granted or
refused, before suit can be brought"), and La
Resolana Architects, PA v. Clay Realtors Angel Fire, 416
F.3d 1195, 1202-05 (10th Cir.2005) (comparing the Fifth
Circuit's "application approach" with the
Eleventh Circuit's "registration approach" and
adopting the latter) abrogated on other grounds by Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154, 130 S.Ct.
1237, 176 L.Ed.2d 18 (2010)."
Psihoyos v. John Wiley & Sons, Inc., 748 F.3d
120, 125 (2d Cir. 2014). In Psihoyos, the Second
Circuit found it "need not resolve the dispute [among
the circuits] or otherwise embroil [itself] in this circuit
split because, even assuming arguendo that a pending
application constitutes a 'registration' under §
411(a), Psihoyos had not even filed the applications for
registration of the relevant works prior to instituting the
action claiming infringement of the copyright in these works,
as required by the plain terms of the statute."
Id. (citing 17 U.S.C. § 411(a)). See also A
Star Grp., Inc. v. Manitoba Hydro, 621
Fed.Appx. 681, 683 (2d Cir. 2015) ("Our Court has not
yet determined . . . whether a merely pending application for
registration satisfies the Act's requirement that a work
be registered before a related infringement suit is
filed.") (citing 17 U.S.C. § 411(a)). The
questionthus remains undecided. 
however, Strike 3's complaint includes a number of works
for which the Copyright Office has approved registration, the
Court will continue to consider its motion for leave to serve
a third party subpoena. In so doing, the Court expresses no
opinion as to whether Strike 3 has also presented a valid
copyright infringement claim with respect to the works for