Strike 3 Holdings, LLC v. Doe subscriber (D. Mass. 22-cv-12146).

Strike 3 Holdings, owner of adult films, accused an as-yet unknown John Doe having a particular IP address, of using BitTorrent to downloading and distributing 46 of Strike 3’s films without consent.  With the court’s approval, Strike 3 served a third-party subpoena on internet service provider RCN to obtain the name and address of the subscriber of the IP address.  The subscriber was given 30 days to object, and was allowed to proceed under the pseudonym “John Doe” for the time being. With the subscriber’s identity withheld from Strike 3 pending a determination of any objection.

The subscriber filed an objection pro se, asserting that the subscriber is an 81-year-old woman who both would not know how to download and distribute movies and who spent a considerable amount of the time in which the alleged copyright infringement occurred in hospitals, rehabilitation centers and staying with relatives to help with her care.

Magistrate Judge Dein recommended denial of the subscriber’s motion to quash the subpoena and dismiss the case, noting that there was no argument that the complaint failed to state a case of copyright infringement and that a general factual denial of liability cannot, as a matter of law, serve as grounds for quashing the subpoena.  While the subscriber objected on the grounds that compliance would impose undue burden, no specific burden was identified.  Further, the internet service provider who would actually be the entity responding to the subpoena, RCN, had not itself objected or raised any issue with the burden of responding.  Indeed, Judge Dein noted that other courts have held that John Doe’s in similar circumstances lack standing to object to a third party on undue burden bases.

Judge Dein noted that the pro se objection, interpreted liberally (as pro se pleadings are generally read) could be understood as seeking to protect a personal privilege or right (which might give them grounds to object to a third party subpoena).  The court’s allowance for the subscriber to proceed anonymously, however, sufficiently protected any privacy interests that might otherwise be implicated.  Accordingly, she ordered RCN to respond to the subpoena.