SAN DIEGO – A U.S. Magistrate has denied an adult film company's application to serve a third-party subpoena in a copyright infringement case.
Filed in the U.S. District Court of the Southern District of California, Magistrate Judge Karen Crawford ruled March 21 that Strike 3 Holdings’ ex parte application must be denied without prejudice.
The plaintiff in the case is Strike 3 Holdings and the defendant is listed as John Doe subscriber assigned IP address 99.26.127.96. Strike 3 Holdings’ suit was filed in order to obtain a third party subpoena prior to a Rule 26F conference.
Crawford wrote the following in her denial of Strike 3 Holdings’ claim.
"Based on the record before the court, plaintiff has not satisfied its burden to make a prima facie showing that the complaint is likely to survive a motion to dismiss for lack of personal jurisdiction and/or improper venue," Crawford wrote.
She gave three reasons for denying Strike 3 Holdings’ complaint.
"First, the complaint alleges that geolocation technology was used to trace the IP address to a location in this district. Second, the complaint alleges that the defendant resides here based on the results of geolocation technology. Third, the complaint asserts that a substantial part of the alleged copyright infringement occurred in this district.
"However, plaintiff did not submit evidence to support these allegations. As a result, this court cannot conclude the plaintiff met its burden of making a prima facie showing that the complaint would be able to survive a motion to dismiss for lack of personal jurisdiction and or improper venue. Without supporting evidence indicating the offending IP address was located in this District during the relevant time period, the court finds that it would not be appropriate to permit plaintiff to serve AT&T and or AT&T UVerse with a Rule 45 subpoena,'' Crawford wrote.
The plaintiff alleged that the defendant used BitTorrent to download and distribute its copyrighted motion pictures to others "on a grand scale," according to the ruling.
"Instead of downloading a file, such as a movie from a single source, BitTorrent users connect to computers of other BitTorrent users to simultaneously download and upload pieces of the film from and to other users," the complaint states.
In its ex parte application, the plaintiff needed an order to access the identity and address of the user from the ISP.
The plaintiff submitted three declarations on its application. In addition, the plaintiff used the geolocation technology of Maxmind Inc. to see if it could trace the defendant’s IP address to an actual physical address. They used the technology twice: once when it discovered the infringement and second when the suit was filed. The complaint also stipulated that Strike 3 Holdings consulted with investigators and cyber security consultants.
Crawford wrote that the plaintiffs made a good faith effort to identify and serve the defendant but was unable to do some without an order of the court.
Strike 3 Holdings LLC is a company that distributes adult films through the subscription-based websites Blacked, Vixen and Tushy.