March 27, 2020 Top Story

Pleading Standard Heightened for Anonymous Online Activity

IP address alone may not support claim against "John Doe" infringers

By John M. McNichols

A recent federal magistrate decision threatens plaintiffs’ ability to seek redress from persons who anonymously download and share copyrighted content online.

Digital piracy

Digital piracy

iStockphoto by Getty Images

In Strike 3 Holdings, LLC v. Does, the court denied a request for expedited discovery to unmask the identities of “John Doe” defendants through subpoenas to internet service providers (ISPs). According to the court, the plaintiff had to identify the defendants by more than their Internet Protocol (IP) addresses to state an infringement claim. Although not the first court to deny an ex parte request for subscriber-identifying discovery, the court in Strike 3 broke new ground by basing its decision on the deficiency of the underlying claim under the pleading standards of Federal Rule of Civil Procedure 12(b)(6). ABA Section of Litigation leaders expect that, if followed, the ruling will have a profound effect on the viability of other “John Doe” infringement claims in the future.

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