Guardaley | X-Art

Judge rules that German investigators’ evidence is insufficient to prove direct infringement

To sum up: it is wrong always, everywhere, and for anyone, to believe anything upon insufficient evidence.

William Kingdon Clifford

In myriads of Bittorent cases across the country, copyright trolls tout a couple of Bittorent transactions registered by an unlicensed German investigator Guardaley/IPP International/Excipio as a “smoking gun” kind of a proof, but Colorado Magistrate Michael E. Hegarty doesn’t think it is enough to establish liability.

A month ago Judge Hegarty recommended granting in part and denying in part plaintiff’s motion for summary judgment in Malibu Media v. Justin Winkler, COD 13-cv-03358, where the judge suggested that Malibu needed more evidence.

In my opinion, this recommendation is significant for defense attorneys and pro se defendants not only in Malibu cases, but in all the other Bittorent lawsuits, especially in numerous instances, where forensic examination of defendants’ hard drives yielded no traces of XArt’s smut. Because

Although Plaintiff appears to argue that it has demonstrated direct proof that Defendant copied its films, it is unclear whether the evidence demonstrates that the entirety of each film was copied onto Defendant’s computer. That is, Mr. Patzer (who designed, implemented, maintained and monitored the data collection system used to identify IP addresses that have allegedly committed infringement via the BitTorrent protocol) attests that


27. Only 1 PCAP per movie infringed is produced to the Plaintiff usually. 1 PCAP per movie is sufficient to prove without question that the infringement of each of the movies at issue occurred. Producing all PCAPs for each of the infringed movies would be superfluous and extremely time consuming.

Accordingly, the PCAPs at issue here contain “pieces” of the Plaintiff’s movies. Mr. Patzer does not explain why one PCAP is “sufficient to prove” Defendant copied the entire film and why producing all PCAPs would be superfluous.

In other words, to establish no genuine issue of material fact (the essence of summary judgment), Malibu needs more evidence. So, Judge Hegarty examined if there is an indirect proof of infringement:

Accordingly, the Court looks to whether Plaintiff can prove copying indirectly “by establishing that [Defendant] had access to the copyrighted work and that there are probative similarities between the copyrighted material and the allegedly copied material.”

In this particular case, the plaintiff’s expert Partick Paige examined the defendant’s hard drive and found traces of 28 of the 39 films listed in the complaint. The judge agreed that in respect to these 28 flicks, the proof of liability, albeit indirect, is strong enough, and if only those 28 were at issue, the motion for summary judgment would be certainly granted, and there would be no need to proceed to a jury trial.

However, with respect to the remaining 11 titles, there is no even indirect proof of infringement, so the judge felt he didn’t have the right to usurp a jury’s prerogative of decision.

Some attorneys already recognized the importance of this development: on 7/23/2015, Jonathan Phillips noticed this recommendation in an eventful ILND 13-cv-06312 case.

Guardaley and Keith Lipscomb (via their local Jason Kotzker), were shaking down Colorado residents rather seamlessly for years, in part because Judge Hegarty (who was de facto the only judge handling Bittorent lawsuits in Colorado) kept rubberstamping Malibu’s ex parte discovery motions and was generally pro-plaintiff. Thus, this kind of judge’s finding that Guardaley/IPP’s recorded transactions are simply not enough to proof infringement is especially noteworthy.


Neither plaintiff nor defendant objected, so on 7/14/2015, Judge Wiley Y. Daniel adopted the recommendation of the magistrate.

Thanks to Raul for the heads up.

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12 responses to ‘Judge rules that German investigators’ evidence is insufficient to prove direct infringement

  1. You mean a single 1 second snippet doesn’t prove the whole movie was downloaded? Color me shocked.

    To follow up on one portion…
    “found traces of 28 of the 39 films listed in the complaint”
    What kind of traces were found, do we know? I am skeptical of these sorts of statements.
    There is a setting that preallocates disk space to files being transferred, which could result in remnants of empty placeholder files being left behind. They are by no means copies, and are created if a .torrent link or a magnet link is clicked and the file data is propagated. One could click on a link without a good description and these empty files could be created without any user intervention. One could then look at the list of downloads and say oh crap I didn’t want that and end the transfer before it completes (or after).
    I view it like I view media reports that “the authorities found bomb making supplies” because looking at all of the possibilities many common household items can be used to make bombs, but the target might not have been making bombs just having the common items that could be assembled into a bomb.

  2. Reblogged this on TorrentLawyer™ – Exposing Copyright Trolls and Their Lawsuits and commented:
    This is too important of a case not to mention, but I simply have not had the time to write it up (nor do I think that I could have done a better job than what was written up here). Read this article and understand that with a fight, Malibu Media LLC cases can and do crumble.

    The most fascinating part about this Colorado federal court ruling is that it came from US Magistrate Judge Michael Hegarty (who has been a thorn in the side of us defense attorneys because his rulings have until now been consistently pro-copyright troll). This is a fascinating revelation which will perhaps smother the Malibu Media, LLC v. Doe cases filed across the U.S.

  3. SJD:
    Here’s further evidence that IP addresses don’t identify individuals when they are Comcast or Cablevision customers:

    Here, comcast and cablevision are handing out routers that they refuse to configure not to be ISP-controlled wireless, for-pay hotspots…that probably use the same IP address as the hapless trolling victim.

    Hopefully, also, our trolling victim here points out that fragments are *not* copies, and, with 2,000 or more movies on that computer, and no copyright notice on downloading, the victim may not have even watched X-Art’s garbage (my opinion — you want good porn, go watch “Fritz the Cat” — it has a story that isn’t only sex).

    I have certainly done things like downloaded a copyrighted science book, glanced through it as I would at a bookstore, and asked the uploader whether they were the author or otherwise authorised — with the result that the uploader’s post with the link was removed.

    (fine to delete this “grammar nazi” note)
    You have been writing quickly, it seems, and the typo monster has bit you twice!:

    First, title of the next post refers to “teaches the toll a lesson” (what happened to the troll??)
    Second, the summary of this post refers to “Judge Michael E. Herarty” (you clearly meant Hegarty)

    • True, I’m actually a bit puzzled that the defense camp doesn’t use this argument more aggressively. Copyright infringement is a two-headed beast: a valid registration and a proved copying. While the former is usually not an issue (and courts have been ridiculously lenient to plaintiffs’ sloppiness in registration), the latter is the elephant in the room. Remember that Lamberson won his case just because of that: the troll couldn’t prove copying beyond an eyeblink-long piece. In this case and elsewhere, trolls stated on the record many, many times that all they have is a couple of pieces that doesn’t elevate to “copying” part of the infringement. That’s why this order, while not sensational (I doubt it will be covered beyond attorneys’ blogs) is super significant.


      Thanks for catching the typos, I always appreciate that.

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