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.
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.