As it happened in many other Malibu cases, no direct evidence of infringement — either admission of wrongdoing or traces of plaintiff’s smut — was found here. Alleged Bittorent transactions recorded by foreign players are not enough: this type of indirect “evidence” is unlikely to fly in US courts. This is the point where a reasonable party offers at least a walk-away to the defendant.
Yet we deal with Keith Lipscomb’s enormous hubris here. Instead of letting a defendant go, he usually unties his magic bag of tricks and pulls out some painfully familiar tactics: delays, incoherent depositions aimed at catching the defendant in some sort of a discovery violation or perjury, delays, threatening to depose neighbors, accusations of spoliation of evidence, hunt for ephemeral computers and hard drives that were allegedly hidden from the plaintiff, delays, fishing trips to ISPs, and so on…
No surprise that many items from this list found their way to this case. At least one trick failed though: on 10/14 the troll attempted to extend discovery deadline to depose Comcast and to compel the defendant to produce allegedly undisclosed computer. Judge James Cohn disagreed:
Plaintiff’s Second Motion for Extension of Time Within Which to Complete Discovery and Motion to Compel Production of Newly Disclosed Computer. Plaintiff has not shown good cause for the requested extension. The attached discovery materials indicate that Defendant objected to the breadth of Plaintiff’s discovery requests and the record shows that Plaintiff did not move to compel. Plaintiff has not shown that Defendant lied about the existence of the “newly disclosed computer” referenced in the motion. Further, Plaintiff’s inability to depose Comcast’s corporate representative during the nearly seven months allowed for discovery does not constitute good cause for an extension.
Fed up with this circus aimed solely at delaying the proceedings in this unwinnable lawsuit — in a hope that the defendant would give up and pay, attorney Conlin decided that it was the right time to ask the judge for a summary judgement:
- Plaintiff’s subpoena on Comcast
- Comcast response to Plaintiff
- Defendant’s First Request for Admissions on Plaintiff
- Declaration of Robert Dare
- OpenPeaks Response to Plaintiff’s Subpoena
- Plaintiff’s Response to Defendant’s Request for Production of Documents
- Expert Report Tom Parker
- Plaintiff’s Response to Defendant’s 1st Set of Interrogatories
- Statement of Facts
The expert report
Exhibit 7 is of a particular interest: the defendant hired his own expert, Tom Parker, to get an opinion on the quality of the German evidence and on the merits of Patrick Paige’s report. And that opinion turned out pretty damning.
The defendant’s expert’s report was served on the plaintiff on 9/11, and the vermin nest was seriously disturbed. On 9/17, one day prior to the discovery cut-off, Malibu (via Daniel Shatz) filed a hysterical motion to either exclude the defendant’s expert witness or to extend the expert discovery deadline by 90 days. While the defendant’s disclosure of his expert only one week prior to deadline admittedly didn’t give the troll a lot of time to react, I don’t see how a week in advance was an “eleven-hour disclosure.” Anyway, the troll clearly wanted either to add yet another (substantial) delay or, ideally, to get rid of the inconvenient report whatsoever. (Fast forward, the judge did give the troll more time, but less than a month, and he didn’t exclude the defense’s expert witness.)
So, why did this report rile Lipscomb & Co so much? Well, in addition to some common sense opinions, such as “IP address doesn’t identify the infringer,” the defendant’s expert found some serious inconsistences in the evidence supplied by the plaintiff.
First, the plaintiff’s “evidence” absolutely doesn’t prove that anything beyond a less-than-a-second movie piece was shared by the defendant (thus, the second necessary element of an infringement — copying of a substantial portion of a work — simply doesn’t exist)¹:
I examined the PCAPs provided by Plaintiff and compared them with the video files provided by Plaintiff. When I looked at them, for example, the PCAP file for file hash No. 91 D22A6F66495928D68FE6EFE63FC676FD6AC763_1606 (file name 126.96.36.199_91 D22A6F66495928D68FE6EFE63FC676FD6AC763_1606.pcap), determined that the size of the allegedly downloaded bits recorded in that PCAP amounted to only 67KB, which is substantially smaller than the size of the full video, which was 441.2MB. The size of the video for that file is about 6500 times larger, than the size of the PCAP (file name “X-Art- Hot Orgasm- Scarlet [1080p].mp4” which was compressed with a file name 91 D22A6F66495928D68FE6EFE63FC676FD6AC763. tar).
If the entire video file had been downloaded and captured, the size of the PCAP would have been at least slightly larger than the video file because it would contain the same data.
Yet the most incriminatory is the suggestion that the German PCAP artists doctored their evidence:
The data in the PCAPs presented appears “filtered.” In other words, the data does not appear to be complete. For example, the PCAPs completely lack any UDP (User Datagram Protocol) data. The BitTorrent client that was allegedly used by the downloader is Transmission, version 2.42. Transmission began implementing UDP support in version 2.3. Transmission 2.42 definitely has UDP available; therefore, it should have shown up in the PCAP. The complete absence of UDP traffic in the PCAP log leads me to believe that some of the evidence has been deleted or removed.
The fact that the data was filtered makes it appear that Plaintiff may be hiding something. If Plaintiff had supplied complete data, I would have been able to determine whether, for example, Plaintiff’s investigator had “seeded” the files. Therefore, the lack of data makes it inconclusive, yet possible, that Plaintiff seeded the files. It also makes the integrity of the files questionable.
Other inconsistences stressed by Tom Parker were:
I examined the “reports” Plaintiff served along with the PCAP files. The reports says they were created by Patrick Paige. I noticed differences between the reports and the data in the PCAPs. The report for file hash, 91 D22A6F66495928D68FE6EFE63FC676FD6AC763, for example, contains only 61 entries, whereas the PCAP contains 181 entries. Likewise, the other reports also failed to completely match the corresponding PCAP. Therefore, the reports are incomplete.
Along with the PCAPs, I examined the “MySQL” PDF attached as Exhibit “A” to Michael Patzer’s declaration (Page 4 at ¶ 21 ). However, it too appears to be incomplete, as well as misleading. The MySQL report contains time stamps that do not exist in the PCAP. For example, for file hash number 91 D22A6F66495928D68FE6EFE63FC676FD6AC763, the MySQL includes only six time stamps […]; only one of these matches to an entry in the corresponding PCAP […]
Alright, I’m not going to copy and paste the entire report: it discusses more problems with the plaintiff’s cockamamie evidence.
Even if only some of the accusations turn out to be true (and to my view, the inconsistences presented are hard to explain away), this report will leave a scar on the shakedown beast’s body. I predict that Lipscomb will scramble all his fallacious sophistry to discredit both the report and the report’s author. Will he succeed in it? I don’t’ know: in the short run — maybe, but eventually the house of cards built from bogus evidence and predatory litigation tactics will collapse.
The rebuttal deadline is October 28. I’m eager to see Malibu’s argument and definitely will post an update.
¹ Not that it is something new: a year ago the defendant in Elf-Man v Lamberson won $100K in attorney fees largely because he proved that German evidence is grossly insufficient.