Guardaley | X-Art

Malibu Media expert’s report deserves some scrutiny

Last week I wrote about a motion for summary judgement filed by the defendant (via his attorney Cynthia Conlin) in a closely watched and eventful case Malibu Media v Robert Dare (FLSD 14-cv-61957). This motion was backed by a report produced by the defendant’s own expert, Tom Parker. The report suggested that the German evidence was incomplete and misleading and didn’t back the claim that the defendant downloaded/shared the entire videos. In addition, the expert asserted that anyone in close proximity to the defendant’s house could piggyback on his wi-fi connection to torrent XArt’s pornography.

The plaintiff had up to 10/28 to rebut the report. Instead, Malibu fired its own motion for summary judgement. Among numerous exhibits to this motion, a couple can be counted as a rebuttal attempt. A very interesting transcript of Tom Parker’s deposition deserves a separate analysis, and I’ll get back to it in the coming days. Today’s post is about another document: a very strange “Report on the probability that two Americans live next to each other and both use Bittorent and the Bittorent client Transmission,” prepared by Dr. Dan Sarel who is an associate professor of marketing in the School of Business Administration at the University of Miami.

This report’s aim was to rebut Tom Parker’s suggestion that accessing wi-fi by a neighbor was possible and plausible. Dr. Sarel’s argument was largely based on the fact that the Germans determined that the alleged infringer had used a relatively rare Bittorent client, Transmission — the very same client the defendant admitted to own. The expert argued that such a coincidence is unlikely:

Subject to the assumptions and limitations set forth below, I conclude the probability that two Americans live next to each and both use BitTorrent and the BitTorrent client “Transmission” is 1 out of 37,679.

Dr. Sarel was paid a $2,500 fee for what, in my opinion, is a half-assed argument at best. Read the report and scroll down: I’ll try to explain why I think it is misleading and doesn’t rebut the defendant expert’s report at all.

Buzzwords used incorrectly

Dr. Sarel begins his report with

The method for calculating the probability employed in this report is based on a well-accepted methodology that has been used and admitted into evidence by courts for many years. The method often called the “Multiple Dependent Event Probability Determination Analysis.”

I dare to say the “often called” is a slight overstatement because searching Google for this phrase yields exactly zero results (excluding this post).

Bayes Theorem

Of more concern is conflating “dependent events” and the multiplication formula, which is applicable only to calculating overall probability of an independent event combination. The probability of a dependent event combination should be calculated using the Bayes’ Theorem.

Given that the author is a tenured professor who undoubtedly knows statistics and the probability theory better than yours truly, I assume it was a typo.

Unnecessary paragraph that proves nothing

Paragraph A that estimates the probability of two “heavy pirates” leaving next to each other is, while technically correct (assuming that the input numbers are accurate), proves nothing and borders on making a legal conclusion — by implying that both the defendant and his mysterious wi-fi piggybacker are both “heavy pirates.”

A wrong assumption

The entire report is based on the assumption that the distribution of tech-savvy digital movie owners is uniform across the US, and the the same 14% is a correct estimation everywhere — be it rural Missouri or Silicon Valley (this assumption is not listed in the “assumptions and limitations” section). I don’t know what they teach at the U of Miami School of Business’ marketing program, but a person with a functioning brain immediately sees how wrong this assumption is. For example, the probability of a US household having a yearly income of $380,000 or more is 1%, so, I will calculate the probability of two wealthy people leaving next to each other: it is 0.01 * 0.01 = 0.0001, or 1 in 10,000. Then I will picture you driving along the Malibu coast and [rightfully] calling me an idiot.

A wrong problem

Dr. Sarel is solving a wrong problem here. The question is not what a probability of two Transmission users leaving next to each other is. The defendant admitted that he is a Transmission user, so the probability of him using Transmission is, unsurprisingly, 100%. The expert should have been tasked to determine what the likelihood of another Transmission user living next door is. Even with the [incorrect] numbers Dr. Sarel uses on p. 7, it will be 0.5%, not 0.5%2 . If we roll two dices, the a priori probability of both 6s is 1/6 * 1/6 = 1/36, yet if we already have 6 after the first roll, the probability of the second 6 is 1/6.

More than one neighbor

The problem being solved is also wrong because it only assumes a single neighbor. The correct way to formulate the task is: what is the likelihood that at least one neighbor out of N uses Transmission. The independent events here are “Neighbor X does not use Transmission”:

P(1 neighbor: no Transmission) = 1 – P(1 neighbor uses Transmission)
P(N neighbors: no Transmission) = (1 – P(1 neighbor uses Transmission))N
P(at least 1 neighbor of N uses Transmission)= 1 - (1 – P(1 neighbor: no Transmission))N

The defendant alleges that he lives in a unit with close proximity of other households (Defendant’s motion for summary Judgment, p. 11). Moreover,

While he was in his kitchen and living room, and upstairs (and not next to a window or open door), Defendant viewed the network preferences of his computer and noticed that at least 12 wifi signals other than his own were visible. These signals had not been generated from within Defendant’s unit and came from neighbors.

Given that at least 12 units are located inside the 50 meter radius from the defendant’ unit, seeing that many wireless connections is not surprising. 50 meters is a minimal range of a typical wi-fi router. Judge Wright in the infamous Ingenuity 13 v John Doe case (CACD 12-cv-08333) used the same analysis and concluded that in a suburban environment, wi-fi connection could be used by dozens of neighbors.

Below are my calculation results for different numbers of neighbors (rows), and different percentages of households that have movies/TV shows in a digital form (columns; starting with the US average of 14%). Red font is for the numbers higher than probability to be killed playing a single round of my ancestors’ favorite sport (16.7%).

Probabilities of at last one neighbor using the Transmission client
14% 20% 30% 40% 50%
1 0.5% 0.7% 1.1% 1.5% 2.2%
2 1.0% 1.5% 2.2% 2.9% 4.4%
3 1.5% 2.2% 3.3% 4.4% 6.5%
4 2.0% 2.9% 4.3% 5.8% 8.5%
5 2.5% 3.6% 5.4% 7.1% 10.6%
6 3.1% 4.3% 6.4% 8.5% 12.5%
7 3.6% 5.0% 7.5% 9.9% 14.5%
8 4.0% 5.7% 8.5% 11.2% 16.4%
9 4.5% 6.4% 9.5% 12.5% 18.2%
10 5.0% 7.1% 10.5% 13.8% 20.0%
11 5.5% 7.8% 11.5% 15.1% 21.8%
12 6.0% 8.5% 12.5% 16.3% 23.5%

Misusing statistics in courts is nothing new. 15 years ago a flawed “expert report” resulted in a wrong incarceration:

Sally Clark (August 1964 – 15 March 2007) was a British solicitor who, in November 1999, became the victim of a miscarriage of justice when she was found guilty of the murder of two of her sons. Although the conviction was overturned and she was freed from prison in 2003, the experience caused her to develop serious psychiatric problems and she died in her home in March 2007 from alcohol poisoning.

Clark’s first son died suddenly within a few weeks of his birth in September 1996, and in December 1998 her second died in a similar manner. A month later, she was arrested and subsequently tried for the murder of both children. The prosecution case relied on significantly flawed statistical evidence presented by paediatrician Professor Sir Roy Meadow, who testified that the chance of two children from an affluent family suffering sudden infant death syndrome was 1 in 73 million. He had arrived at this figure erroneously by squaring 1 in 8500, as being the likelihood of a cot death in similar circumstances. The Royal Statistical Society later issued a statement arguing that there was “no statistical basis” for Meadow’s claim, and expressing its concern at the “misuse of statistics in the courts”.

Of course, our case is not that dramatic; yet don’t forget that juries in civil cases use a very low standard (preponderance of evidence), and can be easily swayed over the 50% threshold by a misleading report, especially given that historically expert witnesses are often being taken at their word without any healthy scrutiny.

So, Mr. Lipscomb, when can I collect my $2,500 paycheck?



Thanks to Raul for finding this gem.

At paragraph 7 of his declaration, Dr. Sarel touts having given testimony in several lawsuits including Innovation Ventures, LLC v. N2G Gistributing, Inc., et al. (MIED 08-CV-10983), in which four years ago Judge Borman granted the defendants’ motion in limine to exclude expert witness Sarel:

The Court finds that Dr. Sarel’s survey suffers from multiple flaws which resulted in an unreliable scientific foundation for its conclusions. […] The Court further finds that the reliability of this survey is so questionable that it is not appropriate material to assist the jury in deciding the issues in this case. Defendants’ motion is therefore granted.


I planned a couple of updates/followups, but the majority of them are moot now: this case settled on 11/6/2015. I bet Lipscomb celebrates — not the cash he was able to wrestle from the defendant (if any), but rather the fact that he dodged a jury trial.

Still may write about the defendant’s expert deposition: it has a couple of interesting tidbits.

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32 responses to ‘Malibu Media expert’s report deserves some scrutiny

  1. This is nothing more than damage control. The fact that the defendant’s expert found many things wrong with Malibu’s evidence supplied by our German investigators leaves a lot to be desired.

    There were many troubling things that the defendants expert singled out that ought to give the court a lot of pause for thought. Nowhere in Malibu’s expert report do I see anything that refutes the points that defendant’s expert found questionable with our German friends evidence and Paige’s findings.

    Maybe we don’t see Malibu’s expert trying to refute Defendants expert report because it is going to be tough to overcome ( sure seems so in my opinion. Defendants report picked up on a lot of things we have not seen before but I am betting the phone lines from Florida to Germany were burning up to get the damage control underway.

    This professor is highly accredited in the Marketing and Survey fields, so exactly what is his extensive knowledge of bit torrent and copyright infringement and the evidence used to prove infringement? Not much that I can see..

    Getting a Professor from Marketing and Survey background to write an expert opinion in a bit torrent copyright infringement case seems rather bizarre. I gather there were no proctologists available to write and expert opinion on BitTorrent either for Malibu.. how sad.

    I gather none of the Subway sandwich artists were available either. Really they may as well have hired someone from Subway to write it , since we are going to use someone whose background is mainly in Marketing and Survey what difference would it make if the kid from subway wrote it? Would it be any more of value?

    I would have been more impressed if this was by someone who was a professor of computer science and networking, or security, or who at least had some knowledge of torrenting.

    IMHO this smacks of desperation because defendants report was quite damning. You can bet that other doe defendants counsel will be looking at defendants expert report and hiring their own experts to look a lot closer at Malibu evidence and you know there is blood in the water here and the defendants counsel will be all over this, count on it.

    Remember what happened to past trolls when the evidence started getting picked apart, and down came those trolling operations

  2. Well, what I also find rather dubious as an assumption is that a neighbor using a Bittorrent client for porn viewing and a neighbor using an open Wifi are supposed to be uncorrelated events.

  3. “Excipio established TCP/IP internet connection with a person using Defendadns IP address”!?!
    What kind of man is this person when it can connect itself to internet?

  4. I’m curious: is there really a detectable difference between one peer-sharing application, like Transmitter and another, like uTorrent? How would one know this, seeing as how it’s all bits and bytes so far as the network is concerned?

      • unless of course the software allows for a different string to be reported.
        There exist in the world hacked clients that report less dl higher uploads and much like one can change the user agent on a browser they can report all sorts of names.
        All data can be manipulated and perception is merely what they allow you to see.

  5. The report noted the numbers obtained from How many folks got to that website to download Tranmission versus the actual website. The numbers are fudge to show the low chance of a user using Transmission.

  6. From some of the questions that Ms. Conlin asked in her interrogatories of MM, it appears that she may have seen this site. (Were condoms and dental dams used in filming, were all permits acquired, etc.) I hope that is the case and she can use some of the fine points made in both this article by SJD and the comments to successfully challenge the BS in this “Analysis”.

    • Which begs the question: Why do you hire this particular guy when he appears to not qualify as an expert witness in the areas he is proffering an “expert” report? (above comment is mine but hit post prematurely).

    • IP laws created a cottage industry of copyright/trademark/patent litigation.
      The cottage industry of copyright/trademark/patent litigation created a cottage industry of litigation consultants/subject experts.
      The cottage industry of litigation consultants/subject experts created a cottage industry of expert reviews.

  7. The assumptions the expert and Lipscomb make based on a millisecond of transmitted data are truly amazing. There will be no trial. 98% of plaintiff’s arguments are not admissible. Just pure malarkey. When you build a case on speculation, you end up with nothing but speculation.

    • because it is a civil matter you only have to “prove” .00000001% more likely than not.
      The audience for this performance is technologically “challenged” jurists or juries where anyone with any technical grasp will be excused to avoid them blindly accepting the magical never wrong technology.
      No one would ever bring a suit unless it was true.
      Experts are smarter than I am.
      All of this evidence proves you are guilty, even if all of it is based on assumptions and huge leaps that ignore anything other than the narrative they spin of you have to be guilty.

      Are you willing to take your chances with a group of people who start from the belief you are a degenerate porn thief? People who won’t know the flaws, because they only can consider what is presented in court… which includes a long damning list of other alleged downloads you had to have done. I mean you liked a song on YouTube and there was a download of that song that TOTALLY means you did it.

      This is about making it impossible for targets to do anything other than settle. Your name will always be associated with porn and stealing. Your neighbors will have been deposed and know that you must have done it because why else would lawyers put an innocent person through this.

      Your life screwed over less than a second of “evidence”, is it any wonder it it is so profitable? The risk to reward for a doe is not worth it, and the risk to the trolls isn’t anything. Even when they do horrible things, violate court orders, call Judges assholes in their own courtrooms the “penalties” aren’t even giving a 2yr old a timeout.

      • This may be the case if a trial is held and the judge appoints a jury rather than hear the case him- or herself. But if the case never goes to trial because of the many points raised here already, the likelihood of a jury trial on appeal is very slim.

        • The playbook so far has been to pile up shitty “evidence” then move for the Judge to just rule in their favor. They tack on more demands of sanctions for perjury & things increasing the damages they seek.
          And remember MM can and will still file to dismiss if things take a turn.

        • TAC,

          I think MM is already at the stage where they know they aren’t going to make anything on this case. Now they are just trying to run up the cost for the Defendant, so the next guy will be less likely to stand up to them.

  8. The chance that the first user uses mac/transmission is 1, and since the report was generated on that basis, should be held at 1. Therefore the worst case is for the chances of a second are the same as for a user of that program in the general population. No fancy math, no multiplication, x*1 is always x. 😀 The math is the same given the following question:
    Given you flip a coin and get heads, what are the chances that if you flip it again you will get heads? Answer 1/2 because it has two sides and one or the other will appear.

  9. Garbage in equals garbage out. The expert used very old data and makes no attempt to explain who it is relevant to this particular case. Is pirating more prevalent in Florida compared to global occurrence? Id reflective of BitTorrent clients? Transmission is the default client in Linus distributions. Apple users might simply download from source. It certainly is popular for Apple users. Four to five year old data does not reflect current internet world. A telephone survey is suspicious. Not many are going to admit they are pirates to some unknown person on the phone. No one has established that anyone one in particular is a mass BitTorrent user. And know one knows who the IP address was assigned to, except for one instance of which is was a millisecond of time.

    • I like this statement in his declaration: “No report nor any testimony that I have provided has ever been excluded on the basis that I am not an expert on surveys or statistics.” I guess that is true. The data was excluded not because he isn’t an expert, it was excluded because it was crap data.

    • While this is indeed a disappointment, this settlement gives Conlin, against whom Lipscomb wages a war of attrition, an opportunity to concentrate on other cases. Among those, MM v Sharp (FLMD 14-cv-02138) looks very promising. If Verizon doesn’t throw the towel, it will be doubly interesting.

        • I would be wiling to bet that Conlin’s expert report in the previous case was giving the trolls enough of a concern that they worried a judge might be inclined to give it some serious weight when compered with the evidence used by Malibu to file these cases.

          The trolls usually are very very hesitant to just walk away from cases with no cash for their efforts, that signals to me that they were worried there could be a painful costs award if they ended up on the losing end, and we all know how the trolls are loathe to walk away with nothing gained.

          i’d be willing to bet that the phone lines from Florida to Germany were burning hot to “remidiate” the flaws that were found by Conlin’s expert regarding our German friends evidence.

          Someone was worried about consequences of a Lamberson like fee award, enough so they are more than happy to lose the filing fee and related fees and go away not losing their shirts in the process.

          Conlin has done very well against the trolls, her clients I am sure are pleased. I dont think the trolls will be happy to see Conlin’s name come up in future litigation as an adeversary

  10. Conlin has developed a bag of tricks that force MM to work very hard for their money. She can use the same tactics on every case because every case is virtually identical.

    The expert report also pulled the Germans a little more out into the open. They admitted that Paige didn’t do the testing.

    Also what was that about the defendant having to pay to get all of the evidence?

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