Guardaley | X-Art

Illinois Doe defendant summarily wins over Malibu Media in one of the most watched cases

Malibu Media v John Doe (ILND 13-cv-06312) is one of the most advanced and eventful cases. I wrote about it on more than one occasion. It even made headlines in the tech media because of an apoplectic, full of misinterpretations Malibu’s motion for protective order that labeled our community “Fanatical Internet Hate Group.”

Today Judge Geraldine Soat Brown ruled on two motions for summary judgment: one by Malibu, the other by the defendant, denying the former and granting the latter.

To the best of my knowledge, this is the second time Malibu Media loses on a motion for summary judgment. While I don’t want to understate the significance of the first case (in Pennsylvania), Judge Brown’s memorandum is much more thorough, and hits at the most vulnerable part of the Guardaley/Lipscomb/Malibu enterprise — evidence (or, more precisely, the lack thereof).

In this case, like in many others, absolutely no traces of X-Art’s smut were found on the defendant’s hard drives:

Malibu has presented no evidence that any part of its works was found on Doe’s computers or other electronic devices that Malibu subjected to forensic examination.

Well, this fact never stopped Lipscomb & Co. Because the German magic black box always produces impeccable evidence, right?

Instead, Malibu argues that technical evidence gathered by its forensic investigators located in Germany demonstrates that Doe copied and distributed parts of Malibu’s movies.

The judge disagrees that such “evidence” proves anything:

“To establish copyright infringement, [a party] must prove two elements: ‘(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.’” […] The first element is not disputed here. The second is disputed.

First, the judge calls out the “argument” of Malibu’s expert Patrick Paige, which can be summarized as “the defendant is a sophisticated computer user, and the fact that we didn’t find anything on his hard drive means that he deleted the movies without any trace.” “That is not evidence that Doe copied or distributed Malibu’s works” — the judge determines.

Next, Judge Brown notes that “the IP address alone is not enough to impose liability on Doe.” I don’t think any elaboration is required on this point. I only want to draw your attention to the Footnote 5. Judges don’t like to be lied to, and Lipscomb was caught red-handed:

Malibu contends that this court previously held that Malibu need only prove that Doe’s IP address was used in order to prove Doe’s liability. That is not correct and the partial quotation cited by Malibu is taken out of context. Evidence of a link between an IP address and Malibu’s movies may be enough to justify discovery, but it is not enough to prove liability. As Malibu’s counsel is aware, the hearing on September 30, 2014 did not involve the standard to prove liability; rather, the issue was whether Malibu could take discovery regarding Doe’s work computer as well as his home computer. Malibu has no evidence suggesting that an IP address used by Doe’s work computer was in any way involved with Malibu’s works. The court concluded that Malibu’s effort to take discovery about Doe’s work computer without even a link to the IP address used by those computers was “just fishing.”

Another devastating blow to the “evidence” is what everyone knows, but we rarely hear it from judges: the naked troll emperor simply doesn’t possess enough data to show that a meaningful part of a movie was copied:

There is a second reason why summary judgment could not be granted for Malibu based on the evidence before the court. Malibu must show copying of “constituent elements of the work that are original.” […] There is virtually no evidence before the court of what Doe allegedly copied or distributed.

I won’t go over the second part of the memorandum, where Judge Brown grants the defendant’s motion to strike belated declarations by Malibu’s “experts,” describing attempts to sneakily introduce new opinions after the deadline as “gamesmanship under the guise of supplementation.”

Read the entire memorandum, it is worth your time: there are many more good tidbits there. It is not only a victory for the common sense and decency, but a new powerful weapon for Doe defendants across the country to utilize.

Congratulations Jonathan Phillips, Erin Russell, and Delvan Neville. Hard work, honesty and professionalism typically pays off.

As a prevailing party, the defendant is entitled to 17 U.S.C. § 505 fees. Although such fees are at court’s discretion, and we saw cases when prevailing defendants were left with hefty bills, seeing Judge Brown’s attitude and understanding of the game, I doubt it will happen here.

(Clerk’s judgment form)




It didn’t take long: today Cynthia Conlin noticed this landmark order in Malibu Media v. Weaver (FLMD 14-cv-01580).


Full Prenda!

Today Malibu Media field a notice of appeal. Not totally unexpected. First, this order was devastating for the racket; secondly, since the likelihood of reversal is slim, I see it mostly as a delay tactic: the house of card is destined to collapse earlier or later, so the trolls will try to squeeze as much money as possible from the public while the slow wheels of justice grind them to dust.

When I procure the appellate brief (which is due on or before 4/13/2016), I’ll post it either here or in a new article.


Yesterday Lipscomb dropped the appeal. Some sort of agreement was made with the defense. It may be that the action was designed as a bargaining chip — to avoid or lessen inevitable 6-figure attorney fees. If so, it is hardly surprising: using courts for improper purpose has been always Lipscomb’s modus operandi.

Or, there is an alternative opinion:

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21 responses to ‘Illinois Doe defendant summarily wins over Malibu Media in one of the most watched cases

  1. Date difference from 9/4/13 to 2/8/16
    2 years, 5 months, and 4 days.
    If you’re counting workdays, there are 633 weekdays.

    No evidence of the allegations.
    One wonders how much wasting over 2 years of an innocent persons life will be worth.

  2. Page 5 end of the first proposed proof…Word games?
    “to record the entire infringing transaction”
    If they have the whole transaction why always just submit a blink?
    Or is the actual entire infringing transaction just that blink?

  3. Congrats, Erin and client. Well done. This once again proves that you can fight Malibu and win, under the right circumstances.

  4. To paraphrase the PA case which is echoed here: a PCAP snippet is not a copy of the work itself and no jury could find it bears a “substantial similarity” to Malibu Media’s copyrighted work.

  5. “the defendant is a sophisticated computer user, and the fact that we didn’t find anything on his hard drive means that he deleted the movies without any trace.”

    So they had to image the drives because their expert can prove it was there, but somehow there is a way to avoid the forensic techniques that even we can’t detect.
    The cat is both alive and dead, either answer means you downloaded the file.

  6. Ms. Russell & Mr. Phillips went after Malibu’s so called “experts” and their evidence by our German friends. Most in the IHG have always opined our thoughts about the methodology of how the German investigators detect infringement and how they affirm one of Malibu’s works were allegedly infringed and how Patzer, Feiser and Paige’s declarations factor into the claim of infringement being made.

    Russell and Phillips challenged Malibu’s so called ” evidence ” collected by our German friends, and rightly so. In the judges order it is noted by the Judge that Malibu stated in one of it’s declarations to the court that:

    An exhibit to Patzer’s declaration states that “CDs containing the following computer evidence were Fed Ex-ed to the Court on April 17, 2014. These CDs contains [sic]: one PCAP per infringed work; one technical report per infringed work; one .tar file for each infringed work;and one .torrent file for each infringed work.” [Dkt 148-11.] The docket does not reflect anysuch filing, nor has this court received any such CD

    Oops. So Malibu states that it sent the court this and the court say’s Nope, never got to it. I find that somewhat strange, surely Malibu could have asked the court to allow it to provide the Fed-ex receipt and ask to be allowed to re-submit the exhibits to the court, but never did.

    I can only imagine that the paralegals who are doing work in relation to Malibu cases are cowering with fear over who will be sacrificed to atone for the exhibit not making it to the court.

    It would appear that while Malibu calls Paige, Patzer and Feiser as experts and their declarations seem to reflect that when these cases are filed with their declarations, Malibu doeskin seem to want the court to consider them experts. On one hand Malibu proffers there testimony as such but when it comes to testifying or being deposed Malibu seems to indicate they are lay witnesses???

    So first Malibu makes the assertion Patzer, Feiser and Paige are qualified and have knowledge about how the systems to collect, determine and quantify a doe allegedly infringe Malibu’s work and are ready to testify if need be…. but then when the time comes doesnt want their testimony to be considered as expert testimony? How does that work? It can’t be both ways kids, it has to be one or the other. Could it be that Malibu is a little gun shy after Feiser’s testimony in Australia with the DBC wanting to get the settlement machine going there? One can only wonder.

    The Judge certainly seems to think that the declarations offered by Patzer and Feiser are expert testimony and the judge noted:
    “Patzer’s testimony in the declaration requires an ability to read and analyze a computer program that is the result of a proprietary process. As Malibu’s counsel admitted at the January 25,2015 hearing, he cannot do it, his client cannot do it, and Doe would be required to retain an expert to do it. It is not lay testimony”

    With such solid proprietary software and solid investigative techniques being used to determine that their system detects that the alleged infringer 99% of the time that they would be very confident to let Patzer and Feiser testify to their methodology, apparently that doesnt seem to be so in this case in my opinion.

    Paige’s expert report got thumped fairly hard in my opinion by the defendants expert Delvan Neville’s examination of the same devices Paige had access to. The difference in the conclusions Paige opined to and Neville’s were fairly astounding. There were facts about when VMWare was used and removed by the defendant and that Paige seems to be of the opinion that points to spoliation and failure to turn over devices ( a refrain we have seen time and time again in Malibu cases were there is evidence of Malibu works on defendants computer or other electronic devices Malibu examines)

    The fact that Neville’s declaration points out that yes, VMware was on the defendants computer and was a trial version and removed well before the infringement occurrence dates is a very telling point, surely if Neville could reach that conclusion, why was Paige unable to do so? Was Paige aware of this as well? Obviously Paige found there was VMWare on the machine which he noted, but yet either missed the dates of use or did not include the dates in his report, either way, Paige report doesnt seem quite up to snuff in my opinion and apparently the court saw an issue with Paige’s findings as well.

    I also wonder why Malibu never refuted Neville’s findings other than to proffer a couple more factoids from Paige again, that as the Judge stated, really didnt offer much to refute Neville’s report. Could it be the trolls are so embolden when other courts rubber stamp Malibu cases through their courtrooms that the trolls believe they are invincible? Perhaps. Or could it be that the trolls didnt want to see their evidence and experts actually get crossed in a trial by defendants counsel and were concerned at the outcome that could occur, if you ask me, I think Malibu is very concerned about that. I am of the opinion it’s is why Malibu want’s their so called experts declarations and any subsequent testimony to be given by Patzer and Feiser under the guise of lay witnesses. If Malibu believes in our German friends techniques and collection methods, it strikes me as odd that they dont really wanted them to be termed as experts, even though their employment would seem to relate just that way.

    It would also seem rather striking that when defendants counsel asked for and wanted to see the PCAPs and pieces or piece of file that was supposedly viewed side by side to determine and come to the conclusion that infringement of Malibu’s work has indeed taken place by defendants IP address that there seem to be what in my opinion was hesitation to have the defendants expert review Malibu’s evidence as to how this conclusion came to be.

    The fact that Malibu stated only an expert could do this with the appropriate tolls and software was rather bizarre in my mind. Being that defendants counsel has already retained an expert to examine the defendants drives and electronic did Malibu honestly believe Neville wouldn’t have the capacity or capability to review the PCAP’s or could it be that Malibu was concerned about the scrutiny and results of what Neville’s examination of the PCAP’s may reveal, I would be of the opinion that it was the latter

    Malibu also seems to have gotten a little rebuke from the Judge about taken her comments out of context and asserting a narrative that was different from what the Judge stated. It’s not often you see a Judge make a rap of one’s knuckles in her order but in this case she has, and obviously was not amused that her words were misconstrued. I am sure Malibu’s counsel just made an error,just ask them.

    So once again we have a case where Malibu could have got out a lot earlier when the dark clouds had formed and the realization that there was trouble ahead and a defendant and their counsel that was going to pursue their defendants innocence. Malibu though played the role of the Big Bad Wolf and huffed and puffed about blowing the house down but yet the house is still standing with nary anything out of place.

    This judge obviously took a hard look at the facts and declarations of both the plaintiff and defendant and went through the details with a fine tooth comb and found many issues with the Plaintiff case. This is a resounding win for the defendants and their counsel and a thumping loss for the Plaintiffs that is going to leave them with some bruises and a possible costly award to defendants and defendants counsel. Will we see a Lamberson like fee award? Time will tell and we will have to wait for Russell and Phillips to submit their submission to the judge for consideration for costs which we all know the trolls will do more huffing and puffing about how they are a victim here and no costs should be awarded.

    It will be the usual Malibu mantra of how the defendant should be happy that Malibu is willing to walk away with each side paying their own costs and a friendly warning that defendant should infringe no more and should just run along. Doubt that will fly here. Russell and Phillips defendant should be fully compensated and then some in my mind for the time expense and humiliation of having to be brought into an action that it appears from the Judges order the defendant shouldn’t have even brought into ( my opinion of course )

    I look forward to the Malibu tripping all over it self to avoid a Lamberson like fee award, and they are up against it, Russell and Phillips are going to have the facts the judge reached in her order on their side and it is going to be very heard for the Malibu to overcome. I sense some serious tantrums being picked up on the Richter scale in the Florida in the coming weeks.

    The defendants and their counsels work in this case and the judges conclusion in her order are going to have a reverb effect for Malibu, this case is sure to be noted to other Judges were Malibu cases are being heard. Blood in the water, I sure think so.

    It only took a few adverse rulings and cases along with greed to bring the Prenda gang tumbling down from the pedestal and into disgrace, will the same happen to Malibu and the assorted trolls who are happily trolling along in this game, time will tell.

    • One only has to read a report by Delvan Neville or the Patzer, Feiser, Paige trio to figure out that the trio tries to make simple things sound complex and bury their methodology as deeply as possible (assuming they have a methodology) where Delvan’s reports make complex things understandable, and he clearly states the methodology he used to reach his findings.

      Which would you trust? (that’s rhetorical)

    • I was told by an attorney in an email that “I am glad to see the judge wrote skillfully for the possible appeal.” He didn’t elaborate, but I’ll get back to him.

    • I would guess very small.
      An appeal will cost even more money and it at best would restart their flimsy case against a Doe who has already shown innocence. They would then sink more money into litigating this case that they have no hope of winning.
      They will file something petulant, try to squirm away, complain about the fees, but in the end will pay off to make the pain stop.

  7. i am shocked! i hope that my case goes quicker than this. i am currently awaiting my motion to be heard (to my understanding, this hearing means that the court will determine whether to advance the case or not?).

    hoping to get on with my life. while a minor stressor, with my anxiety and depression, i am mentally hurting. but this news is good to my eyes and ears. hopefully this ends up on the die troll site, as well, for more attention.

  8. I just finished reading the Opinion and Order in it’s entirety. After reading it, I expect approximately one request for Judicial notice of it to be filed per each MM case currently pending with any type of competent representation for the defendant.

  9. The judgement document is there and contains the statement “Defendant(s) will recover costs from Plaintiff(s)”.

    It looks like a form document, but I still like seeing the words there.

    • I see that: added a link.

      Also: today Cynthia Conlin noticed this landmark order in Malibu Media v. Weaver (FLMD 14-cv-01580). It didn’t take long, and I believe it’s just the beginning. I expect this order will most visibly impact Malibu Media v Raleigh (MIWD) — a case strikingly similar to this one (no smut was ever found, baseless, easily debunkable accusations in spoliation, etc, etc.).

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