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.
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.
- Chicago Daily Law Bulletin: In rare scene, Malibu Media takes a loss
- Cook County Record: Malibu Media loses porn piracy case vs Doe after no downloaded materials found on Doe’s computer
- Matthew Sag: Some thoughts on Malibu Media’s recent loss and its implications
It didn’t take long: today Cynthia Conlin noticed this landmark order in Malibu Media v. Weaver (FLMD 14-cv-01580).
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.
@fightcopytrolls Or to….altogether now, leverage a settlement of the remaining attorney’s fees issue.
— Raul (@Raul15340965) March 5, 2016
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:
— Zeno Elea (@Zenofyle) April 2, 2016