In Malibu Media v John Doe (NJD 2:12-cv-8506), the expert discovered dozens of X-Art’s films on the defendant’s hard drive, as well as an abundant evidence of Bittorrent use. Nonetheless, Paige didn’t find this fact sufficient to conclude that the defendant is the infringer (emphasis is original):
[…] to explain, the movie files could be put onto the examined hard drives by the defendant’s friend or family member, who had a valid X-Art subscription, or by the defendant’s foes, who successfully plotted to set him up. […] In my 30 years of experience as a forensic specialist, I never saw evidence so abundant. Every criminal made at least modest effort to cover his tracks. Consequently, I believe there is a catch here. In other words, the presence of every film listed in the Exhibit B to the Complaint is too good to be true.
I know you shake your head in disbelief, so did I. Nonetheless, after giving it a thought, I concluded that this seemingly counter-intuitive recommendation is not unreasonable. As a matter of fact, Paige is being very consistent here. In Malibu Media v. Jesse Raleigh (MIWD 13-cv-00360), the expert found neither X-Art smut nor evidence of spoliation on any of the defendant’s storage devices (even a USB monitor came out clean). However, from Malibu’s perspective, it is not a proof of innocence by any stretch. In his 3/11/2016 declaration, Patrick Paige said (emphasis is original):
7. Accordingly, just because the movie files were not located on the hard drives I examined does not mean that the movies never existed on the hard drives examined or do not exist on an unproduced hard drive.
So, I’m sure that now you will agree with me: if the absence of allegedly infringed material is not a proof of innocence, it is only logical to conclude that the presence of movies in question on a defendant’s hard drive is not a proof of guilt.
The case against the lucky Doe was dismissed the next day, yet without prejudice. There are two possible reasons for that: first, dismissing with prejudice would open the troll to the defendant’s motion for attorney fees and costs; second, I believe that Malibu’s attorneys still doubt this Doe’s innocence, and may re-file a lawsuit against him, if some solid evidence of infringement (such as a Facebook ‘like’ of a popular song) surfaces.