Guardaley | X-Art

Judge Alsup questions accuracy of Malibu Media’s geolocation technology, stays subpoena

On 6/16/2016 there was a hearing on the defendant’s motion to quash subpoena in Malibu Media v John Doe (CAND 16-cv-1006, defense attorney: Thomas Pedreira). Malibu’s attorneys on the record, Brenna Erlbaum and Brian Heit, failed to appear, and the motion was taken under advisement. Today Judge Alsup ruled on the motion. While finding the majority of the defendant’s arguments (namely, burden of compliance and denial of liability) insufficient to quash the subpoena, he nonetheless stayed this subpoena pending a sworn declaration from Malibu’s experts — that their geolocation tech is accurate. The judge mentioned recent rulings by the California Southern District’s three magistrates, who didn’t allow early discovery in at least 17 cases) and Judge Locke’s decision to stay all the Malibu Media cases in the New York Southern District.

This order holds that Malibu Media’s failure to include a sworn record on the reliability of its IP address geolocation methodology is fatal and constitutes cause to quash the instant subpoena on Comcast. Accordingly, compliance with the subpoena will be STAYED, pending further proceedings.

While this is a welcomed development, there is a long way to a happy day when the porno-trolling collective is ousted from the district for good. The judge explicitly noted that at this time Malibu’s failures are mendable:

At this point, it is not necessary to conduct an evidentiary investigation into the reliability of Malibu Media’s geolocation technology. A sworn first-hand declaration describing the process used in this case and its reliability will first be considered, subject possibly to proof later. The undersigned may revisit this decision in future cases if circumstances cast doubt on the reliability of Malibu Media’s methodology.

Malibu Media should take this ruling to heart in any future or pending requests to serve third-party subpoenas.

In addition to questioning the geolocation reliability, Judge Alsup also expressed skepticism over the possibility that defendant’s dynamic IP didn’t change for a long period of time and demanded a clarification:

At oral argument, defense counsel noted that the extended duration of the alleged pattern of infringement indicates that the above-named IP address is likely a static address (generally reserved for business customers), rather than a dynamic address, which changes over shorter periods of time. Nothing in the record currently addresses the differences between static and dynamic IP addresses, or the frequency at which dynamic IP addresses change, but to the extent that bears on Malibu Media’s geolocation methodology, any sworn declaration should address that issue as well.

Meanwhile, in the Southern District of California, Malibu filed a response to Magistrate Skomal’s order for supplemental briefing: the magistrate was also skeptical about the geolocation reliability (Malibu Media v John Doe, CASD 16-cv-00781). This response was not accompanied by an expert’s declaration: the only declaration attached was attorney Erlbaum’s. A proper adjective to describe this missive is “weak”: not only is it mainly comprised of naked assertions, but the reference to IP matching service provider (MaxMind) didn’t strongly support Malibu’s claims: the 90% likelihood of an IP address being resolved to a proper state is way too low.

The attached report that lists 102 instances of purportedly correct matchings, was lame too: when a judge asks you for a proof, and you reply by listing more than a hundred examples, only 6 of which are from his district, “weak” is probably an understatement.

But “we won in poker once, which makes this game 100% winnable” Right?

Apparently, Malibu’s “experts” possess a proprietary technique of magically improving accuracy from 90% to 100%.

Judge Alsup is likely familiar with this half-assed response in the neighboring district. Did you notice that he requested not any declaration but a “first-hand declaration”? Seems to me that this type of response won’t likely fly in this judge’s chambers.

Followup

Update

12/6/2016

In the follow-up post linked above I expressed my skepticism regarding Malibu’s geolocation accuracy claim, which was purportedly supported by sworn affidavits that listed cases in which IP addresses resolved to the putative defendants’ district. Due to the incompleteness of the list, I strongly suspected cherry picking:

Without seeing the subpoena results, all I wrote above is no more than a speculation. I don’t have a power to request results for the omitted cases. However, judges have, and I really hope for a sua sponte order compelling Malibu to fill the gaps. Also, defense attorneys can petition judges to allow them to subpoena the ISP for very limited information: municipality is enough.

In any case, apparent cherry-picking should raise judicial brows, and the troll must explain why those particular IP addresses (60% of total) and not the others were chosen to prove the accuracy.

Today I was excited to discover Judge Alsup’s order denying (albeit without prejudice) ex-parte discovery in 53 CAND cases exactly for the same reason:

[…] Attorney Mosesi appended an spreadsheet to back up that data, but the spreadsheet omitted dozens of cases filed in this district alone.

It appears those cases were omitted because Malibu Media never received a response from the Internet service provider in those cases, but the failure to address so many cases in this United States District Court For the Northern District of California district (and presumably elsewhere in California) casts significant doubt on counsel’s personal knowledge of the accuracy of the Maxmind database. Maxmind’s own statements of its accuracy, restated in counsel’s declaration, are hearsay. Malibu Media has failed to provide sworn evidence to support the reliability of the Maxmind database, which is necessary to show that this Court has personal jurisdiction over each of the defendants and that venue is proper here. Accordingly, Malibu Media’s motions are DENIED.

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Discussion

16 responses to ‘Judge Alsup questions accuracy of Malibu Media’s geolocation technology, stays subpoena

  1. So it sounds like when Troll Lipscomb stopped working for Malibu Media/X-Art, he took “never convicted” expert Patrick Paige with him. Otherwise I expect they would have used the Paige declaration that the technology worked. If that is reason, then Malibu media also doesn’t have a cheap source to do the forensic examinations either. LOL! The Defense attorneys are going to have a fun time with this.

    DTD 🙂

  2. I find it telling that the wonder kids never showed for the hearing. Wonder why that would be? The fact the judge wants a first hand signed document that the technology works as Malibu has claimed ought to make the trolls proceed with caution one would think, but we all know the trolls are addicted to that easy settlement cash, so you can bet they will find someone to sign for the accuracy of their results.

    Having the trolls find someone who will attest to the accuracy of the geo-location results ought to have the trolls on the defensive as I would imagine most Doe’s and their counsel will be doing their own fact checking of the accuracy of these results, this will be one of those loose threads they can pull at to see just how much is going to unravel, and you can bet that Doe’s counsel will take full advantage of pointing out the fallacy of IP geo-location services to judges who are already skeptical.

    Maybe the kids didnt fell they had the right stuff to go up against the Doe’s counsel on the matter, or maybe they were instructed not to appear so as not to have to answer anything that might give the judge pause for thought or maybe whoever is running the show doesnt have the faith ( my opinion of course ) or maybe the kids are still celebrating that victory they were crowing about.

    Well looks like California might not be the most troll friendly after all, and we all know the trolls are sure avoiding filing in Judge Wrights district, I am guessing the Prenda fiasco has them scared silly, and it should.

    Looks like California will be very interesting to watch in the next while, I expect we will see a lot of cut and run if the trolls think they are in trouble rather than having to answer and actually fight a battle with a Doe, of course the kids always have the newly transplanted florida troll to sub in for them. Ought to be fun to watch

  3. I find it interesting that Judge Alsup called the case at the beginning of the calendar (I believe this means ‘first thing in the morning’) and left it hanging open all day, just in case the kids wandered in, until the end of the calendar. You don’t get that kind of leeway when answering a traffic summons.

    I’m sure the Judge is not amused. Kids, govern yourselves accordingly.

    • Not a lawyer here, but pretty sure it *is* perjury. Something to do with ‘sworn statements’ or ‘lying to the court’ or some such, I think.

    • I don’t see any false statements there. Just very carefully worded claims.

      Their affidavit is basically “I once read some unverified marketing claims from a website”.

      And my statement is that Dumbo tripled in size and exploded.
      https://en.wikipedia.org/wiki/Wikipedia:Wikiality_and_Other_Tripling_Elephants

      The difference between my statement and their statement is that mine is much more credible. I read it on Wikipedia, a web site known world-wide and used by tens or millions of people each day. They read it on an obscure corner of a little-known website. Wikipedia is typically used for factual reference. Their statement came from a marketing pitch. I took a snapshot of the page, and a screenshot on June 21 2016, which I’m willing to state are true and correct copies as of that date. They didn’t bother with anything of the sort. I’m unrelated to Wikipedia, and am clear about stating the relations. They are presumably clients, customers, or perhaps even the principles of the web site in question. Wikipedia has a clearly recorded and trivially accessible modification history, with replication making invisible modification extraordinary difficult. Their website could change claims at any time with no indication.

      Bottom line: if you don’t believe that Dumbo exploded, you should treat their filing as demonstrating how weak their statements are. Third-party geo-location based on IP is an informed guess roughly akin to identifying hair color and skin tone based on a person’s name. You might typically be close, but it’s not a valid method of identification.

      • You’re missing the point here. Judge Alsup knows very well their affidavit is worthless, hence his requirement for a better one. One they can’t fill with bullshit without it either being not what he asked for or worse (for them) containing falsehoods. I strongly suspect they will not comply and allow the case to be dropped.

  4. There’s already a good amount of case law and subsequent supporting expert testimonial that exists to crush any notion that geolocation technology actually works. A decent defense attorney could quickly scan through this site and find references to such works. The trolls are in an indefensible position especially when the defense can present existing rulings in their favor. Judges generally trust other judges.

  5. It’s always nice to see one’s reasonable suspicians about aspects of this enterprise shared, repeatedly, by jurist after jurist gradually. Now if only a judge would question why most of these experts seem to originate in Europe and Germany in particular.

  6. Can someone tell me how to search all the cases that is dismissed base on the accuracy of geo location with Judge Alsup? I also receive a subpoena and send to Judge Alsup. I would like to review and learn how to file a motion. You can email me or replay here. Thanks.

    • Alsup didn’t dismiss any cases based on geolocation. In December he ordered Malibu to “provide sworn evidence to support the reliability of the Maxmind database,” staying subpoenas in 53 cases. Malibu responded on January 19th (I don’t have a copy), and Alsup was seemingly satisfied, allowed discovery.

      All the eyes are now on the 15-cv-04441: it seems that there will be trial on 3/20, unless X-Art agrees to pay defendant before that. If it happens, it will change the bittorent litigation landscape dramatically, not clear the direction though.

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