Litigation-friendly pornography producer Malibu Media has suffered a rare loss, which may spell trouble as it proceeds with more cases.
According to the Chicago Daily Law Bulletin, Malibu Media has filed 5,207 copyright lawsuits in the past four years, only two of which have reached judgment.
Malibu Media typically brings its cases as “John Doe” lawsuits, alleging that an individual illegally downloaded and distributed Malibu’s movies on the file-sharing network BitTorrent. To prove its claims, Malibu hires an investigator to obtain potential infringers’ Internet protocol (IP) addresses on BitTorrent. When movies are downloaded or distributed by a BitTorrent user, that user’s IP address is identified and made known to Malibu. As we have written about previously, this method of identifying infringers can result in false positives, as the IP addresses can be dynamic and used by several people in a household, neighbors, guests of a business, etc.
Now a federal court has dealt Malibu a huge blow by determining that proof of the IP addresses alone is insufficient to prove copyright infringement. Since there was no evidence of Malibu’s movies on John Doe’s computer, it was relying on technical evidence gathered by forensic investigators who detected the defendant’s IP address sharing bits of the infringing files. But that evidence can be submitted only by an expert, and the court excluded Malibu from presenting the testimony of its expert witness.
Malibu’s expert witness was excluded for failure to abide by the procedural rules—Malibu failed to make the proper expert disclosure, even after being warned to do so by the judge.
But what makes the decision here more interesting is that the judge decided to comment on the evidence even assuming Malibu’s expert reports were admissible. Malibu could not point to any of the films on John Doe’s computer, nor could Malibu show that John Doe ever had any software that would allow him to view Malibu’s films. Thus, the court found that the expert evidence showed only that someone using John Doe’s IP address shared bits of Malibu’s movies. The court ruled that this type of evidence was insufficient to show John Doe was the one sharing Malibu’s films.
From a copyright perspective, the court’s rulings could generate significant guidance and debate and is sure to be litigated again; even if Malibu could show that John Doe was the one sharing Malibu’s films, there was not enough evidence that the “bits” and “pieces” of Malibu’s films would be enough to demonstrate copyright infringement. The court repeated the maxim that “not all copying … is copyright infringement.” Rather, Malibu would have to show that the bits and pieces that were shared from John Doe’s IP address were sufficiently copyrightable.
Because Malibu showed only that bits and pieces of movies were shared, the court found that “Malibu’s evidence on the motion does not come close to carrying its burden on this element of infringement.” The court explained that there was nothing in Malibu’s expert declarations that “would allow the court to conclude that the ‘bits’ and ‘pieces’ captured . . . as allegedly distributed from Doe’s IP address meet the standard of originality justifying a finding that they are protectable elements of the works.”
This ruling can have much broader implications. This is the type of evidence Malibu uses in most cases, and many defendants will now challenge whether Malibu truly has enough evidence to bring its claims. The ruling is unlikely to prevent Malibu from enforcing its copyrights, but it may require far more evidence for Malibu to proceed with its claims. Though many are unsure about how the ruling will change the landscape, given the number of lawsuits Malibu has brought and continues to bring, certainty may come soon.