I started writing this blog in August 2015. At the time, we were still defending Malibu Media cases, and BitTorrent litigation, though waning (having taken a year-long break), was still topical in Florida. However, it soon became stale because, in October 1, 2015, Malibu Media filed its very last copyright infringement lawsuits in the state of Florida. So I shelved this blog, and, for the last year or so, have not thought much about serious BitTorrent litigation. Frankly, there’s no need. Every now and then a plaintiff pops up, but rarely do they want to take the case even into the discovery phase. Yawn.
Recently, however, Jennifer Reed wrote a great blog about the choices of torrenting v. streaming. Reading it reminded me of this very post, so I looked through my unpublished blog drafts to find it, and I decided to finish it.
While I was at it, I took a gander at PACER and saw that, between October 9 and 28, 2016, Malibu Media has filed 49 lawsuits against “John Doe” defendants in California. That same month, it filed 17 cases in Maryland, and 5 in the District of Columbia.
Simply, Malibu Media’s lawsuits have not died. They may have stopped in Florida, and maybe our own vigorous defense had something to do with it (at least we like to think so), but, while we relax with margaritas under palm trees (ahem, it was 80º here today), Malibu Media lawsuits are alive and well in other states.
So I figured, for today’s Throw Back Thursday, it might be worth sharing my thoughts, from August 2015, and . . . finishing them.
Are Bit-Torrent cases modern-day witch trials?
In the 1700s, accused witches were tied up and thrown into a lake or river to see what would happen. If they sank, they were thought innocent. If they stayed afloat, they were obviously a witch, at which point they would suffer an equally cruel fate. In other words, once you were accused of being a witch, there was no hope; as soon as you’ve hit the water, you’re dead.
Recently, I have felt that BitTorrent Plaintiffs are putting Defendants to the sink-or-float test. Instead of trial by water, the trial is by computer. If the BitTorrent file appears on the hard drive, the Defendant is liable. If it’s not there, however, the Defendant is liable because he must have deleted it. In other words, as soon as your hard drive is turned over, you’re guilty. There is no thought that, maybe, just maybe — it never was on the computer to begin with.
Is this logical? Heavens no. But it is the opinion of the Plaintiffs. According to the Plaintiffs, or at least Malibu Media, everyone is guilty.
Why is this a problem? First, it’s a logical fallacy. “Jumping to conclusions,” or “hasty generalizations” are fallacies of faulty logic by generalizing a conclusion based on insufficient evidence. And that is what Malibu Media has made: hasty conclusions without considering all of the variables. And they do it again and again. (Or at least they did it, again and again, in and before 2015.)
Second, in their lawsuits and litigation tactics, Malibu Media has an air about it almost like it were a government agency, like law enforcement. They have filed so many lawsuits (thousands) and pressured so many defendants into paying settlements — without the benefit of a trial — that their corporate Plaintiff ego grew to — dare I say — narcissistic proportions.
Rule 11, Federal Rules of Civil Procedure, requires litigants to ensure that their “factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” The “evidentiary support,” however, we have seen in these cases — packet captures (PCAPs) of mere seconds of download activity from single Internet accounts, with remaining evidence purged or unavailable — is hardly sufficient “evidentiary support” to tie a single individual to ultimate liability based on anything more than speculation.
That was in 2015.
So . . . why did Malibu Media stop filing lawsuits in Florida?
Again, the key to Malibu Media’s logic was hasty generalizations — and trial by computer. They would request the complete hard drives — all hard drives, actually, even thumb drives — owned by Defendants, then have their proposed expert witness, Patrick Paige, search them. If Mr. Paige found evidence of the movies on the computers, it was a slam dunk, Malibu Media thought. But if he did not find evidence of movies, there was always something.
The funny thing about hard drives is that data is always being rewritten. Whenever you add a file, a document, a photo, you’re overwriting data. Whenever you delete a duplicate or unnecessary document, you’re creating a mark of deletion. And Malibu Media’s goal was to search for evidence of deletion. If it saw evidence of deletion, it cried spoliation! “Spoliation” is destruction of evidence: highly improper and serious stuff.
Of course, simple, everyday deletions are not spoliation. No, that would be a hasty generalization. Hence, the witch hunt.
The problem for Malibu Media that we raised was that, simply, discovery of entire hard drives — database collections, as they’re called — is grossly overbroad and not allowed by the Federal Rules of Civil Procedure. At least not without a prior showing of spoliation.
As the Eleventh Circuit explained in In re. Ford Motor Company:
Under Rule 34(a), parties may request the other party to “produce and permit the party making the request . . . to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form).” Fed. R.Civ.P. 34(a). But Rule 34(a) does not grant unrestricted, direct access to a respondent’s database compilations. Instead, Rule 34(a) allows a requesting party to inspect and to copy the product — whether it be a document, disk, or other device — resulting from the respondent’s 1317*1317 translation of the data into a reasonably usable form.
345 F. 3d 1315 (11th Cir. 2003) (emphasis added).
In other words, plaintiffs cannot ask for the whole hard drive. They need to ask for relevant documents. And if a defendant does not have the documents (here, copies or partial copies of Malibu Media’s movies), they would have no relevant documents to produce.
Here, Malibu Media was searching for spoliation before it had any evidence of spoliation. It was fishing.
And then . . . how does Malibu Media prove its case against someone who did not do the downloads and has no copies of Malibu Media’s movies? Someone who was not the only user, but one of many, at the subject IP address? (Remember, an IP address is not a person.)
Circumstantial evidence and speculation. That’s all it has (or, had) to rely on.
And so, the lawsuits filed by Malibu Media in Florida on October 1, 2015, were the very last it ever filed.
Now, it sticks to districts outside the 11th Circuit, those are not bound by the ruling in In re. Ford Motor Company.
From 2012 through 2015, we represented dozens of defendants, in cases filed by Malibu Media. Some we represented prior to full-blown litigation, while some others we defended vigorously. And, in litigating these cases, we formed a lot of memories . . .