1 In 5,000: How John Doe Defeated Porn Producer Malibu Media

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...