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A Chicago federal magistrate judge laid low a lawsuit by Malibu Media - a litigious online skin flick distributor - which alleged an internet pirate infringed its copyright by downloading two dozen movies without permission, saying Malibu failed to present computer forensics evidence backing its claim.

Magistrate Judge Geraldine Soat Brown handed down the decision Feb. 8 in U.S. District Court for Northern Illinois, dismissing Malibu Media's lawsuit against a resident in the district anonymously listed as John Doe in court records.

Malibu Media, of Los Angeles, has sold erotic movies through a subscription-based website since 2011. Since early 2012, the company has lodged thousands of lawsuits around the country, including more than 700 in U.S. District Court for Northern Illinois, of which about 100 remain pending. The suits alleged Malibu held copyrights on movies that internet users copied without paying Malibu or otherwise obtaining Malibu’s authorization, thus infringing its copyright.

The Feb. 8 dismissal is a rare defeat for Malibu, as a 2014 New Yorker magazine piece reported settlements were being paid in almost all the suits.

The dismissed suit was filed in September 2013 against a particular IP address user identified as John Doe, for allegedly downloading 24 Malibu-copyrighted movies between May 27 and July 30, 2013. Malibu characterized Doe as an alleged “persistent online infringer.”

Doe denied the allegation, saying many people had access to his home computer and an unknown device accessed his router during the time in question. Doe further disputed the means that Malibu said it used to prove he copied the movies. Malibu said its forensics investigators in Germany traced the improperly downloaded films to Doe’s IP address, but admitted the investigators did not find any of the films on Doe’s computers or his storage device.

Doe and Malibu filed cross-motions for summary judgment that were addressed by Magistrate Judge Brown.

Everywhere Brown looked, she said she found Malibu had a weak-to-non-existent case.

Brown noted that Malibu claimed Doe had deleted software from his computer, somehow hiding the deletion, to conceal his acquisition of the movies. However, Brown found this was mere speculation. Brown further ascertained that, even though Malibu allegedly uncovered a link to Doe’s IP address, the case still fell short.

“An IP address discloses the location of the internet line used for the transaction, but it does not identify the individual person who engaged in the transaction,” Brown observed.

Malibu also alleged Doe used BitTorrent software to download bits of a movie, then reassemble them into the entire movie, or most of the movie. However, Brown again found Malibu presented no evidence Doe had done this.

Brown went on to say that even if Doe had done so, Malibu did not indicate whether any movie segments Doe downloaded contained original expression, as copyright law only protects parts of a work that are original. In addition, Brown said the copied parts may be so insignificant as to not rise to the level of infringement.

“Is it the entire movie or is it some portion so small that it would not be identifiable as part of the movie? There is nothing in this record to answer that question,” Brown stated.

Brown agreed to strike most of the testimony from Malibu’s computer experts, because the experts were not properly disclosed to Doe within the required period. Malibu contended the experts were not experts, but lay witnesses, which released Malibu from the disclosure requirement. Brown, though, said they were obviously experts, as one of Malibu’s own attorneys discussed their expertise during a hearing. Malibu’s statements of fact in the case, derived from the testimony, were also barred.

“There is no evidence linking Doe or even his IP address to Malibu’s works,” Brown summed up.

Malibu Media was represented by Media Litigation Firm, of suburban Geneva, Ill.; Lipscomb & Brady, of Miami; and Nicoletti Law, of Birmingham, Mich.

John Doe was defended by The Russell Firm, of Chicago, and Shay Kepple & Phillips, of Peoria.

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Lipscomb Eisenberg & Baker Media Litigation Firm Nicoletti Law PLC Shay Phillips The Russell Firm

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