BIt is nice to see when a house of cards starts to shake.  It reminds me that with a gentle blow, all the cards can come tumbling down.  SJD shares that Malibu Media California Cases (X-Art) are about to experience some wind.

Kudos to Sophisticated Jane Doe at Fight Copyright Trolls for breaking this story.  Her article, entitled “Judge Alsup threatens to bar further Malibu Media cases in his district until the accuracy of the geolocation technology is fully vetted” is a worthwhile read. This is true EVEN for those who do not delve into the details of what happens in Malibu Media California cases versus Malibu Media Texas cases filed by Andrew Kumar and Michael Lowenberg.

California Judge Alsup Order Asks To Scrutinize Maxmind Geolocation Services.

Malibu Media, LLC has filed 6,000+ lawsuits across the US relying on a Maxmind geolocation database which they use to determine which infringers to sue (based on their city and/or zip code), and in which federal court to sue them.

The zip code data becomes relevant internally because Malibu Media targets accused defendants who live in ‘wealthy’ neighborhoods and ignores defendants who they believe do not have the ‘assets’ to pay them the ransom they demand from each accused downloader.

Taken from Maxmind’s site, they even offer services which provide their customers the estimated average income of each infringer so that Malibu Media can focus their efforts on only the ‘highest income infringers.’

More relevant to the Malibu Media California cases and SJD’s article, geolocation data is important because filing a lawsuit against a defendant who does not live in that district deprives the court of jurisdiction to hear the case against that defendant.  This is called ‘personal jurisdiction.’

But, in the California Malibu Media Cases, this “Maxmind” service might cause the downfall of all of the Malibu Media California cases.  Why?  Because Judge Alsup is about to figure out exactly how the geolocation services work.

You could bet that if they fall in California, I will be sharing what made those cards fall with the judges in Texas, NJ, NY, (and since I follow Malibu plaintiff attorney Jackie James around with her Malibu Media cases), CT too.  Why?  Because California Judge Alsup’s rulings are binding only in the California federal courts.  However, in all other federal courts, they are still PERSUASIVE.

If I had one wish, it would be for Judge Alsup to also review the Guardaley Black Box.

Not to look a gifthorse in the mouth, but when I wrote this article initially, I thought that Judge Alsup was going to investigate Guardaley’s black box.  Here is why:

“Because we download fragments from you, you must have the entire file.”

The Guardaley bittorrent tracking system dips in to various bittorrent swarms and connects with computers to download tiny bittorrent file fragments with the logic that if the download from a particular internet user’s computer was successful, then [LOGIC JUMP] that user must have the entire file downloaded on his computer.

This identical black box issue applies to the other MOVIE LAWSUITS too.

It should be noted that without getting into conspiracy theories about how the MPAA / RIAA colluded with Malibu Media, LLC and the other pornography companies to break copyright, other mainstream movie cases potentially ‘have egg on their faces’ too with Judge Alsup’s order.

Why?  Because whether we are dealing with a Malibu Media, LLC case, a ME2 Productions case, a Cook Productions case, a I.T. Productions case, or even a WWE Studios Finance Corp. movie… you are still dealing with RIGHTSENFORCEMENT, Carl Crowell, Anti-Piracy Management Company (APMC), and ultimately… Guardaley, the German company behind each of the various US-based shell companies selling rights to use their black box bittorrent tracking software.

I could also bet that these same companies are likely using the same “Maxmind” geolocation services as well (since they cut-and-paste their boilerplate strategies, whether applying their system to internet users accused of downloading pornography, e-books, or movie content).

How much of the infringing file must you have for Malibu Media to prove copyright infringement?

If Judge Alsup continues to investigate Malibu Media’s cases beyond the Maxmind geolocation services, I encourage him to also investigate the Guardaley black box.

QUESTIONS TO ASK:  Judge Alsup might ask how the system chooses to connect to the computers, and whether it randomly selects one “block” (a file fragment; often 16 KB in size) hundreds of blocks, or millions of blocks (Malibu Media bittorrent files (“.torrent” files) usually comprise a siterip which contains multiple movie files contained in one bittorrent “.torrent” file.  Each movie file can be hundreds of MEGABYTES large, and the total bittorrent “.torrent” file can potentially be MULTIPLE GIGABYTES large).

Simplifying the numbers:  Assuming a .torrent file contains 1GB of movie files (1GB = 1,000 MB = 1,000,000 KB), and that 1GB torrent is broken down into 16 KB blocks (file fragments), then the Malibu Media X-Art Movie bittorrent will be broken down into 62,500 blocks.  If Malibu Media’s Guardaley black box shows that they have successfully downloaded 100 separate 16KB blocks, that means that they have established only that accused infringer has downloaded 1.6 MB of a 1 GB torrent file.  At 200 KB/s (not going into the minute differences between a Kilobyte and a Kilobit), that means that the downloader participated in the bittorrent swarm downloading Malibu Media’s Siterip content for a total of 8 seconds, and that they have only 1.6 MB of Malibu’s X-Art movie (1.6 MB of 1 GB = .0000016% of Malibu’s Siterip, hardly enough to prove that it was “more likely than not” that the accused John Doe Defendant committed copyright infringement.

If Malibu Media’s Guardaley black box is selecting and connecting to only a small number of blocks (a small set of file fragments, noting that there are potentially tens of thousands of blocks needed to complete a download) this does not prove that the accused defendant downloaded anything more than the number blocks the Guardaley black box software tracked the user as possessing on his or her computer.

Malibu Media California Cases and the “Preponderance of Evidence Standard”

Malibu Media, LLC will counter that the evidence they need to prove is “more likely than not,” namely, that it is more likely than not that the accused downloader downloaded enough of the infringing file to constitute copyright infringement.  This is also called the “preponderance of evidence” standard of proof in legal speak.  Thus, Malibu Media, LLC will not need to prove that the entire file was downloaded; only that ‘it was more likely than not’ that the file was downloaded.

However, for the Malibu Media California cases, I am hoping that the plaintiff attorney will need to prove to Judge Alsup that this is the case, and to do this, they will have to open their black box software up to Daubert-level scrutiny.  If they fail in this task, Malibu Media California cases will end and the next ‘wave’ of cases will need to be spread across other federal courts, sans California.  Looking into the geolocation technologies (which Malibu Media, LLC claims is 100% accurate), however, is a good start.

He just used the words…”HEARSAY.”

Of interest to me is something that Fight Copyright Troll’s article didn’t talk about — namely, that UNLESS THE MAXMIND GEOLOCATION SERVICES CAN BE VETTED, the printouts and data Maxmind purports to share about an accused John Doe Defendant’s location is nothing other than HEARSAY.  (See Judge Alsup’s Order, p.2, line 12).

The declaration parroted several hearsay statements about the accuracy of Maxmind from its website.

To the copyright troll attorneys who read my blog to learn what we are thinking about as far as strategy: While I am not making a big deal to flush out the hearsay issue, I just wanted to take a moment to point out that those same words just came out of Judge Alsup’s mouth.  Namely, that the so-called geolocation evidence that the Maxmind services provide might not even be admissible at trial because the it is considered HEARSAY, and likely not admissible under the hearsay exceptions.

Since these words came out of his mouth, I bet it is a good idea to have a good explanation prepared why the data provided by the Maxmind geolocation service should not be considered hearsay and thus inadmissible as you are trying to reach that “more likely than not” evidence standard.