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Case: 2:14-cv-00821-TPK Doc #: 79 Filed: 02/29/16 Page: 1 of 9 PAGEID #: 1124





Case No.: 2:14-cv-00821-ALM-TPK


After almost a year, Malibus quixotic discovery odyssey is over. In that time, Malibu has not
produced any admissible evidence of copying. Even construed in the light most favorable to Malibu,
what facts it has proffered are premised upon speculation and conjecture. R.C. Olmstead, Inc. v. CU
Interface, LLC, 606 F.3d 262, 274 (6th Cir. 2010); Niemi v. Am. Axle Mfg. & Holding, Inc., No. 05cv-74210, 2008 U.S. Dist. LEXIS 25995, *15 (E.D. Mich. Mar. 31, 2008) (a plaintiffs speculation is
insufficient to raise a genuine issue of material fact). In short, Malibu has established no genuine
issues of material fact that Defendant, David Ricupero, the subscriber to whom the IP address was
assigned at the time, infringed Malibus works. Id. Accordingly, summary judgment should be
entered with prejudice in favor of Defendant.1
Malibu initiated this action on July 12, 2014 against a Doe Defendant identified only by an IP
address. See Doc. 1. To identify the alleged infringer, Malibu requested and was granted permission
from the Court to serve limited, immediate discovery on the Doe Defendants ISP prior to the Rule
26(f) conference. Doc. 2. Thereafter, once Malibu received the identifying information from the ISP,
it filed the operative Amended Complaint on September 22, 2014 naming Ricupero. See Doc. 5.
The complaint in this case, alleges that Malibu owns copyrights to twenty-six specifically
identified adult motion pictures. Id. 5 2; Doc. 5-2. According to Malibu, these films were
downloaded, copied and distributed via a unique Internet Protocol address using the file distribution

This motion for summary judgment is timely. See Doc. 73. More so, Malibu has been on notice since November
12, 2015 of Ricuperos intent to file absent its compliance with discovery. See Ex. A.

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network known as BitTorrent, without obtaining Malibus authorization to do so. See Doc. 5 10,
33. Malibu asserts claims for copyright infringement under 17 U.S.C. 106 and 501 and seeks
statutory damages. Id. 34-35.
At all times, Ricupero has denied infringing Malibus works. See Doc. 7 32; Ricupero
Deposition at 76:5-9 (filed under seal on Feb. 23, 2016 by Malibu as Ex. A). The only evidence
Malibu claims it possesses of the alleged infringements is a single PCAP for each of the twenty-six
works identified in the complaint. See Doc. 78-7; Doc. 78-11. The only evidence Malibu has
implicating Ricupero is the IP address his account was assigned at the time. See Doc. 5 24.
On July 14, 2015, the Court issued a protective order that examination of Ricuperos devices
limited to Malibu Medias works. See Doc. 67 p. 19.
On November 4, 2015, Malibus expert, Patrick Paige, produced his first expert report
(hereinafter Nov. Report). Plaintiffs Nov. Expert Report (filed under seal on Feb. 23, 2016 by
Malibu as Ex. H). The Nov. Report contended that five devices: 1) a Dropbox account; 2) a Google
Drive account; 3) a Dell PC; 4) an iPad; and 5) a laptop identified as Maxs MacBook Pro were not
produced. Id. 37-39.
On November 5, 2015, undersigned contacted Malibus counsel, Emilie Kennedy, to notify
her that:
1. The contents of his Google Drive had been produced on August 18, 2015. Nov. 5 email [Ex.
2. He did own an iPad. Id. As the Nov. Report noted, it was last connected to Defendants
laptop on Nov. 27, 2013. It had sat in a closet forgotten since. He produced the iPad for
examination and granted an appropriate extension to do so. See Doc. 73.
3. He did have a Dropbox account, but hadnt used it in the last two years. He produced the
Dropbox for examination and granted an appropriate extension to do so. See Ex. A; Doc. 73.
4. He did not own either a Dell or Maxs MacBook Pro. See Ex. A.
On December 23, 2015, Malibu, after examining the contents of Ricuperos Dropbox and
iPad, produced a second report (hereinafter Dec. Report). Plaintiffs Dec. Expert Report (filed
under seal on Feb. 23, 2016 by Malibu as Ex. B). The Dec. Report was identical to the Nov. Report
save for the removal of the claims Ricupero had not produced his Dropbox or Google Drive
accounts. Neither Report references having found 1) any of the works cited in Malibus complaint on
any of Ricuperos devices; 2) any torrent files relating to the download or distribution of Malibu
works on any of Ricuperos devices; 3) any evidence of spoliation on on any of Ricuperos devices

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nor 4) any evidence Vuze, the BitTorrent client Malibu identified as being used to infringed its works
as being on any of Ricupero devices [Doc. 78-5]. See Declaration of Delvan Neville, 6 [Ex. B];
Expert Report of Delvan Neville, p. 10 [Ex. C].
On a summary judgment motion, the movant must show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P.
56(c). A factual dispute is genuine if it turns on "evidence on which the jury could reasonably find
for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). A material fact is one
that would have [the] effect of establishing or refuting one of [the] essential elements of a cause of
action or defense asserted by the parties, and would necessarily affect [the] application of [an]
appropriate principle of law to the rights and obligations of the parties. Kendall v. Hoover Co., 751
F.2d 171, 174 (6th Cir. 1984). [T]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact. Anderson, 477 U.S. 242, 247-48
Where the movant is the defendant, or the party that does not have the burden of proof on the
underlying claim, it has no obligation to produce evidence negating its opponent's case. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); The movant need only point to the lack of evidence
supporting the non-movant's claim. Id. See also McDonald v. Petree, 409 F.3d 724, 727 (6th Cir.
2005); Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 566 (6th Cir. 2001) ([t]he moving party
need not support its motion with evidence disproving the non-moving partys claim, but need only
show that there is an absence of evidence to support the non-moving partys case.).
Once the movant meets its burden, and adequate time for discovery has been provided,
summary judgment is appropriate if the opposing party fails to make a showing sufficient to establish
the existence of an element essential to that partys case and on which that party will bear the burden
of proof at trial. Celotex, 477 U.S. at 322. To preclude summary judgment, the non-movant is under
an affirmative duty to go beyond the pleadings and come forward with specific facts to demonstrate
that there is a genuine issue for trial. Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir.
2002). The mere existence of a scintilla of evidence in support of the [non-moving partys] position
will be insufficient; there must be evidence on which the jury could reasonably find for the [non3

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moving party]. Shah v. Racetrac Petroleum Co., 338 F.3d 557, 566 (6th Cir. 2003) (quoting
Anderson, 477 U.S. at 252). If the evidence offered by the non-movant is merely colorable, or not
significantly probative, or not enough to lead a fair-minded jury to find for the non-movant, the
motion for summary judgment should be granted. Anderson, 477 U.S. at 249-52.
In most civil cases involving summary judgment, the court must decide whether reasonable
jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a
verdict. Id. at 252. However, if the non-movant faces a heightened burden of proof, such as clear
and convincing evidence, it must show that it can produce evidence which, if believed, will meet the
higher standard. March v. Levine, 249 F.3d 462, 471 (6th Cir. 2001). In the context of copyright
infringement, the Sixth Circuit has established that a greater particularity in pleading is required.
Natl Bus. Dev. Servs., Inc. v. Am. Credit. Educ. And Consulting, Inc., 299 F. Appx 509, 512 (6th Cir.
2008). This heightened standard is necessary because copyright cases are conducive to abusive
litigation. Id.
There are two essential questions at the heart of any copyright infringement action: whether
the plaintiff owned the copyrighted work and whether the defendant copied it. Kohus v. Mariol, 328
F.3d 848, 853 (6th Cir. 2003); Feist Publns, Inv. v. Rural Te. Serv. Co., 499 U.S. 340, 361 (1991).
A. Plaintiffs ownership of the copyrighted works is not disputed.
Where, as here, there is no dispute as to whether the plaintiff owns the copyrighted works at
issue, to succeed on a copyright infringement action, Malibu must sufficiently show that Ricupero
copied the works. Jones v. Blige, 558 F.3d 485, 490 (6th Cir. 2009).
B. No direct evidence of infringement.
Despite having over nine months to conduct discovery and analyze Ricuperos hard drive,
Malibu has failed to demonstrate that there is any genuine question of material fact about whether
Ricupero infringed its works. Mazer v. Stein, 347 U.S. 201, 218 (1954) (absent copying, there can
be no infringement).
1. Malibu Media filed suit premised on evidence insufficient to identify the infringer.
Malibus proof that Ricupero copied its works relies on the evidence it tenders to show that a
computer linked to Ricuperos IP address distributed one or more bits of each of the works. Malibu

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argues that its investigator established a direct TCP/IP connection with the Defendants IP address.
See Doc. 5 at 17.
However, Malibu is well aware that an IP address alone is not enough to impose liability on
Doe. Malibu Media v. John Doe, No. 13-cv-06312, 2016 U.S. Dist. LEXIS 14798, *19 (N.D. Ill.
Feb. 2, 2016). Evidence of a link between an IP address and Malibus movies may be enough to
justify discovery, but it is not enough to prove liability. Id. [T]hese already legitimate concerns are
exacerbated by the growingly unrealistic expectation that the registered subscriber of an IP address is
the same person alleged to have engaged in the allegedly infringing conduct. In re Malibu Media
Adult Film Copyright Infringement Cases, 2015 U.S. Dist. LEXIS 74125, *9-11 (E.D.N.Y. June 8,
2015). Malibu Media, LLC v. Doe, No. 13-cv-536; No. 13-cv-544; No. 13-cv-779, 2013 U.S. Dist.
LEXIS 176701, *7-12 (E.D. Wis. Dec. 12, 2013) (An IP address identifies, at most, an internet
subscription that can be used by multiple people.); Malibu Media LLC v. John Does 1-10, No. 12cv-01642, slip op. at 4 (C.D. Cal. Oct. 10, 2012) (An IP address alone may yield subscriber
information, but that may only lead to the person paying for the Internet service and not necessarily
the actual infringer.); Malibu Media, LLC v. Reynolds, No. 12-cv-6672, 2013 U.S. Dist. LEXIS
31228, *48 (N.D. Ill. Mar. 7, 2013) (Wholesale litigation of these claims is inappropriate, at least
with respect to a vast majority (if not all) of Defendants.); Malibu Media v. Doe, No. 14-cv-20213,
ECF #10 (S.D. Fla. March 20, 2014) (Even if this IP address is located within a residence, the
geolocation software cannot identify who has access to that residences computer and who would
actually be using it to infringe Plaintiffs copyright. The Court finds that Plaintiff has not established
good cause[.]).
The Court questions whether these allegations are sufficient to allege copyright
infringement stemming from the use of peer-to-peer file sharing systems where the
Defendant-corporation is connected to the infringement solely based on its IP
address. It may be possible that Defendant is the alleged infringer that subscribed to
this IP address, but plausibility is still the touchstone of Iqbal and Twombly.
Malibu Media, LLC v. Tsanko, No. 12-cv-3899, 2013 U.S. Dist. LEXIS 169186, *10 (D.N.J. Nov. 30,
No one has forced Malibu to litigate against an unknown party. Rather, Malibu admittedly
files suit without knowing the identity of the proper party to begin with. In other words, Ricupero
was sued not on the basis of his allegedly infringing activity, but due to his status as subscriber of the

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IP address utilized. Malibu fully intended to sue Ricupero, it did so, and he turned out to not be the
2. Malibu Media has produced no evidence of infringement by Mr. Ricupero.
Using Ricuperos IP address as a lilypad, Malibu leapfrogs to the conclusion of his guilt. See
Doc. 5 at 18-19 (claiming that its investigator downloaded from Defendant one or more bits of
each of the digital movie files proving that Defendant downloaded, copied, and distributed a
complete copy of Plaintiffs movies without authorization.).
Assuming for the sake of argument that Malibu could show Ricupero copied and distributed
those pieces or bits, Malibu fails to present any evidence that its films are or were on Ricuperos
computer or storage devices; that Ricupero ever copied or distributed any of its films2; or any
evidence that BitTorrent software used to infringe, Vuze, was ever installed on Ricuperos computer.
Nor does Malibu make any effort to prove that those pieces meet the standard for copyright
Failure to provide sufficient evidence on summary judgment for the court to
determine precisely what elements were protected will result in the granting of a
motion for summary judgment by the defendant on the grounds that no triable issue
of fact exists as to whether the defendant infringed the copyright by copying such
protected elements.
R.C. Olmstead, 606 F.3d at 275-76
In BitTorrent, pieces are typically downloaded non-sequentially and are rearranged into the
correct order by the BitTorrent client/software, which monitors which pieces it needs, and which
pieces it has and can upload to other peers. Pieces are of the same size throughout a single download
(for example a 10MB file may be transmitted as ten 1MB pieces or as forty 256kB pieces).
The sole piece of evidence Malibu produced that an infringement occurred is a single PCAP
file for each of its films. See Doc. 78-7; Doc. 78-11. For Meet My Lover from Austria,3 the associated

Malibus Nov. and Dec. Reports attempts to cast two photo files found on Ricuperos laptop as evidence of
infringement. See e.g. Dec. Report 24-28. This argument is misguided for three distinct reasons. First, Malibu
filed suit over twenty-six specific movie files, not photos. Second, the photo files are of the type automatically
downloaded and displayed when viewing a website using them. See Ex. C p. 7 4. Third, Ricupero only went to the
site displaying them after he had been sued. Ricupero Deposition at 55:20-25 (filed under seal on February 23, 2016
by Malibu as Ex. A).

File hash: 9B2D98987560366CA5F58EC444BC76A49A868BA1. See Doc. 5-1.


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PCAP file produced by Malibu has a file size of 49kB 4 and demonstrates that Malibu only detected
Ricuperos public IP address [the address for his router] allegedly transferring one piece of a file as
opposed to a whole movie. See Ex. D. According to the .tar file produced by Plaintiff, which is a
copy of Meet My Lover from Austria (but not the same one as allegedly downloaded from Ricuperos
IP address), the full video file of Meet My Lover from Austria has a total file size of 450.3MB. See
Ex. E. Comparatively speaking, Malibus PCAP, which is Malibus only evidence it has produced for
that specific film, is 0.09% the size of the actual film.
Because the PCAP only includes data for one piece, it does not include enough data to
correspond to an entire video file. Ricupero asked for that information in discovery and Malibu
refused to produce it. See e.g. Docs. 78-3; 78-7; 78-11. For a torrent file to be viewable, it needs all
of the torrent pieces. See, e.g., Doc. 8 13 (After the infringer receives all of the bits of a digital
media file, the infringers BitTorrent client software reassembles the bits so that the file may be
opened and utilized.). Malibu cannot state with any certainty what the PCAP contains.
The first problem is how Plaintiff concluded that the Defendants actually downloaded
the entire copyrighted video, when all Plaintiff has as evidence is a snapshot
observation. (AC 23.) This snapshot allegedly shows that the Defendants were
downloading the copyrighted work-at least at that moment in time. But downloading
a large file like a video takes time; and depending on a users Internet-connection
speed, it may take a long time. In fact, it may take so long that the user may have
terminated the download. The user may have also terminated the download for other
reasons. To allege copyright infringement based on an IP snapshot is akin to alleging
theft based on a single surveillance camera shot: a photo of a child reaching for candy
from a display does not automatically mean he stole it. No Court would allow a
lawsuit to be filed based on that amount of evidence.
What is more, downloading data via the Bittorrent protocol is not like stealing candy.
Stealing a piece of a chocolate bar, however small, is still theft; but copying an
encrypted, unusable piece of a video file via the Bittorrent protocol may not be
copyright infringement. In the former case, some chocolate was taken; in the latter
case, an encrypted, unusable chunk of zeroes and ones. And as part of its prima facie
copyright claim, Plaintiff must show that Defendants copied the copyrighted work.
Feist Publns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S. Ct. 1282, 113 L.
Ed. 2d 358 (1991). If a download was not completed, Plaintiffs lawsuit may be
deemed frivolous.
Ingenuity 13 LLC v. Doe, No. 12-cv-8333, 2013 U.S. Dist. LEXIS 17693, *6-8 (C.D. Cal. February
7, 2013).

By way of example, at 32kB, the run-time of any one piece would be 241 milliseconds. At 64kB, 482 milliseconds
The average time it takes for a complete human blink is about 300 to 400 milliseconds. Such evidence is at best,
insufficient to support Malibus claim.

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Individual BitTorrent file pieces are worthless If it is the case that a Doe
Defendant logged onto the BitTorrent swarm, downloaded and then uploaded a single
piece to the IPP server, and then logged off, all he has done is transmit an unusable
fragment of the copyrighted work. [T]he Court notes that Malibus case is weak if
all it can prove is that the Doe Defendants transmitted only part of all the BitTorrent
pieces of the copyrighted work.
Malibu Media, LLC v. John Does 1-10, No. 12-cv-3623, 2012 U.S. Dist. LEXIS 89286, *3 (C.D. Cal.
June 27, 2012).
In the absence of evidence that Ricupero downloaded or distributed any copyrighted Malibu
worksa complete failure of proof concerning the essential element of its claimMalibu has failed
to show that there is a genuine issue for trial.
We find unsettling the gulf between Malibu Medias claims in this summary judgment
motion and the actual evidenceor, more to the point, the lack thereofits expert
unearthed after extensive searches. And we find merit in the skepticism with which other
district courts have greeted Malibu Medias discovery motions and subpoena requests in
similar matters.

Malibu Media v. Doe, No. 14-cv-1280, 2015 U.S. Dist. LEXIS 11691, *20 (E.D. Pa. Feb. 2, 2015)
Malibu has presented no admissible evidence of copyright infringementno admission of
guilt; no witness; no evidence Malibus works ever existed on any of Ricuperos computer devices;
no evidence the infringing BitTorrent client was on his devices; no evidence of spoliationnothing.
Instead, Malibus claim rests entirely upon the following fact, construed in a light most favorable to
Malibu: Ricupero was identified as the subscriber of the account to which the infringing IP address
was assigned.
For the reasons stated above, this Court should grant Defendants Motion for Summary
Judgment with Prejudice and Ricupero should be adjudged the prevailing party in this matter.5
Dated: February 29, 2016

Respectfully submitted,
/s/ Jason E. Sweet
Jason E. Sweet (BBO# 668596)

[T]he district court [did not] err by concluding that [Malibu] continued to press the theory as part of its overly
aggressive litigation tactics and not in any hope or expectation of actually surviving summary judgment. Given the
litigation history of [Malibu] in this and the companion cases, it was not an abuse of discretion for the district court
to award fees and costs against the company in the hope of motivating it to litigate in a more responsible, realistic
manner and to deter it from continuing to engage in questionable litigation tactics. Bridgeport Music, Inc. v. WB
Music Corp., 520 F.3d 588, 594 (6th Cir. 2008).

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32R Essex Street
Cambridge, MA 02139
Tel.: 617-250-8619
Fax: 617-250-8883
Pro Hac Vice Appearance
I hereby certify that on this February 29, 2016 I filed the foregoing document and my
supporting affidavit through the Courts CM/ECF system, which will serve the documents on all
counsel of record who have consented to electronic service.
/s/ Jason E. Sweet