BitTorrent Defendant’s Attack Of Experts Denied

In BitTorrent litigation against pirates the first step is to identify the subscriber or party behind the Internet protocol address used to download a movie. For a while it was common to file a Motion to Quash and for pirates to try and remain hidden. This tactic has fallen from favor as it is rarely successful and usually just runs up legal bills. But in a recent California case someone decided to spend some real money, hire several experts, and try again.

In the case of Malibu Media v. Doe, a defendant went all out to fight the subpoena and argued, “plaintiff should not have been permitted to issue the subpoena in the first place, because plaintiff’s factual showing in support of the requested expedited discovery is lacking and inaccurate.”  The defendant argued (1) the software and methods used by plaintiff’s investigators to detect infringement were inadequate; (2) the method used by plaintiff’s investigators to verify infringement lacked integrity; and (3) plaintiff failed to protect its works according to industry media distribution standards.

Defendant submitted experts reports attacking the reliability of pirate detection software from Dr. Kal Toth, and a “Bittorrent media distribution expert,” Bradley Witteman. But after review, the court found them un-persuasive and ordered the discovery.

The defendant also raised the issue of Malibu Media using a foreign investigator, to which the court responded:

Defendant further suggests that Mr. Fieser is not licensed as a private investigator in California, and that the court therefore should not accept his testimony. That argument borders on the frivolous. Individuals provide evidence in court every day without necessarily being licensed as private investigators. Significantly, defendant cites no legal authority for the proposition that Mr. Fieser, a German resident, required a California private investigator license to perform the type of work he did for plaintiff, or to provide evidence regarding such work in court.

In sum, the Court characterized much of the defendant’s arguments as “rough” and “speculative” and ordered the disclosure of the defendant’s identity, confirming the long standing tradition that a Motion to Quash results in little more than extra legal fees.

The case is Malibu Media, LLC v. Doe, 16-cv-01733-JAM-KJN

Relevant Document: 16-cv-1733 22 Order

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