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Malibu Media, LLC v. Harrison

United States District Court, S.D. Indiana, Indianapolis Division

June 8, 2015



WILLIAM T. LAWRENCE, District Judge.

Before the Court are several filings: the Plaintiff's Motion for Summary Judgment (Dkt. No. 276); the Plaintiff's Motion for Leave to File Surreply to the Defendant's Surreply (Dkt. No. 312); and the Plaintiff's Objection to Magistrate Judge Dinsmore's Report and Recommendation on the Plaintiff's Motion for Sanctions (Dkt. No. 303). The Court resolves them as set forth below.


Plaintiff Malibu Media, LLC, is a California-based adult-film company. Malibu Media has copyrighted the content it sells on its subscription-based website, It alleges in this suit that Defendant Michael Harrison infringed six of its copyrights using BitTorrent, "one of the most common peer-to-peer file sharing protocols[.]" Fourth Am. Compl. ¶ 13, Dkt. No. 165. BitTorrent is popular because "rather than downloading a file from a single source computer (one computer directly connected to another), the BitTorrent protocol allows users to join a swarm' of host computers to download and upload from each other simultaneously (one computer connected to numerous computers)." Id. ¶ 14. Malibu Media alleges that Harrison "installed a BitTorrent Client onto his computer" and then "went to a torrent site to upload and download [Malibu Media's] copyrighted Work, " specifically, six adult films (or portions thereof). Id. ¶¶ 15, 27.

After realizing that its copyrights were being infringed, Malibu Media contracted with IPP, International UG ("IPP"), a German company that provides forensic investigation services, to identify the IP addresses of those using BitTorrent to copy its movies. IPP "used forensic software named INTERNATIONAL IPTRACKER v1.2.1 and related technology[, ] enabling the scanning of peer-to-peer networks for the presence of infringing transactions." Id. ¶ 36. It then "extracted the resulting data emanating from the investigation, reviewed the evidence logs, and isolated the transactions and the IP addresses associated therewith for the files identified by the hash values[.]" Id. ¶ 37. IPP's investigation revealed that six times the IP address "transmit[ted] a full copy, or a portion thereof, of a digital media file" that was copyrighted. Id. ¶ 39. Comcast Cable Communications, LLP, later identified Harrison as the subscriber assigned to IP address

After the lawsuit was filed, in January 2013, Harrison's hard drive on his custom-built gaming computer crashed. He took the hard drive to GGI Recycling, LLC, an electronics recycling company, to have it melted. He then replaced the gaming computer's hard drive with what has been called the "Sammy" hard drive. In addition to his gaming computer, at the time the alleged infringement occurred, Harrison also had an Acer laptop. During discovery, the Acer laptop and the Sammy hard drive were examined by forensic experts; however, experts were unable to examine the gaming computer's old hard drive because it was melted. The Acer laptop revealed extensive BitTorrent use; however, it did not contain any of Malibu Media's movies or files. The "Sammy" hard drive did not reveal any evidence of BitTorrent use.

Malibu Media's Fourth Amended Complaint (Dkt. No. 165) asserts one claim against Harrison for direct copyright infringement in violation of 17 U.S.C. § 106 and 501. It alleges that Harrison used the BitTorrent file sharing protocol to unlawfully download and distribute the six movies.


Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." In ruling on a motion for summary judgment, the admissible evidence presented by the non-moving party must be believed and all reasonable inferences must be drawn in the non-movant's favor. Hemsworth v., Inc., 476 F.3d 487, 490 (7th Cir. 2007); Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) ("We view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor."). However, "[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial." Id. Finally, the non-moving party bears the burden of specifically identifying the relevant evidence of record, and "the court is not required to scour the record in search of evidence to defeat a motion for summary judgment." Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001).

Malibu Media moves for summary judgment on its claim for copyright infringement, arguing that "[t]his case is replete with evidence-all pointing to [Harrison]." Pl.'s Br. at 12, Dkt. No. 276. In order to prove copyright infringement, Malibu Media must submit evidence of: "(1) ownership of a valid copyright[;] and (2) copying of constituent elements of the work that are original.'" Janky v. Lake Cnty. Convention & Visitors Bureau, 576 F.3d 356, 361 (7th Cir. 2009) (quoting Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991)). "An individual copies' another's work for purposes of copyright law if he plays it publicly or distributes copies without the copyright owner's authorization." Janky, 576 F.3d at 361 (citing Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975)).

The Court finds that Malibu Media has produced enough evidence from which a reasonable jury could find in its favor. First, it has produced "printouts from the United States Copyright Office's online public catalog demonstrating that each of the works at issue has been registered and was assigned a registration number by the Copyright Office." Pl.'s Reply at 11, Dkt. No. 304; see also Dkt. No. 276-2 at 16-21. Moreover, Colette Pelissier Field, Co-Managing Member of Malibu Media, has submitted a declaration stating that "Veronica Wet Orgasm, Introducing Diana, Pretty Back Door Baby, LA Love, Romantic Memories, and Sneak N Peek" are all copyrighted and that "Malibu Media is the registered owner" of such copyrights. Dkt. No. 276-2 at 7. While Harrison correctly notes that Malibu Media "has not produced certificates of registration for the six movies, " Def.'s Resp. at 19, Dkt. No. 296, the Court finds that from the evidence Malibu Media has presented, a reasonable jury could find that valid registrations exist for the six movies. See, e.g., Johnson v. Cypress Hill, 619 F.Supp.2d 537, 543 (N.D. Ill. 2008) ("By this submission [a summary of the registration obtained from the United States Copyright Office's website], coupled with [a plaintiff's] testimony regarding the 2003 registration, we find that [the plaintiffs] have presented enough evidence from which a reasonable jury could find that a valid registration exists.").[1]

Malibu Media has also produced evidence from which a reasonable jury could conclude that Harrison copied the six movies at issue using BitTorrent. IPP identified IP address as transmitting Malibu Media's copyrighted movies, and Comcast identified Harrison as the owner of that IP address. At the time the alleged infringement occurred, only Harrison and a friend-who did not have BitTorrent capabilities on his own computer-had access to his password-protected, encrypted internet, see Pl.'s Br. ¶¶ 10-14; moreover, Harrison has no evidence suggesting that his Internet was hacked by an outsider. See id. ¶ 15. And, finally, Harrison is an admitted "gratuitous" BitTorrent user, see id. ¶16-20. Indeed, multiple BitTorrent files were on Harrison's Acer laptop. See id. ¶¶ 21-22.[2]

While many of Harrison's arguments in opposition to Malibu Media's motion for summary judgment are wholly unconvincing and essentially based on pure speculation, he does create a genuine issue of material fact-that can only be resolved by a jury-as to whether he copied the six movies at issue using BitTorrent. Harrison explicitly denies that he copied the movies at issue using his IP address or his computers. See Def.'s Resp. at 9 ("Defendant did not use his IP address or computers to upload or download the six movies at issue on September 1, 2012, September 9, 2012, and September 30, 2012."). He asserts the following:

57. Defendant's ACER laptop computer hard drive did not contain any of Plaintiff's movies and was never used to download or upload Plaintiff's ...

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