Florida Judge Questions Malibu Media's Geolocation Technology

LOS ANGELES—While Prenda Law was collapsing under the weight of its own hubris, the other company filing end-user copyright infringement lawsuits throughout the country has upped its game, reportedly bringing as many as 1,000 cases in recent months targeting IP addresses they claim can identify actual people who have stolen X-Art content. In just Florida, Malibu's lawyers filed 16 lawsuits on March 18 alone, an indication of the pace at which the company is filing lawsuits. Clearly encouraged, Malibu has prevailed in any number of courts, but as Ars Technica reported today, not all judges are taking their claims at face value. "Last week," reported the site, "a federal judge in Florida threw one of those Malibu lawsuits out of court with some remarkable legal reasoning. Just two months after Malibu filed its case, U.S. District Judge Ursula Ungaro tossed the lawsuit Malibu filed against the user at IP address 174.61.81.171. Ungaro said that there's no proof Malibu is even in the right venue, since '[t]here is nothing that links the IP address location to the identity of the person actually downloading and viewing Plaintiff's videos and establishing whether that person lives in this district.'" The ruling is considered "remarkable" because IP addresses are used in every such case, and undermining their use in court would by definition signal a death knell for end-user copyright litigation. In the Malibu Media case in Southern Florida, Malibu lawyer Michael Keith Lipscomb of Lipscomb, Eisenberg & Baker, PL., replied to a March 5 Order to Show Cause by the judge asking them to explain the process whereby their technology could ascertain with such certainty the actual infringer. "Responding to this order to show cause," reported TorrentFreak, "Malibu Media gave an overview of their data gathering techniques. Among other things they explained that geo-location software was used to pinpoint the right location, and how they made sure that it was a residential address, and not a public hotspot. Judge Ungaro welcomed the additional details, but saw nothing that actually proves that the account holder is the person who downloaded the file." In an Administrative Order filed March 20, Judge Ungaro wrote, in part, "Plaintiff has shown that the geolocation software can provide a location for an infringing IP address; however, Plaintiff has not shown how this geolocation software can establish the identity of the Defendant. “There is nothing that links the IP address location to the identity of the person actually downloading and viewing Plaintiff’s videos, and establishing whether that person lives in this district,” she adds. “Even if this IP address is located within a residence," she continued, "the geolocation software cannot identify who has access to that residence’s computer and who would actually be using it to infringe Plaintiff’s copyright." Finding that the plaintiff had "not established good cause for the Court to reasonably rely on Plaintiff’s usage of geolocation to establish the identity of the Defendant," and had also "not established good cause as to why this action should not be dismissed for improper venue," the judge dismissed the case for improper venue, and has asked Malibu to show cause in two other cases she is adjudicating. Clearly not on the side of Malibu Media, TorrentFreak's Ernesto concluded, "While not all judges may come to the same conclusion, the order definitely limits the options for copyright holders in the Southern District of Florida. Together with several similar rulings on the insufficiency of IP-address evidence, accused downloaders have yet more ammunition to fight back." Of similar mind, Ars Technica's Joe Mullin said of Judge Ungaro's ruling, "If other judges adopt such reasoning, it could put a major dent in the copyright trolling business model."