Malibu Media, LLC v. Doe

Filing 129

ORDER granting in part and denying in part 74 Motion for summary judgment; denying 98 Motion for summary judgment. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 4/8/2016. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MALIBU MEDIA, LLC,
Plaintiff,
v.

Case No. 8:14-cv-1580-T-33TBM

GREGORY WEAVER,
Defendant.
_____________________________/
ORDER
This matter comes before the Court in consideration of
Plaintiff Malibu Media’s Motion for Summary Judgment (Doc. #
74), filed on December 11, 2015. Also before the Court is
Defendant Gregory Weaver’s Motion for Summary Judgment (Doc.
# 98), filed on January 28, 2016. Malibu Media and Weaver
filed their responses on March 3, 2016, (Doc. # 121), and
December 31, 2015, (Doc. # 82), respectively. Malibu Media
filed its reply on January 14, 2016, (Doc. # 92), and Weaver
filed his reply on March 21, 2016, (Doc. # 126).
The Motions are now ripe for review. For the reasons
stated herein, the Court denies both Motions as they relate
to Count I of the Amended Complaint. Further, the Court grants
in part and denies in part Malibu Media’s Motion as it
concerns Weaver’s defenses and affirmative defenses.

1 

I.

Background
This lawsuit arises from alleged copyright infringement

of 31 adult films. (Doc. ## 10, 10-2). Malibu Media, doing
business as X-Art.com, produces adult films. (Doc. # 5-2 at
¶¶ 3, 6-8). Malibu Media publishes its films on its website,
X-Art.com, and charges its members a fee to access its video
library.

(Id.

at

¶¶

9,

12).

However,

Malibu

Media

has

encountered problems due to use of BitTorrent to download its
films online without paying Malibu Media’s membership fee.
(Id. at ¶¶ 16, 18-19). Malibu Media has “never authorized
anyone to put [its] works on a torrent website,” (Id. at ¶
29) (emphasis in original), but its works have still been
made available on such sites. (Id. at ¶ 28).
BitTorrent is a peer-to-peer file sharing system that
allows users to form swarms to download and upload pieces of
large files from each other. Malibu Media, LLC v. Reynolds,
No. 12 C 6672, 2013 WL 870618, at *1 (N.D. Ill. Mar. 7, 2013).
“In order to join a swarm and use the BitTorrent protocol, a
user must first download a BitTorrent Client Program, a
software program that serves as the user’s interface during
the process of uploading and downloading data.” Id. at *2.
There are two types of peers, i.e., people who join a
swarm. Id. Leechers are those peers acquiring a file, whereas

2 

seeds already have the file and act as a source from which
leechers may obtain the file. Id. “As a leecher acquires new
content, it simultaneously shares its content with other
leechers

in

the

torrent.”

Annemarie

Bridy,

Is

Online

Copyright Enforcement Scaleable?, 13 Vand. J. Ent. & Tech. L.
695, 701 (2011).
Furthermore,
Every torrent requires at least one seed. . . .
When a seed user decides to distribute a new file,
he or she uses the Client Program to create a
torrent descriptor file. The Client Program then
takes the target computer file, also known as the
Initial Seed, and divides it into segments called
pieces. Once the initial seed is divided into
pieces, the Client Program assigns each piece a
unique alphanumeric identifier (a hash identifier)
and records each piece’s hash identifier within the
torrent descriptor file.
Reynolds, 2013 WL 870618, at *2 (internal quotation marks and
citations omitted); see also (Doc. # 74-2 at ¶¶ 12-13)
(describing similar process).
The seed file is also assigned a unique identifying
number. In re BitTorrent Copyright Infringement Cases, Nos.
12-1188, 12-1189, 12-1258, 12-1259, 12-1260, 12-1280, 121281, 12-1341, 12-1342, 12-1398, 12-1493, 2013 WL 501443, at
*3 (C.D. Ill. Feb. 11, 2013); (Doc. # 74-2 at ¶ 13). “[T]he
hash

identifier

works

like

an

3 

electronic

fingerprint,

identifying the source and origin of the piece and verifying
that the piece is authentic, error-free, and uncorrupted.”
Reynolds, 2013 WL 870618, at *2; see also (Doc. # 74-2 at ¶
13).
Malibu Media previously explained that “[a] torrent file
does not contain the content to be distributed; it only
contains information about those files, such as their names,
sizes, folder structure, and cryptographic hash values for
verifying file integrity.” Malibu Media, LLC v. Sharp, 8:14cv-2138-T-33MAP (M.D. Fla. Oct. 19, 2015) (Doc. # 81 at 3)
(internal quotation marks and citation omitted). The actual
files that are downloaded, e.g., a movie, are not contained
in torrent files. Id. at 4.
Peers may download and upload pieces of the initial seed
after it has been uploaded to a torrent site. Reynolds, 2013
WL 870618, at *2. “[T]o download a file using the BitTorrent
protocol, a peer user must access a torrent site, which
indexes torrent files currently available for copying and
distribution.” Id. at *2; (Doc. # 74-4 at 32, Weaver Depo. at
125:8-22 (describing similar process for how Weaver would
obtain files through BitTorrent)). The peer searches for and
downloads the torrent file for the film he or she wants to
download. See Malibu Media, LLC v. Does 1-28, 295 F.R.D. 527,

4 

529 (M.D. Fla. 2012). “Once the torrent file is installed on
the peer’s computer, the client locates pieces of the film
supplied by other peers, [and] downloads them all . . . .”
Id.
A

“tracker,”

coordinates

file

which

is

a

distribution

permanent
within

internet
a

swarm.

server,
In

re

BitTorrent Copyright Infringement Cases, 2013 WL 501443, at
*3.
As a peer receives pieces of the seed file, that
peer automatically begins to upload those pieces to
other peers in the swarm. . . . A peer may still
avoid the burden of uploading to other peers by
disconnecting from the swarm after obtaining a
complete copy of the desired file.
Reynolds, 2013 WL 870618, at *2.
After a peer receives all pieces of the desired file,
the Client Program arranges the pieces into the correct order,
thereby producing an identical copy of the initial seed. Id.
at *3; see also In re BitTorrent Copyright Infringement Cases,
2013 WL 501443, at *3 (stating, “[u]sing the Hash identifiers,
BitTorrent

compares

th[e]

newly-assembled

movie

to

the

original movie to make certain that all the pieces have been
received and that all are correct and not corrupted. At that
point, the download is complete and the user has a completely
viewable copy of the movie”).

5 

Malibu Media employs an investigator to identify IP
addresses used to download files via BitTorrent. (Doc. # 742 at ¶¶ 6-7, 10-11). To begin the process, Malibu Media
provides its investigator with a list of its copyrighted
films. (Id. at ¶ 11). The investigator then searches for those
titles on well-known torrent websites. (Id. at ¶ 12). If the
investigator’s

search

yields

a

match,

it

downloads

the

torrent file and joins the swarm. (Id. at ¶ 13).
The
Client

to

investigator
connect

to

utilizes

a

swarms.

(Id.

proprietary
at

¶

14).

BitTorrent
Once

the

investigator joins a swarm, its data-collection system begins
to log file sharing transactions within the swarm. (Id.). The
investigator’s BitTorrent Client is, by design, incapable of
uploading or distributing files. (Id.).
Once in the swarm, the investigator connects to peers
through a connection that cannot be spoofed. (Id. at ¶ 15).
After the connection is made, the investigator downloads a
piece or pieces of the Malibu Media film in question from the
computer connected to the swarm. (Id.). Data sent through
this connection is delivered in packets. (Id. at ¶ 16). A
Packet Analyzer records these packets and saves it in a
computer file known as Packet Capture file (PCAP). (Id.). The
PCAP created shows the IP address distributing the piece, the

6 

IP address receiving the piece, the piece transmitted, the
transaction protocol, and the time of the transaction. (Id.
at ¶ 20).
Each transaction is also recorded on a MySQL server file.
(Id. at ¶ 21). Entries on the MySQL file correlate to a
specific PCAP file. (Id.). Furthermore, the PCAP and MySQL
files are saved onto write-once-read-many (WORM) drives. (Id.
at

¶

23).

manipulated

Data
or

on

a

WORM

altered,

drive

and

can

is

incapable

only

be

of

being

destroyed

by

destroying the drive itself. (Id.).
While

monitoring

BitTorrent

sites,

Malibu

Media’s

investigator recorded IP address 173.78.19.241 in swarms
downloading and uploading pieces of Malibu Media’s films.
(Id. at ¶¶ 14, 19-21, 31). As such, Malibu Media filed a onecount complaint against John Doe, the subscriber assigned IP
address 173.78.19.241, alleging copyright infringement for 31
films. (Doc. ## 1, 1-2). Malibu Media was granted leave to
serve a third-party subpoena prior to a Rule 26(f) conference
on Verizon Internet Services, the internet service provider
for IP address 173.78.19.241. (Doc. ## 5, 7). After receiving
the information from Verizon, Malibu Media filed an Amended
Complaint against Gregory Weaver. (Doc. # 10). The Amended

7 

Complaint brings one count for copyright infringement as to
31 films. (Doc. ## 10, 10-2).
The

parties

have

filed

cross-motions

for

summary

judgment as to Count I. In addition, Malibu Media seeks
summary judgment as to Weaver’s defenses. Both Motions are
ripe for review.
II.

Legal Standard
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.”

Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing

8 

the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). “When a moving party has discharged
its burden, the non-moving party must then ‘go beyond the
pleadings,’ and by its own affidavits, or by ‘depositions,
answers

to

interrogatories,

and

admissions

on

file,’

designate specific facts showing that there is a genuine issue
for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, Fla.,
344 F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact
finder evaluating the evidence could draw more than one
inference from the facts, and if that inference introduces a
genuine issue of material fact, the court should not grant
summary judgment. Samples ex rel. Samples v. City of Atlanta,
846 F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron &
Steel Works, Inc. v. Emp’rs Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)).

However,

if

9 

the

non-movant’s

response

consists

of

conclusional

nothing

“more

allegations,”

than

summary

a

repetition

judgment

is

of
not

his
only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).
Although both parties seek summary judgment as to Count
I of the Amended Complaint, “each side must still establish
the lack of genuine issues of material fact and that it is
entitled to judgment as a matter of law.” Chao v. Tyson Foods,
Inc., 568 F. Supp. 2d 1300, 1305 n.1 (N.D. Ala. 2008) (citing
Chambers & Co. v. Equitable Life Assur. Soc’y of the U.S.,
224 F.2d 338, 345 (5th Cir. 1955); Matter of Lanting, 198
B.R. 817, 820 (Bankr. N.D. Ala. 1996)). “The fact that both
parties simultaneously are arguing that there is no genuine
issue of fact . . . does not establish that a trial is
unnecessary thereby empowering the court to enter judgment as
it sees fit.” 10A WRIGHT, MILLER & KANE, FEDERAL PRACTICE

AND

PROCEDURE

§ 2720, 327-28 (3d ed. 1998). The Court, therefore, will
consider each Motion independently. Meridian Constr. & Dev.,
LLC v. Admiral Ins. Co., 105 F. Supp. 3d 1331, 1338 (M.D.
Fla. 2013) (stating, “with cross-summary judgment motions,
consideration of each motion must be undertaken on its own
merits with inferences drawn in favor of the nonmoving party
on each motion”); Chao, 568 F. Supp. 2d at 1305 n.1.

10 

III. Analysis
A.

Count I of the Amended Complaint

“A finding of copyright infringement requires proof of
‘(1) ownership of a valid copyright, and (2) copying of
constituent elements of the work that are original.’” Olem
Shoe Corp. v. Wash. Shoe Corp., 591 Fed. Appx. 873, 881 (11th
Cir. 2015) (quoting Baby Buddies, Inc. v. Toys “R” Us, Inc.,
611 F.3d 1308, 1315 (11th Cir. 2010)). In response to Malibu
Media’s Motion, Weaver “ask[ed] that the Court allow [him]
through the close of the discovery period to present evidence
negating [Malibu Media’s] claim of copyright ownership.”
(Doc. # 82 at 14). As Weaver acknowledges in his Motion,
discovery

is

closed.

(Doc.

#

98

at

3).

Weaver

has

not

presented evidence or further argument contesting Malibu
Media’s copyright ownership.
For its part, Malibu Media submitted screenshots of
certificates of registration for each of the 31 titles listed
in the Amended Complaint. (Doc. # 74-1). “A certificate of
registration made before or within five years after first
publication of the work is prima facie evidence of ownership.”
Garden Meadow, Inc. v. Smart Solar, Inc., 24 F. Supp. 3d 1201,
1207 (M.D. Fla. 2014); see also Olem Shoe Corp., 591 Fed.

11 

Appx. at 882. Therefore, the element of ownership has been
satisfied.
Copying may be proven by either direct or indirect
evidence. Baby Buddies, 611 F.3d at 1315. A plaintiff seeking
to establish infringement through indirect evidence must show
the works are either strikingly or substantially similar,
depending on whether the plaintiff can prove access.
A

“reasonable

opportunity

to

view”

is

regarded

as

access. Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1249
(11th Cir. 1999) (citation omitted). Weaver admits to using
BitTorrent to download adult films (Doc. # 74-4 at 30, Weaver
Depo. at 114:8-13); Weaver was aware of Malibu Media (Id. at
115:10-15); Weaver admits to downloading Malibu Media’s films
through BitTorrent

(Id. at 116:12-16); and Weaver admits to

watching films produced by Malibu Media (Id. at 115:19-25).
In addition, torrent files for 25 of the 31 titles listed
in the Amended Complaint were found on Weaver’s hard drive.
(Doc. ## 74-3 at 5); cf. (Doc. # 98-1 at 4-5) (stating only
19 torrent files were found). As Weaver notes, “the existence
of ‘torrent files’ on [his] computer suggests that [he] had
an opportunity to copy the works.” (Doc. # 98 at 17). There
is also evidence that IP address 173.78.19.241 uploaded a
piece of each of the 31 films at issue. (Doc. #74-2 at ¶¶ 20-

12 

21). Given that Weaver admits using BitTorrent to download
Malibu Media films, IP address 173.78.19.241 uploaded a piece
of each film at issue in this case, and torrent files for at
least 19 of the films were found on Weaver’s hard drive, the
Court finds that Weaver had access to the 31 titles at issue.
Because

access

has

been

shown,

Malibu

Media

must

establish substantial similarity between the alleged copy and
the corresponding copyrighted film for all 31 films at issue.
See Baby Buddies, 611 F.3d at 1315. Substantial similarity
exists if “‘an average lay observer would recognize the
alleged copy as having been appropriated from the copyrighted
work.’” Id. (quoting Oravec v. Sunny Isles Luxury Ventures,
L.C., 527 F.3d 1218, 1224 (11th Cir. 2008)).
The Court finds a genuine issue of material fact exists
as to whether Weaver copied the 31 films listed in the Amended
Complaint. To begin, there is dispute in the record regarding
how many torrent files for the at-issue films were found on
Weaver’s hard drive. Compare (Doc. # 74-3 at 5) (stating 25
torrent files were found), with (Doc. # 98-1 at 4-5) (stating
19 torrent files were found).
In addition, Weaver admits to using BitTorrent (Doc. #
74-4 at 22, Weaver Depo. at 85:3-20) and he even admits to
using BitTorrent to download Malibu Media films (Id. at

13 

116:12-16). However, Weaver does not remember how many and
which Malibu Media films he downloaded via BitTorrent. (Id.
at 116:17-117:3). Likewise, when asked whether he recognized
or attempted to download any of the 31 at-issue films, Weaver
testified at his deposition that he did not remember. (Id. at
117:6-118:4). Furthermore, while making much of the fact none
of the 31 films were found on his hard drive, Weaver testified
during his deposition that he would delete a Malibu Media
film within a minute of viewing it. (Id. at 123:22-24).
Additionally, the parties’ respective experts have drawn
different conclusions from examining Weaver’s hard drive.
Weaver’s expert opined that “[p]ortions of the downloaded
files would have been recoverable during [his] search had
they existed . . . in the live and organized folders and files
that are part of the operating system or in unallocated
space.” (Doc. # 98-1 at 4-5). The opinion of Weaver’s expert
suggests that the 31 at-issue films did not exist on Weaver’s
hard drive, which Weaver argues establishes that he did not
download the films.
But, Malibu Media submitted a declaration (made pursuant
to 28 U.S.C. § 1746) explaining that “the overall continued
use

of

a

compromises

computer
the

device

evidence

.

.

within

14 

.

permanently

the

drive.

alters

Indeed,

and
such

actions overwrite data within the unallocated space of the
hard drive.” (Doc. # 92-1 at ¶ 5). Furthermore, “[w]hen data
in the unallocated space of a drive is overwritten, it is
permanently removed from the drive and any evidence contained
therein is unrecoverable.” (Id.); see also U.S. v. Schaff,
454 Fed. Appx. 880, 881 (11th Cir. 2012) (stating, “when a
user deletes a file from his computer, the file actually
remains on the hard drive until it is overwritten by other
data. Such files are said to be in the computer's unallocated
space”). The preceding expert opinions do little to lessen
the opaqueness of the record; instead, they highlight that a
genuine issue of material fact exists as to whether Weaver
downloaded the 31 films at issue in this case.
The record is also unclear as to whether IP address
173.78.19.241 was assigned to Weaver during the period of
alleged infringement. As Weaver notes, “IP addresses can
change frequently due to their dynamic nature.” (Doc. # 82 at
12 (quoting Bubble Gum Prods., LLC v. Does 1-80, No. 1220367-CIV, 2012 WL 2953309, at *4 (S.D. Fla. July 19, 2012))
(emphasis added). However, simply noting that an IP address
can be dynamic does not establish that Weaver’s IP address
was dynamic. See United States v. Berger, Nos. 3:08cr22/LAC,
3:09cv551/LAC/EMT, 2012 WL 3240655, at *7 n.7 (N.D. Fla. June

15 

12, 2012) (noting that, while an IP address can be dynamic,
it can also be static).
The

record

shows

that

“Weaver

was

the

subscriber

assigned IP address 173.78.19.241 on June 4, 2014,” and that
Weaver’s laptop used IP address 173.78.19.241 on February 21,
2014, April 15, 2014, and August 18, 2014. (Doc. # 74-3 at ¶¶
10, 13). However, the record does not indicate whether IP
address 173.78.19.241 was dynamic or static. Accordingly, a
genuine issue of material fact exists as to whether Weaver
was assigned IP address 173.78.19.241 during the relevant
time period.
Weaver further argues that, without having found the 31
at-issue films on his hard drive, Malibu Media does not have
an infringing work to present to a jury for comparison. (Doc.
# 98 at 17-18). Malibu Media argues that by utilizing the
hash

values

173.78.19.241,

for
it

the

pieces

can

received

“correlate

the

from
pieces

IP
to

address
their

respective movie files.” (Doc. # 121 at 11). Neither party
has cited any authority in support of its respective position.
Likewise, the Court has not found any authority through its
own independent research.
Notably,

however,

Malibu

Media’s

method

of

proof

comports with other courts’ descriptions of how BitTorrent

16 

works. For example, the court in In re BitTorrent Copyright
Infringement Cases described how BitTorrent utilizes the
pieces’ hash values to ensure file integrity as: “[u]sing the
Hash identifiers, BitTorrent compares th[e] newly-assembled
movie to the original movie to make certain that all the
pieces have been received and that all are correct and not
corrupted.” 2013 WL 501443, at *3. The court in Reynolds
described

the

process

in

a

similar

fashion:

“the

hash

identifier works like an electronic fingerprint, identifying
the source and origin of the piece and verifying that the
piece is authentic, error-free, and uncorrupted.” 2013 WL
870618, at *2. The Reynolds court further noted that use of
BitTorrent “result[s] in a file identical to the initial
seed”. Id. at *3. In light of the Court’s understanding of
how BitTorrent functions——as well as the genuine issue of
material fact surrounding whether Weaver downloaded the 31
films at issue——the Court determines summary judgment is not
appropriate with regard to Count I of the Amended Complaint.
B.

Weaver’s Affirmative Defenses

In his Answer, Weaver asserts nine “defenses,” some of
which are actually affirmative defenses. (Doc. # 27 at 7-10).
“[A]n affirmative defense is one that admits to the complaint,
but avoids liability, wholly or partly, by new allegations of

17 

excuse, justification, or other negating matters.” VP Props.
& Dev., LLLP v. Seneca Specialty Ins. Co., No. 15-11591, 2016
WL 945230, at *3 (11th Cir. Mar. 14, 2016) (citation and
internal quotation marks omitted). “On a plaintiff’s motion
for summary judgment, the defendant bears the initial burden
of showing that the defense is applicable.” Office of Thrift
Supervision v. Paul, 985 F. Supp. 1465, 1470 (S.D. Fla. 1997)
(citing Blue Cross & Blue Shield v. Weitz, 913 F.2d 1544,
1552 (11th Cir. 1990)). Malibu Media seeks summary judgment
as to all nine defenses, thus Weaver bears the initial burden
of showing the record supports each affirmative defense. See
Id.
1.

First Defense

In his First Defense, made under Federal Rule of Civil
Procedure

12(b)(6),

Weaver

argues

that

Malibu

Media

has

failed to state a cause of action. (Doc. # 27 at 7). As Malibu
Media correctly notes, “[a] defense which points out a defect
in the plaintiff’s prima facie case is not an affirmative
defense.” In re Rawson Food Serv., Inc., 846 F.2d 1343, 1349
(11th Cir. 1988). But, it does not follow that Weaver’s
inclusion of this defense in his Answer was inappropriate.
See Fed. R. Civ. P. 7(a)(2), 12(b)(6), 12(h)(2); FTC v.
Rawlins & Rivera, Inc., No. 6:07-cv-146-Orl-18KRS, 2007 WL

18 

1730091, at *3 (M.D. Fla. June 14, 2007) (stating, “as the
Federal Rules gives the party asserting the defense the option
of pleading failure to state a claim by answer . . ., the
defendants cannot be faulted for electing to assert the
defense in their answer.”). Given that a genuine issue of
material fact exists as to whether Weaver downloaded the films
at issue, the Court denies Malibu Media’s Motion with respect
to Weaver’s First Defense.
2.

Second Defense

For his Second Defense, Weaver asserts the affirmative
defense of “De Minimis Non Curat Lex.” (Doc. # 27 at 8).
“[F]or similarity to be substantial, and hence actionable, it
must apply to more than simply a de minimis fragment. . . .
The extent of copying must be assessed with respect to both
the quantitative and the qualitative significance of the
amount copied to the copyrighted work as a whole.” Peter
Letterese & Assocs., Inc. v. World Inst. of Scientology
Enters., 533 F.3d 1287, 1306-07 (11th Cir. 2008) (first
alteration in original) (citation and internal quotation
marks omitted). Because a genuine issue of material fact
exists as to whether Weaver downloaded the films at issue,
Malibu Media’s Motion is denied with respect to Weaver’s
Second Defense.

19 

3.

Third Defense

Weaver’s Third Defense, “Failure to Mitigate Damages,”
is

actually

Tankships,

an
Inc.,

affirmative
205

F.3d

defense.
1277,

Frederick

1286

(11th

v.

Kirby

Cir.

2000)

(stating, “[t]his circuit has held that the ‘failure to
mitigate damages . . . is an affirmative defense’”) (second
alteration in original) (citation omitted). “[T]he defense of
failure to mitigate damages is generally inappropriate when
a party seeks only statutory, as opposed to actual, damages.”
Malibu Media, LLC v. Jason Sterling, No. 8:13-cv-472-T-27EAJ,
(Doc. # 19 at 2-3) (M.D. Fla. July 27, 2013). The Amended
Complaint does not seek actual damages. (Doc. # 10 at 6-7).
Therefore, the Court grants Malibu Media’s Motion as to
Weaver’s Third Defense. See Malibu Media, LLC v. Fitzpatrick,
No. 1:12-cv-22767, 2013 WL 5674711, at *3 n.17 (S.D. Fla.
Oct. 17, 2013) (finding affirmative defense of failure to
mitigate “obviated” by plaintiff’s election to seek only
statutory damages).
4.

Fourth Defense

In his Fourth Defense, Weaver argues that Malibu Media’s
claim for statutory damages is barred by the Due Process
Clause

of

the

Fifth

Amendment

to

the

United

States

Constitution. (Doc. # 27 at 8-9). In particular, Weaver

20 

asserts

that,

“[i]f

all

of

Plaintiff’s

settlements

for

infringement of the works in question are added together, the
damages likely exceed beyond the statutory maximum allowed by
the copyright statute.” (Id. at ¶ 42).
The Copyright Act provides a plaintiff with the option
to elect an award of statutory damages “for all infringements
involved in the action, with respect to any one work . . . in
a sum of not less than $750 or more than $30,000 as the court
considers just.” 17 U.S.C. § 504(c)(1). “[D]amages awarded
pursuant to a statute violate due process only if they are
‘so severe and oppressive as to be wholly disproportioned to
the offense and obviously unreasonable.’” Capitol Records,
Inc. v. Thomas-Rasset, 692 F.3d 899, 907 (8th Cir. 2012)
(quoting St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S.
63, 67 (1919)); see also Sony BMG Music Entm’t v. Tenenbaum,
719 F.3d 67, 70-71 (1st Cir. 2013) (applying same standard).
At this stage of the proceedings, any determination as
to the constitutionality of the amount of a statutory-damages
award would be based on speculation. To be sure, Malibu Media
has not yet been awarded any statutory damages, nor has
Weaver’s liability been determined. The Court will consider
the constitutionality of any statutory-damages award if and

21 

when the issue becomes ripe. Accordingly, Malibu Media’s
Motion is denied with respect to Weaver’s Fourth Defense.
5. Fifth Defense
Weaver asserts “Failure to Join an Indispensible Party”
as his Fifth Defense. Weaver argues Malibu Media failed “to
join the indispensable party” and so the Amended Complaint
should be dismissed. (Doc. # 27 at ¶ 43). In relevant part,
Rule 19 provides, “[a] person . . . whose joiner will not
deprive the court of subject-matter jurisdiction must be
joined as a party if . . .[,] in that person’s absence, the
court cannot accord complete relief among existing parties.”
Fed. R. Civ. P. 19(a)(1).
Malibu Media is suing one person in this action for
alleged copyright infringement: Weaver. Although peers using
BitTorrent must interact by sharing files to download those
files, “[c]opyright infringement is a tort and it is wellsettled that joint tortfeasors . . . ‘are neither necessary
parties under Rule 19(a) nor indispensable parties under Rule
19(b).’” Malibu Media, LLC v. Tsanko, No. 12-3899(MAS)(LHG),
2013 WL 6230482, at *8 (D. N.J. Nov. 30 2013) (quoting Malibu
Media, LLC v. John Doe 1, No. 12-2078, 2013 WL 30648, at *10
(E.D. Pa. Jan. 3, 2013)). Thus, “[t]he Court will be able to
adjudicate this matter and accord complete relief . . .

22 

regardless of whether any other allegedly infringing members
[of the swarm] are present.” Malibu Media, LLC v. Doe, No.
RWT 13-cv-0512, 2015 WL 1402286, at *3 (D. Md. Mar. 25, 2015).
In short, Weaver’s Fifth Defense is “debunked by wellsettled interpretations of Rule 19(a).” Malibu Media v. Batz,
No. 12-cv-1953, 2013 WL 2120412, *4 (D. Colo. Apr. 5, 2013);
see also Malibu Media, LLC v. Doe, No. 1:13-CV-30, 2013 WL
4048513, at *3 (N.D. Ind. Aug. 9, 2013) (striking non-joinder
defense as “debunked”). Therefore, the Court grants Malibu
Media’s Motion with respect to Weaver’s Fifth Defense. See
Fitzpatrick,

2013

WL

5674711,

at

*5

(granting

summary

judgment in favor of Malibu Media as to defendant’s nonjoinder defense).
6.
Weaver’s

Sixth Defense
Sixth

Defense

Communication

Decency

Act,

Communication

Decency

Act

asserts
47

is

immunity

U.S.C.

§

inapplicable

to

the

But,

230.

under

the

copyright

infringement actions. See 47 U.S.C. § 230(e)(2) (stating,
“[n]othing in this section shall be construed to limit or
expand

any

law

pertaining

to

intellectual

property”);

Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413,
422-23

(1st

Cir.

2007)

(stating,

“[c]laims

based

on

intellectual property laws are not subject to Section 230

23 

immunity”); Atl. Recording Corp. v. Project Playlist, Inc.,
603 F. Supp. 2d 690, 704 (S.D.N.Y. 2009) (stating, “as a
matter

of

law,

that

Section

230(c)(1)

does

not

provide

immunity for either federal or state intellectual property
claims”). Therefore, Malibu Media is entitled to summary
judgment as to Weaver’s Sixth Defense.
7.
Weaver’s

Seventh Defense
Seventh

Defense

of

“License,

Consent,

and

Acquiescence” is actually three affirmative defenses. “An
implied license is created when one party (1) creates a work
at another person’s request; (2) delivers the work to that
person; and (3) intends that the person copy and distribute
the work.” Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1235
(11th Cir. 2010). As to consent, “[w]aiver or abandonment of
copyright occurs only if there is an intent by the copyright
proprietor to surrender rights in his work.” Malibu Media,
LLC v. Zumbo, No. 2:13-cv-729-JES-DNF, 2014 WL 2742830, at *2
(M.D. Fla. June 17, 2014) (citation and internal quotation
marks omitted). Regarding acquiescence, a defendant must
establish that “(1) Plaintiff actively represented that [it]
would not assert a right or a claim; (2) the delay between
the active representation and assertion of the right or claim
was not excusable; and (3) the delay caused the [D]efendant

24 

undue prejudice.” Thornton v. J Jargon Co., 580 F. Supp. 2d
1261, 1283 (M.D. Fla. 2008) (citation omitted).
Weaver has not submitted any evidence supporting these
three affirmative defenses. As such, Weaver failed to carry
his burden and summary judgment in favor of Malibu Media is
appropriate with respect to each component of the Seventh
Defense.
8.

Eighth Defense

Furthermore,

Malibu

Media

is

entitled

to

summary

judgment as to Weaver’s Eighth Defense of “Unclean Hands.”
“To prevail on the defense of unclean hands, Defendant[] must
demonstrate

that:

(1)

Plaintiff's

alleged

wrongdoing

is

directly related to the claim against which it is asserted;
and (2) Defendant[] [was] personally injured by Plaintiff's
conduct.”

Id.

(citing

Calloway

v.

Partners

Nat’l

Health

Plans, 986 F.2d 446, 450-51 (11th Cir. 1993)). Weaver has
presented no evidence in support of this affirmative defense
and, therefore, has failed to carry his burden. Accordingly,
summary judgment in favor of Malibu Media is appropriate as
to the Eighth Defense.
9.

Ninth Defense

Weaver’s Ninth Defense is no defense at all; rather, it
is a denial of Malibu Media’s entitlement to relief. (Doc. #

25 

27 at ¶ 47) (stating, “Plaintiff is not entitled to injunctive
relief

because

any

alleged

injury

to

Plaintiff

is

not

immediate nor is it irreparable”). “[W]hen a specific denial
is labeled as an affirmative defense, a court will generally
treat the defense as a denial . . . .” Royal Caribbean
Cruises, Ltd. v. Jackson, 921 F. Supp. 2d 1366, 1372 (S.D.
Fla. 2013). Even though Weaver’s Ninth Defense is mislabeled,
in light of the genuine issue of material fact regarding
whether Weaver downloaded the 31 films at issue, the Court
denies Malibu Media’s Motion as the Ninth Defense.
IV.

Conclusion
In sum, Malibu Media’s Motion is granted in part and

denied in part. In particular, Malibu Media’s Motion is denied
as to Count I of the Amended Complaint because a genuine issue
of

material

fact

exists

with

respect

to

whether

Weaver

downloaded the 31 films at issue in this action. Furthermore,
Malibu Media’s Motion is denied as to Weaver’s First, Second,
Fourth, and Ninth Defenses, but granted as to the Third,
Fifth, Sixth, Seventh, and Eighth Defenses. Weaver’s Motion,
which seeks summary judgment as to Count I of the Amended
Complaint only, is denied because Malibu Media has presented
sufficient evidence to create a genuine issue of fact.
Accordingly, it is

26 

ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff Malibu Media’s Motion for Summary Judgment
(Doc. # 74) is GRANTED IN PART AND DENIED IN PART, as
detailed herein.

(2)

Defendant Gregory Weaver’s Motion for Summary Judgment
(Doc. # 98) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 8th

day of April, 2016.

27