MALIBU MEDIA, LLC v. JOHN DOES 1-16

Filing 203

MEMORANDUM-REPORT ON BELLWETHER TRIAL. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 6/18/2013. 6/19/2013 ENTERED AND COPIES E-MAILED.(amas)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MALIBU MEDIA, LLC,
Plaintiff,
v.

CIVIL ACTION NO. 12-2078

JOHN DOES 1, 6, 13, 14, and BRYAN
WHITE
Defendants.

Baylson, J.

June 18, 2013
MEMORANDUM – REPORT ON BELLWETHER TRIAL

After determining a “Bellwether” Trial would be the best way to achieve a resolution of
numerous copyright infringement complaints filed in this district by Plaintiff Malibu Media,
LLC (“Malibu”), expedited pretrial proceedings resulted in a non-jury trial on June 10, 2013.
Malibu, a producer of adult cinemas, alleged Defendants had downloaded its movies using a type
of software known as “BitTorrent” without paying a licensing fee, and were therefore liable for
damages for copyright infringement.
The proceedings resulted in admissions of liability by the three Defendants remaining in
the case, and either settlements or determination of damages by the Court. The Court will also
award attorneys’ fees and costs against one of the three Defendants.
Because of significant interest in these cases, I have prepared this report of the
proceedings, which may be of value to other judges in this and other districts who have
numerous cases involving similar allegations. In doing so, I emphasize that Malibu is not what
has been referred to in the media and legal publications, and in the internet blogosphere, as a
“copyright troll” –i.e., a non-producer who merely has acquired the right to bring lawsuits

against alleged infringers. 1 Rather, Malibu is an actual producer of adult films and owns valid
copyrights, registered with the United States Copyright Office, in its works. 2
This report will be, purposely, factual and “plain vanilla” in its tone. My purpose is not to
criticize any party or counsel, but rather to report on the pleadings, discovery, and case
management aspects, and what management devices I employed to bring the matter to a
relatively speedy and fair conclusion.

Initial Filings
Three complaints originally filed by Malibu in April 2012, naming a total of 52
defendants denominated as “John Does,” were assigned to my calendar. Malibu promptly filed a
Motion for Leave to serve third party subpoenas on internet service providers (“ISPs”), 3 in order
to determine the actual names and addresses of the John Doe Defendants. (ECF 4). In support of
its motion, Malibu asserted that it had valid internet protocol (“IP”) address for each infringing
party. Malibu documented an extensive and expensive investigation, as a result of which it was
1

President Obama has personally condemned the practice of copyright trolls and patent trolls clogging the courts,
see White House, Fact Sheet: White House Task Force on High-Tech Patent Issues (2013), available at
http://www.whitehouse.gov/the-press-office/2013/06/04/fact-sheet-white-house-task-force-high-tech-patent-issues,
and Chief Federal Circuit Judge Randall Rader, in a recent New York Times article, made similar comments, see
Randall R. Rader et al., Make Patent Trolls Pay in Court, N.Y. Times, June 4, 2013, available at
http://www.nytimes.com/2013/06/05/opinion/make-patent-trolls-pay-in-court.html. Many internet blogs
commenting on this and related cases ignore the rights of copyright owners to sue for infringement, and
inappropriately belittle efforts of copyright owners to seek injunctions and damages.
2

To be sure pornographic movies are not to everyone’s taste, but media reports, as well as proceedings in another
case before me, Free Speech Coalition et al. v. Holder, Civil Action No. 09-4607, have documented the frequency
and prevalence of pornographic material on the internet, much of it for free and available to adults and minors of any
age. My initial opinion dismissing the complaint in the Free Speech case is published at 729 F. Supp. 2d 691, 746
(E.D. Pa. 2010), affirmed in part and vacated in part, 677 F.3d 519 (3d Cir. 2012). Following remand, a non-jury
trial was conducted in June 2012 and a decision will be forthcoming.
3

Internet Service Providers (“ISPs”) provide internet services to businesses, government and individuals. Two of the
largest in the United States are Comcast and Verizon, but there are many others. Both Comcast and Verizon, and
presumably other ISPs, employ significant digital databases by which they can supply the names and addresses of
their subscribers according to an internet protocol address. They are frequently requested to provide this information
to law enforcement and other government agencies, and have now become accustomed to subpoenas requiring they
provide this information to parties in civil litigation, as well.

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able to obtain internet addresses for the individuals who it asserted had illegally copied its
movies. Malibu alleged this information was sufficient to support its selection of the John Doe
Defendants. A hearing was held on May 14, 2012. (ECF 7). The Court’s resolution, in an Order
dated May 18, 2012, was to grant the motion to serve the subpoenas in part. (ECF 8). 4
Specifically, Plaintiffs were afforded the opportunity to serve the ISPs with Rule 45 subpoenas,
commanding each ISP to provide Plaintiff with the true names and addresses of the Doe
Defendants to whom the IP addresses were assigned. Plaintiffs also were directed to attach a
Court-Directed Notice to the Rule 45 subpoenas and to instruct the ISPs to distribute copies of
the Notice to each Doe Defendant, informing them that they shall have 21 days to file motions to
quash or vacate the subpoenas. (Id.).
Several of the six John Doe Defendants identified as subscribers by the ISPs filed
Motions to Dismiss the Complaint and/or to Quash the Subpoenas, asserting that there wasn’t
sufficient evidence to require the ISPs to reveal their identities. (ECF 9). One motion was later
withdrawn, leaving five pending before the Court. Those five motions essentially sought three
types of relief:
1.
Quashing the subpoenas to the ISPs on the grounds that
Malibu did not have sufficient facts on which to have third party
subpoenas issued.
2.
That the joinder of multiple John Doe Defendants in one
Complaint was not proper and that the defendants who had been served should be
severed from other defendants.
3.
That the allegations of the Complaint were not only untrue, but
very embarrassing (because they dealt with downloading pornographic movies),
4

Throughout this opinion, this Court will make references to various opinions and orders entered, and assumes that
the reader has access to this Court’s docket through PACER, the federal courts’ publicly available digital access to
court documents. To repeat the contents of these significant orders in this case, even in summary form, would
unnecessarily elongate this Report. The court’s Memoranda of October 3, 2012 (ECF 22), January 3, 2013 (ECF
55) and March 6, 2013 (ECF 118) contain many details about the factual and legal issues involved.

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and therefore the John Doe Defendants should be allowed to proceed
anonymously.
On August 16, 2012, Chief Judge Joyner, realizing that a large number of these cases
had been filed in this District and were assigned to different judges, issued an Order directing
that all of the Malibu cases filed in this District were referred to me “for monitoring and
coordination of the following issues: severance of defendants, the statute of limitations,
discovery, scheduling of arbitration hearings, civil negotiations and trial dates.” (ECF 12).
However, Chief Judge Joyner also ordered that any cases subject to his August 16 Order remain
on the calendar of the judge to whom it was assigned pending further order. A number of my
colleagues have consulted me from time to time, and I advised them that I had scheduled a
Bellwether trial to take place after discovery and expert opinions. I recommended that they stay
their cases, pending the trial.
A hearing was held on September 18, 2012 to review the status of the case and determine
what issues were important for pretrial discovery, so that the case could proceed to a resolution.
In a Memorandum dated October 3, 2012, I reviewed the proceedings up to that point and
determined that the best, if not the only, way to advance the litigation would be to designate the
five individuals with outstanding Motions to Quash the Subpoenas or Dismiss the Complaint as
Defendants as to whom a Bellwether trial would proceed. 5 (ECF 21 & 22). I concluded that
Malibu had expended considerable effort and expense to determine the IP addresses of the
infringing parties, and the technology employed by its consultants – both of whom were located
in Germany and who testified at the trial of June 10, 2013 – was valid. (Memorandum, at 6-14)
(ECF 21). I ordered that the ISPs comply with the Rule 45 subpoenas and tender the identifying
information of the five Doe Defendants with outstanding motions before the Court to Plaintiff.
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Eventually, the Court determined that the three cases should be consolidated and all proceedings were then
docketed in Civil Action 12-2078.

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In turn, I ordered Plaintiff to effectuate service of the Complaints on those five Defendants
within 10 days. (ECF 22). I stayed the litigation as to the remaining defendants in the three cases.
(Id.). 6
Service was eventually effectuated on the five Doe Defendants. (See, e.g., ECF 30 in
Civil Action 12-2078) (relating that service of process was made on the individual named as
John Doe 16 on October 20, 2012).
On November 2, 2012, Malibu filed an Amended Complaint. (ECF 34).
One of the owners of Malibu, Colette Field, filed an affidavit on December 5, 2012
asserting personal knowledge that Malibu was the copyright owner of the movies as to which the
illegal downloading/copyright infringement had taken place. (ECF 43). This affidavit, in
combination with the affidavit that had been filed documenting the technology employed by
Malibu to determine the internet addresses, supplied the Court with a solid factual basis upon
which to conclude there was “plausibility” to Malibu’s infringement claims and to deny the
Motions to Dismiss that had been filed by the Doe Defendants. (ECF 55). I also rejected
Defendants’ arguments that all members of a BitTorrent “swarm” were indispensable parties
under Rule 19. (Id.).
After counsel met to discuss discovery, and filed a Rule 26(f) Report (ECF 37), a Rule 16
conference was held on November 28, 2012, which resulted in a detailed Scheduling Order

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As stated, there were initially 52 John Doe Defendants named across the three complaints. By the time of the
Court’s Order on October 3, 2012, Malibu had voluntarily dismissed 43 of the Doe Defendants because the timeline
for service of process under Fed. R. Civ. P. 4(m) had expired. (See ECF 16, 17, and 23 in Civil Action No. 12-2088;
ECF 15, 18 in Civil Action No. 12-2084; and ECF 13 in Civil Action No. 12-2078). This yielded three remaining
Doe Defendants – separate from the five who were designated as Defendants in the Bellwether trial – as to whom
litigation was stayed. At the trial of June 10, 2013, Plaintiff’s counsel stated the three remaining Does also been
voluntarily dismissed. He explained that ISPs such as Comcast and Verizon do not keep the data necessary for
correlating an internet protocol address with a name and address of a subscriber for lengthy periods of time – hence
the need for voluntary dismissals. Apparently, Malibu decided as a matter of strategy that having the opportunity to
gather evidence and prove its case as to the five individuals who were designated as Defendants for the Bellwether
trial was sufficient for its purposes.

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leading up to the Bellwether trial. (ECF 40). On December 28, 2012, the Court issued an order
compelling discovery against Defendants because they had not answered Malibu’s discovery
requests. (ECF 54). After a number of depositions had taken place, the Court set deadlines for
Rule 37 motions to prevent delay in resolving discovery disputes. There were a few conferences
with counsel to resolve such discovery disputes. Most of these were held by telephone and a
record was made, through the Court’s digital audio recording system.
When Defendants answered the Amended Complaint, they pled affirmative defenses and
counterclaims that principally alleged abuse of process by Plaintiff in making untrue and
unjustified allegations. (See, e.g., ECF 34, 58, 59). On March 6, 2013, I issued an extensive
Order and Memorandum denying Malibu’s Motions to Strike the Affirmative Defenses and
granting its Motions to Dismiss the Counterclaims, but without prejudice and with leave to
amend. (ECF 103 and 117). By this point, one of the five Defendants (John Doe 6) had been
voluntarily dismissed (ECF 82), and by the time of trial, an additional Defendant (John Doe 14)
was as well (ECF 113). This left three John Doe Defendants for trial – John Doe 1, John Doe 13,
and John Doe 16 – only one of whom, John Doe 16, filed an Amended Counterclaim. (ECF 109).

Joinder and Severance
As noted above, when the three cases assigned to me were filed, there were multiple
defendants in each case. Plaintiff, when faced with a motion to sever, asserted that the
defendants were properly joined in a single complaint as members of a “swarm,” a term of art
relating to the functioning of the BitTorrent software. According to testimony at trial, the
BitTorrent software works automatically, joining together multiple internet subscribers (the
“swarm”) who are seeking to download the same movie at the same time. These individuals do

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not know each other. The software sends different “bits” of the same movie to different users
and when the overall download is completed, each internet subscriber who has logged on to the
software will have the complete movie on his or her own computer hard drive.
I have previously cited decisions by other judges when faced with similar motions to
sever in BitTorrent litigation. (See Memorandum, at 9-10, 14-17) (ECF 21). Some judges have
allowed joinder of these multiple defendants in the same complaint because they reasoned the
plaintiff’s allegation that the defendants were part of the same “swarm” allowed for permissive
joinder under Rule 20(a). Other judges have denied joinder, and in some instances, judges have
even stricken complaints because they suspected the plaintiff’s joinder of many defendants in the
same complaint was done to avoid paying multiple filing fees. (Id. at 16). Another option is to
stay proceedings against some defendants.
Malibu’s Amended Complaint was limited to the five defendants still in the case.
I now believe that joinder of multiple defendants in a single complaint alleging copyright
infringement through the use of BitTorrent technology is neither necessary nor appropriate. This
conclusion is reflected in my Order and Memorandum denying Defendants’ Motions to Dismiss
the Amended Complaint for failure to join indispensable parties under Rule 19. (ECF 55). As I
held then and believe even more firmly now, members of BitTorrent “swarms” are not essential
parties for copyright infringement suits involving BitTorrent technology because the “swarm” is
formed automatically by the software, and not by any actual association of these defendants.
Moreover, there are downsides to allowing permissive joinder. As trial judges are well aware, a
large number of defendants in a single complaint poses significant management problems and
often delays disposition of cases. Further, joining multiple defendants allows the plaintiff to

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avoid separate filing fees, and also pressures individual defendants to settle because their costs of
defending a multi-party case are likely to be larger than if there is only one defendant.
For these reasons, and based on the record made in this case, I recommend against
requiring joinder under Rule 19 and also against allowing it under Rule 20(a).
Malibu’s counsel at the trial advised that although Malibu used to sue multiple
defendants in a single complaint, it has since changed its practice. Its recent cases, counsel
related, have been filed against a single defendant, alleging copyright infringement by that
individual of a specific movie or movies.

Pre-Trial Proceedings – Discovery Disputes, Admissibility of Evidence, and the Use of a
Court-Appointed Expert
Serious disputes concerning expert reports, the exchange of discovery materials, and the
authenticity and admissibility of evidence, arose in April 2013.
First, there was a dispute concerning the preparation and service of expert reports.
Plaintiff experienced a problem with meeting its deadline for serving its expert report, in part
because its designated expert had died shortly before the deadline. A partner of Malibu’s
designated expert who had also been involved in the work took over, and after a short and
understandable delay, Plaintiff did serve its expert report. None of the three John Doe
Defendants who at that time were still facing a trial had designated an expert or served an expert
report. Two of the three remaining Defendants intended to admit liability, and the trial as to
them would be limited to damages.
Second, a dispute arose concerning the “readability” of the hard drive produced by
Defendant John Doe 16 as part of discovery. Plaintiff’s counsel belatedly learned from Plaintiff’s

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expert that he was not able to “read” the contents of the drive. Accordingly, Plaintiff filed an
“emergency motion” on May 2, 2013, asserting fraud and seeking entry into Defendant’s home
in order to make “forensic copies” of his hard drives. (ECF 125). I held a number of telephone
conferences on this issue, as I was principally concerned with either party intending to use
exhibits at trial which had not been exchanged before trial. Although these exhibits were
computer hard drives rather than documents, pretrial exchange was essential to prevent the trial
from being bogged down with disputes about the authenticity and admissibility of the evidence. I
issued a Memorandum and Order requiring an exchange of these hard drives on May 8, 2013
(specifically, ordering John Doe 16 to send Plaintiff a new copy of his hard drive and ordering
Plaintiff to send John Doe 16 a copy of the drive it received). (ECF 133). Malibu withdrew the
emergency motion 7, but as a result of the further exchange, asserted that John Doe 16 had
manipulated his computer.
Accordingly, the third issue that arose before trial was whether Defendant John Doe 16
had intentionally fabricated evidence by manipulating his hard drive during discovery. Plaintiff
filed a motion alleging such to be the case and attached a Declaration by its expert supporting the
allegation. (ECF 140).
I decided to have a hearing pursuant to Federal Rule of Evidence 104 to provide an
opportunity for live testimony by both Plaintiff’s expert and John Doe 16 as to the readability,
authenticity, and ultimately admissibility, of the various hard drives and computer-based data
that had been exchanged between the parties during discovery. At the hearing, Plaintiff’s expert

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Because the attorney for John Doe 16 had spent a large amount of time defending against the emergency motion,
which was then withdrawn, I awarded attorneys’ fees in favor of John Doe 16 and against Malibu for the time that
had been taken by John Doe 16’s attorney to defend this motion. (ECF 134). Although the issue was important, it
was not an “emergency” and could have been more suitably dealt with by candid exchanges of information between
counsel, and, if left unresolved, seeking a conference with the Court.

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testified telephonically and through a streaming internet video shown in the Courtroom in
Philadelphia. He related his opinions as to both the “readability” and fabrication of evidence
issues. First, Plaintiff’s expert reiterated the conclusions expressed in a written report, that John
Doe 16 had intentionally produced a non-readable hard drive as part of discovery. Second, he
testified that after inspection of the second hard drive produced by John Doe 16, he concluded
the Windows operating system had been installed on John Doe 16’s desktop computer on
November 11, 2012. This was three days after Malibu had served John Doe 16 with a subpoena
for his computer records, including copies of his hard drives. Accordingly, Plaintiff’s expert
testified that in his opinion, John Doe 16 had “wiped clean” his desktop computer after receiving
the subpoena, likely to conceal evidence of BitTorrent software or downloads.
John Doe 16 testified himself. He admitted that he had a good deal of expertise about
computers and owned three computers at his home, including a handmade desktop. He denied
making any distortions or changes to the hard drives of any of the computers to make them nonreadable, denied downloading BitTorrent software or any of Malibu’s movies, and denied
installing Windows to “wipe clean” his desktop computer on November 11, 2012. In view of
this denial, there was no longer any justification for him to proceed anonymously. He identified
himself as Bryan White.
John Doe 16 testified that the date of November 11, 2012, which appeared as the
installation date for the operating system on his desktop, was not necessarily correct, because he
had just been typing “1’s and 0’s” on the date that he started the operating system. He testified
that the date of November 11, 2012 was not necessarily an accurate date.

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As a result of these open disputes, the Court decided to appoint an independent expert
under the Federal Rule of Evidence 706, and designated Louis Cinquanto as the expert. 8 I met
with Mr. Cinquanto and indicated to him the computer technology issues which needed an
impartial investigation.
Since the jury trial would start June 10, 2013, the expert’s testimony would help ensure
trial time would not be consumed with the very technical disputes that could be possibly resolved
prior to trial. At the least, the Court-appointed expert could testify as a “neutral” witness on
computer issues.
The Cinquanto report supported John Doe 16 on the “readability” issue, concluding that
Plaintiff’s expert, although claiming to have made a “forensically sound” copy of the initial hard
drive produced by John Doe 16, had taken the hard drive out of its enclosure. Mr. Cinquanto’s
report concluded that the expert should also have tested the hard drive while inside the enclosure,
and if the expert had done so, he would have found the hard drive perfectly readable. Prior to
jury selection, Malibu’s counsel acknowledged that Mr. Cinquanto was probably correct on this
point.
On the second dispute, regarding whether John Doe 16 had “wiped clean” his personal
desktop computer after having been served with a subpoena on November 8, 2012, Mr.
Cinquanto concluded as follows:
“I also examined the configuration of the defendant’s original tower
unit referred to as the John Doe Desktop. It was configured using 2 drives, a
240GB Solid Strate drive (“240GB SSD”) and 1TB drive. There is nothing unusual
about this configuration. The 240GB SSD appears to be the primary drive and
contains among other things, a Windows 7 operating system.

8

Mr. Cinquanto had previously done computer litigation support in a case before me and had testified as an expert
on computer issues before other judges. He owns a computer services firm in Philadelphia which provides technical
advice to counsel and businesses and also provides courtroom support for presentation of digital evidence.

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The Windows operating system appears to have been installed on
11/11/12 on the 240 GB SSD; however, since the installation time of the
operating system generates the installation date/time using the installer’s input,
the time is as accurate as the user types it. This determines the accuracy of the
timestamp.
Furthermore, I found no evidence to lead me to conclude with certainty
that there was a prior functioning operating system on either the 240 GB SSD or
the 1 TB desktop drives.”

Largely, as a result of Mr. Cinquanto’s report, which was conveyed to counsel several
days before the trial was scheduled to start, John Doe 16, who to this point had denied any
liability, authorized his counsel to admit that he had downloaded Plaintiff’s copyrighted works,
had “wiped clean” his desktop computer and installed a new operating system to conceal the
downloading, and had testified falsely at the Rule 104 hearing.
When the Court convened on June 6, 2013 for jury selection, I was advised of this
development, which meant that John Does 1, 13, and 16 were now all going to admit liability. I
was also advised that Plaintiff had reached private and confidential settlements with Does 1 and
13, which included their remaining anonymous. I decided to bifurcate the issue of damages as to
John Does 1 and 13 –this would enable the Court to enter a judgment of liability as to all three
defendants, to enter a judgment of damages only as to Bryan White (John Doe 16), and to
preserve the anonymity of Does 1 and 13 at trial. 9 Malibu requested the opportunity to
introduce testimony as background for the determination of damages against Bryan White.
Thus, the entire focus of the non-jury trial was to establish a record, following which I would
make a determination as to the amount of damages to be found against White.

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I required these two Defendants to place their full names and addresses in a sealed envelope which would remain
in camera unless good cause shown otherwise.

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Summary of Trial Testimony
Malibu is owned by Colette Field and her husband Brigham Field. Ms. Field testified
credibly at trial. Malibu’s products are sold through its subscription based website which uses
the domain name www.x-art.com. For the first couple of years of its existence, Malibu had a
production budget of between $150,000 and $200,000 a year. It now spends over $2,000,000 a
year to produce its movies. Its subscriber base has grown from about 500 in year one to
approximately 50,000 now.
Malibu spends substantial amounts of money to operate its business. Malibu’s expenses
include compensation to actors, payments for servers and website maintenance, and purchases of
bandwidth, among other things. Malibu’s subscription base has not increased over the last
several years because people are downloading its movies from free via the BitTorrent Protocol.
In May 2013, Malibu estimated over 80,000 people illegally downloaded Malibu’s
movies in the United States through BitTorrent and over 300,000 people illegally downloaded
Malibu’s movies in the fifteen countries that IPP, Ltd., Malibu’s investigator, tracks. This
represented a typical month. Malibu subscribers routinely ask Malibu why they should pay a
subscription fee when they can get its movies for free through BitTorrent. Since it has real costs,
Malibu cannot compete with free copies of its movies.
Twice in 2013, unknown third parties hacked into Malibu’s servers and put its movies
onto BitTorrent prior to the time that these movies were released onto Malibu Media’s website.
These incidents cost Malibu thousands of dollars in lost subscription revenue. Malibu now
encrypts its movies prior to releasing them, and these enhanced security features cost Malibu
approximately $15,000 a month. Nonetheless, they do not stop the infringement from occurring

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once the movie has been unencrypted and then viewed. All it does is stop the theft of its movies
prior to release.
Malibu’s subscribers have also complained that they can download its movies faster from
BitTorrent than they can from its website. Consequently, Malibu started spending approximately
$20,000 more a month this year to make its downloading speed faster than that which can be
achieved through BitTorrent.
Many torrent websites, including The Pirate Bay, do not respect U.S. Copyright laws and
intentionally situate themselves in countries outside the reach of copyright laws. Ms. Field
testified that she believes that this makes stopping the problem of BitTorrent piracy by suing the
torrent websites prohibitively expensive and unlikely to succeed.

Moreover,

the

BitTorrent

software developed by BitTorrent, Inc. can be used for legitimate non-infringing means. Ms.
Field testified that she believes suing BitTorrent, Inc. would be prohibitively expensive for
Malibu Media.
The evidence that Malibu presented at trial was persuasive as to the fact that it had
suffered real damages as a result of illegal downloading of its movies through BitTorrent. At the
close of trial, I summarized some of the precedents on damages in copyright cases, and stressed
the importance of enforcement of copyright laws when the facts warranted a finding of
infringement.
In this case, there was no question about the willfulness of the conduct of John Doe
Defendants 1 and 13 and of Bryan White. The only relevant factors that I found warranted some
mitigation of damages was the fact that White did not make any profit from his infringement,
that he had no prior record of infringement, and that he could not be solely responsible for the
large amount of damages that Malibu had suffered as detailed above.

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As many judges in copyright cases automatically begin with the minimum amount of
statutory damages, $750 per infringement, and then treble that amount to note that the defendant
committed a serious tort, I followed this practice.
However, in this case, because of Bryan White’s having perjured himself at the Rule 104
hearing and having taken steps to destroy and conceal evidence, a further substantial award of
damages was necessary. In a criminal case, this conduct would be denominated as obstruction
of justice. Bryan White’s wiping clean of his computer in attempting to cover up the fact that he
had downloaded the BitTorrent software, as well as five of Malibu’s movies, required a
substantial penalty, and also to make a statement that would effectively deter others from acting
as Bryan White had acted in this case.
I have previously noted the fact that the infringement cases brought by Malibu and other
similarly situated companies have attracted a great deal of attention, not only of federal district
judges but also of bloggers who assert that “copyright trolls” are using unscrupulous tactics and
false accusations to collect millions of dollars from innocent and injured computer users. I do
not have any opinion as to the truth of the situation as regards to other plaintiffs in other courts.
But here, Malibu has satisfied its burden of proof with substantial evidence and deserves a large
award. Bryan White, because of his conduct, deserves a heavy dose of damages which should
also act as a deterrent to others.
I also find attorneys’ fees and costs must be awarded in favor of Malibu and against
Bryan White, in the stipulated amount of $128,350.50.
A Final Judgment will be entered.

O:\CIVIL 12\12-2078 Malibu Media v. John Does 1-16\12cv2078.061413.memo.docx

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