Copyright Claim—Motion for Summary Judgment (Infringement) 
____________________________________________
UNITED STATES DISTRICT COURT [district]
[name of Plaintiff],
Plaintiff,
v.
[name of Defendant]
Defendant.
Civil Action No.: [number]
[date].
____________________________________________
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND INCORPORATED MEMORANDUM OF LAW
Defendant, [name of Defendant], by and through his undersigned counsel, pursuant to Rule 56, Federal Rules of Civil Procedure, hereby moves for summary judgment as a matter of law on Plaintiff’s claims in the Amended Complaint (Doc. 10).
I. Introduction
Plaintiff, [name of Plaintiff], has made more than [number] [description of goods] under the Trademark “[name of Plaintiff’s Trademark]” and publishes them on its website [web address] which it offers to its subscribers. Here, Plaintiff sued Defendant for Direct Copyright Infringement of [number] [description of goods] it listed in Exhibit “A” to its Amended Complaint.
Plaintiff employs an agent, [name of Agent], which alleges to have made, “a direct connection” with IP Address [ip addresses] (Doc. 10 ¶17) using a modified BitTorrent client. BitTorrent software allows users to transmit large files by breaking them up into many small pieces.6 Plaintiff’s agent allegedly “downloaded one or more” pieces7 of the following [number] [description of goods], which are the subject of this lawsuit:
[list of titles]
Plaintiff accused Defendant of downloading these [number] [description of goods] onto his computer hard drive. During discovery, Plaintiff was given carte blanche access to that hard drive. Doc. 57. As such, Plaintiff had ample opportunity to find evidence of actual copies of the [number] [description of goods], if they had been downloaded by Defendant. Despite the conducting of a deep, comprehensive, forensic search on that hard drive by Plaintiff’s own expert, former law enforcement officer [name of officer], Plaintiff was unable to find a single copy, or even a piece of, of any of the [number] [description of goods]. Discovery is now closed.
Without providing a single copy—or even a piece—of any of the [number] [description of goods], or proving that Defendant downloaded any one of the [number] [description of goods], Plaintiff has not, nor cannot, meet its burden of proving a copyright infringement cause of action in this case. Plaintiff cannot prove that Defendant copied any one of the [number] [description of goods] or that any file uncovered on Defendant’s computer is substantially similar to the items. As such, the expense and delay of trial should be avoided, and summary judgment should be granted in favor of Defendant.
II. Uncontested Facts
“Torrent files” relating to [number] of the [number] [description of goods] were found on Defendant’s hard drive. No copy of (or piece of) any one of the [number] [description of goods] was found on Defendant’s hard drive or in Defendant’s possession.
There is no evidence that any of the [number] [description of goods] ever existed on Defendant’s hard drive.
III. Legal Standard
Summary Judgment is warranted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
The summary judgment analysis requires a two-part framework: First, the movant carries the initial burden of “informing the district court of the basis for its motion and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. Proc. R. 56), where, as here, the non-movant bears the burden of proof at trial: “the moving party is not required to support its motion with affidavits or other similar material negating the opponent’s claim in order to discharge this initial responsibility. Instead, the moving party simply may show—that is, point out to the district court—that there is an absence of evidence to support the non-moving party’s case.” (Emphasis added.)
Alternatively, the moving party may support its motion for summary judgment with affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115–16 (11th Cir. 1993) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437–38 (11th Cir. 1991)).
Next, once the movant meets its burden, the burden shifts to the non-movant to demonstrate the existence of a genuine issue of material fact. The non-moving party must do more than simply show some doubt as to the facts of the case. Fitzpatrick, 2 F.3d at 1116. The non-movamt must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories, and admissions on file, and designate specific facts showing a genuine issue for trial. Celotex Corp., 477 U.S. at 324. The evidence must be significantly probative to support the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). “When ruling on a defendant’s motion for summary judgment or a directed verdict in favor of plaintiff, mere existence of a scintilla of evidence in support of the plaintiff’s position will not be sufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id.; Fed. R. Civ. Proc. R. 50(a), 56(c). “Some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247–48.
IV. Copyright Infringement
To establish copyright infringement, “two elements must be proven: (1) ownership of a valid copyright; and (2) copying of constituent elements of the work that are original.” Feist Publications, Inc. v. Rural Telephone Serv. Co., 499 U.S. 340 (1991). A court may determine non-infringement as a matter of law on a motion for summary judgment when no reasonable jury, properly instructed, could find that the two works are substantially similar. See Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 918 (2d Cir. 1980).
A. No jury could find that Defendant copied the
[description of goods]
In another recent and virtually identical case, Plaintiff, just like it did here, received a copy of the defendant’s hard drive and [name of officer] forensically analyzed it. Malibu Media v. Doe, 82 F. Supp. 3d 650, 2015 WL 412855 (E.D. Pa. Feb. 2, 2015). There, the forensic analysis of the hard drive produced evidence of “a data fragment referencing ‘[name of copyrighted work]’—one of [name of Plaintiff]’s copyrighted works listed within the Complaint for [that] lawsuit.” Id. at 656. There, Plaintiff moved for summary judgment arguing it had found evidence that the defendant had downloaded the [description of goods] at issue. Notwithstanding the evidence of the data fragment, the district court denied Plaintiff’s motion and granted summary judgment in favor of defendant because the file fragment was not a copy of any [description of goods] at issue, and Plaintiff had no further evidence to show that copying of the at issue [description of goods] had taken place.
The court found that the substantial similarity test obliged it to determine whether copying had occurred and if that copying constituted improper appropriation. Id. Even though Plaintiff had found what it purported to be an actual fragment of a [description of goods] on defendant’s computer—which is much more than it has obtained in the instant case—it had “a complete failure of proof concerning an essential element of its claim”: “whether Doe copied from the plaintiff’s work and whether the copying, if proven, constitutes an improper appropriation.” Id. at 660. As Plaintiff failed to prove that actual copies were made of its [description of goods], the court could not conclude that the defendant had copied even the one [description of goods] for which a related fragment was found.
Similarly, here, Plaintiff received a copy of Defendant’s hard drive, on which it performed a forensic analysis. Its forensic expert, [name of officer], stated:
Using EnCase, I searched for the exact unique filenames of all the infringed works and found exact matches. Indeed, as the chart below illustrates, I located the torrent files for [number] of the [number] infringed works. Nearly every one of Plaintiff’s infringed works once existed on Defendant’s MacBook and had subsequently been deleted.
[Citation] (emphasis added). Defendant’s copying of “torrent files,” however, does not evidence copying the corresponding [description of goods] because a “torrent file” does not contain a copy of, or any part of, the actual [description of goods].
[Name of Officer]’s blanket statement that Plaintiff’s [description of goods] “once existed on Defendant’s MacBook” is pure unsupported speculation, as a “torrent file” does not contain the media file and does not evidence downloading. Just a few months ago in another similar Plaintiff case, Plaintiff made it abundantly clear that a “torrent file” does not contain an actual media file at all, and that “downloading a .torrent file correlated to a media file is not the same thing as downloading the media file itself.” Malibu Media, LLC v. Sharp, 8:14-cv-02138-VMC-MAP [81] (M.D. Fla. Oct. 19, 2015).
Essentially, a “torrent file” is no more similar to a video file than a 3x5 index card pulled from an old-style library card catalog would be to the book to which that card relates. In Sharp, the defendant had moved for sanctions after Plaintiff’s agent had admitted under oath to downloading “torrent files” to certain [description of goods], while separately, in discovery, Plaintiff denied having ever downloaded actual copies of those particular [description of goods]—the media files. In an effort to describe the difference between a “torrent file” and an actual [description of goods] file, Plaintiff explained how someone (including its own agent) can download a “torrent file” but never download the corresponding [description of goods]:
In the BitTorrent file distribution system, a torrent file is a computer file that contains metadata about files and folders to be distributed, and usually also a list of the network locations of trackers, which are computers that help participants in the system find each other and form efficient distribution groups called swarms. 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. A file with the TORRENT file extension is a BitTorrent Data file. TORRENT files contain information for how files should be accessed through the BitTorrent P2P network, much like a URL. Things like file names, locations, and sizes are included in a TORRENT file. The digital files that are downloaded using TORRENT files are not contained in the file itself, but instead are simply referred to through it.
[Citation] (bolded emphasis in original, italics added). There, Plaintiff explained that its agent downloaded “torrent files” only but never the actual [description of goods], and therefore sanctions were improper because Plaintiff did not lie under oath about having never downloaded the [description of goods] files. Notably, here, [name of Officer] allegedly uncovered only “torrent files” but failed to uncover on Defendant’s hard drive even a piece of any of the 31 videos. A “torrent file” is not a media file.
Plaintiff freely admits, “it is true that Plaintiff was only able to locate the .torrent files for its [description of goods] and not the actual [description of goods] themselves.” [Citation]. Plaintiff, however, attempts to diminish the fact that it cannot prove copying by stating that “Defendant admitted that he deleted all the Plaintiff’s [description of goods] he downloaded prior to producing his computer for examination.”8 Id. However, Defendant clearly stated that he did not recognize any of the [description of goods] at issue. [Citation].
Q: [Name of Defendant], I would like you to please review Exhibit-E. You’ve seen this list before; is that correct?
A.: Yes.
Q. I would like you to take a minute to review each and every title that is on this list and let me know when you’re done?
A. Yes. Okay.
Q. [Name of Defendant], did you download any of these [description of product]?
A. I don’t know.
Q. Using BitTorrent?
A. I don’t know.
Q. How do you not know?
A. I don’t recognize any of these titles.
Q. None of these titles are familiar to you?
A. No.
If Defendant had downloaded any of those [number] [description of goods] onto his computer, there would be evidence on that computer. “Portions of the downloaded files would have been recoverable during this search had they existed on [Defendant’s computer] in the live and organized folders and files that are part of the operating system or in unallocated space.” [Citation]. This is further evidenced by [name of Officer]’s admission that when a file is deleted the data remains in the unallocated space. [Citation]. [Name of Officer] said he was able to recover what he alleged to be evidence of other deleted Plaintiff’s [description of goods] and other files in Defendant’s unallocated space, but he found no evidence of the [number] [description of goods] in the complaint. Id.
In a declaration in support of Plaintiff’s reply to its own motion for summary judgment, [name of Officer] included several screenshots that indicated that he found evidence that some other Plaintiff’s titles had been “downloaded to completion and therefore existed on Defendant’s computer.” [Citation]. Those titles—the only Plaintiff [description of goods] [name of Officer] found to have actually been downloaded—are shown in the screenshots in [name of Officer]’s declaration, and highlighted with red boxes drawn around the file names. Id. Although those screenshots appear to show titles of Plaintiff [description of goods], they do not include any file names for the [number] [description of goods] at issue.9,10
This lawsuit was filed about [number] very specifically listed [description of goods] titles, all of which are listed in the amended complaint: [list of Plaintiff’s titles].
[Name of Officer] found no evidence of any of those [number] [description of goods] on Defendant’s hard drive. Id. In short, Plaintiff has no direct evidence that any of its [number] [description of goods] was ever present on Defendant’s computers.
Because Plaintiff cannot demonstrate that Defendant ever had any of the [number] [description of goods] downloaded on his computer, Plaintiff cannot demonstrate that Defendant ever actually copied Plaintiff’s works, an essential element to a copyright infringement. As Plaintiff cannot demonstrate this element, summary judgment in favor of Defendant is appropriate.
B. Plaintiff provides no evidence of when the 
alleged computer devices attached to the MacBook
In its motion for summary judgment, Plaintiff refers to evidence of other devices [name of Officer] alleges had at one point connected to Defendant’s MacBook and concludes that evidence of infringement must exist on those devices. Notably, however, [name of Officer] was unable to indicate when those devices actually connected to the MacBook. Plaintiff’s Interrogatory No. [number] specifically limited itself to computer devices used within the past two years.11 On [date], Plaintiff deposed Defendant and asked Defendant if he had any external storage devices. [Citation]. Defendant made clear in his deposition that he was unaware of any thumb drives he had anymore. Furthermore, Defendant stated that the external hard drive had been stored in his closet during the past two years. Therefore, this external hard drive was not used during the past two years. More importantly, on [date], Defendant provided Plaintiff with his hard drive. Plaintiff could have served a discovery request for the various devices that had allegedly connected to Defendant’s MacBook, yet failed to do so.
C. No jury could find that “torrent files” bear a 
substantial similarity to Plaintiff’s [description of goods]
“Even if the Plaintiff were able to offer evidence sufficient to raise an inference of copying, [Plaintiff] would also have to show that [the copies were] substantially similar in protected expression to [the works.]”Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1257 (11th Cir. 1999). Not all copying amounts to copyright infringement. Dream Custom Homes, Inc. v. Modern Day Const., Inc., 773 F. Supp. 2d 1288, 1301 (M.D. Fla. 2011), aff’d, 476 Fed. Appx. 190 (11th Cir. 2012). “Once copying is established, a plaintiff must show that the copying amounts to an improper appropriation by demonstrating that substantial similarities relate to protectable material.” Id. “Substantial similarity is determined from an ‘average lay observer’s’ point of view, i.e., ‘where an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.’ ”Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 829 (11th Cir. 1982); quoted by Dream Custom Homes, 773 F. Supp. 2d at 1301.
No properly instructed jury could find that the detected “torrent files” are substantially similar to the [number] [description of goods]. Just like a card from a card catalog would bear similarity to nothing more than the Dewey decimal number taped to a book’s spine, a “torrent file” contains only instructions on how to download a [description of goods]. Therefore, torrent files have no more similarity to [description of product] than a 3x5 card would have to, for example, a copy of Richard Adams’s Watership Down.
At most, the existence of “torrent files” on Defendant’s computer suggests that Defendant had an opportunity to copy the works. However, the Eleventh Circuit would then require Plaintiff to show that any copy made is substantially similar to the original copyrighted work. Herzog, 193 F.3d at 1248 (citing Benson v. Coca-Cola Co., 795 F.2d 973, 974 (11th Cir. 1986), reh’g denied, 801 F.2d 404 (11th Cir. 1986) (en banc)). Here, Plaintiff has not uncovered, nor can it uncover, any evidence that any one of Plaintiff’s [number] [description of goods] was downloaded on Defendant’s computer or in Defendant’s possession. Plaintiff has made it crystal clear that one can download a “torrent file” without subsequently downloading the [description of goods]. Without evidence of any video files on Defendant’s hard drive or in Defendant’s possession, Plaintiff cannot provide a copy for the trier of fact to review. Therefore, there is nothing for the trier of fact to compare to Plaintiff’s [description of goods] to determine substantial similarity. Plaintiff cannot meet its burden on this element of the copyright infringement cause.
Plaintiff has only provided evidence that Defendant downloaded instructions on how to download Plaintiff’s works. Possession of “torrent files” is not copyright infringement. Therefore, Plaintiff cannot prove the essential elements of a copyright infringement cause of action and summary judgment should be had in favor of Defendant.
D. Downloading a piece of a [description of goods] 
is not necessarily copyright infringement
Plaintiff has claimed that its investigator, [name of Agent], established a direct connection with Defendant’s IP address and downloaded one or more pieces from the digital [description of goods] files to “confirm[] through independent calculation that the file hash matched what is listed on Exhibit A,” thereby verifying that the collected data correlating to each file hash contained a copy of the [description of product] Defendant allegedly downloaded. [Citation].
Plaintiff provided “PCAP” files (“packet captures”) as evidence of the connection between IPP and IP address [ip address] and the piece of the film allegedly downloaded by Defendant. However, each PCAP is not representative of an entire video. [Citation] To begin, Plaintiff’s PCAP evidence, which Plaintiff alleges are the pieces of the video files allegedly intercepted by its agent as being transmitted through IP address [ip address] are miniscule in size compared to actual video files. For example, the size of the PCAP that allegedly corresponds to file hash No. [file number] recorded in that PCAP amounted to only [number] KB. Id. However, the size of the video file for the corresponding [description of goods], “[name of title],” is [number] KB—about 2000 times larger than the PCAP. Id. Therefore, Plaintiff has no evidence that anyone utilizing IP address [ip address], much less Defendant, downloaded the entire [description of goods] “[name of title].”12 Furthermore, each allegedly downloaded piece is so small in size that it could not be substantially similar to the [description of goods] itself. The purpose of the substantial similarity test is to determine whether a copy contains protectable expression. See Intervest Const., Inc. v. Canterbury Estate Homes, Inc., 554 F.3d 914, 920 (11th Cir. 2008). In truth, “a single piece, alone, is basically worthless; with only a single piece, you may not be able to see a frame.” [Citation] If the pieces Plaintiff’s agent allegedly intercepted from IP address [ip address] are unviewable, the substantial similarity test cannot even be performed to determine whether those pieces—which, again, were not even found on Defendant’s hard drive—bear any similarity. Therefore, Plaintiff cannot prove its copyright infringement cause of action. As such, summary judgment should be granted in favor of Defendant.
E. If Defendant had downloaded any of the [number] 
[description of product] files, Plaintiff’s expert witness 
would have uncovered at least pieces of those files 
or evidence of the downloading
Again, in searching Defendant’s hard drive, Plaintiff’s forensic expert did not find a single piece or even a fragment of any of the works.13 Plaintiff’s expert, [name of officer], and Defendant’s expert, [name of expert], both confirmed that not a single piece of any one of the [number] works existed or could be recovered from the unallocated files of Defendant’s hard drive. If such evidence ever did exist, some trail of evidence would have indicated such. [Name of officer] showed that he was fully capable of uncovering files that had been deleted, since he did uncover two other Plaintiff [description of goods] that were not among the [number] [description of goods]. [Citation] (“I searched the MacBook’s unallocated space for [description of goods]. I located two Plaintiff [description of goods] on Defendant’s hard drive, ‘[names of titles]’ [b]oth [description of goods] were in the unallocated space which confirms that the files were deleted.”). Additionally, the Officer boasted about finding evidence that “several Plaintiff titles were downloaded to completion and therefore existed on Defendant’s computer.” [Citation] However, [name of Officer]’s screenshots show that none of those Plaintiff titles—“[names of titles]”—correspond to the [number] [description of goods] at issue in this lawsuit. However, even though the Officer thoroughly searched the “unallocated space,” which he explained “is not viewable to the typical computer user and requires specialized computer forensic software to view and analyze,”14 he could not locate any one—or even a piece of one—of the [number] separate [description of product] files at issue in this lawsuit, nor could he locate any record that a download had ever been made of any piece of the [number] files.
F. No reasonable doubt can be found 
from the torrent files
Plaintiff may argue that evidence of the torrent files for [number] of [number] of the works on Defendant’s hard drive raises enough doubt that Defendant downloaded the works and therefore summary judgment for Defendant should be denied. On a motion for summary judgment, however, the Court must “draw inferences from the evidence in the light most favorable to the nonmovant and resolve all reasonable doubts in that party’s favor.” United States v. Pizano, No. 8:15-CV-284-T-EAK-TB, 2015 WL 2449591, at *1 (M.D. Fla. May 21, 2015) (emphasis added) (citing Speciality Malls of Tampa v. The City of Tampa, 916 F. Supp. 1222 (Fla. M.D. 1996)). Considering that Plaintiff’s thorough forensic search failed to uncover even a piece of any of the [number] [description of goods], even though Plaintiff’s expert searched in the unallocated space and found other deleted [description of goods], any such doubt would not be reasonable. It is abundantly clear that a torrent file is not a media file, and that a person can download a “torrent files” without ever having downloaded the corresponding media files, as Plaintiff’s agent did, for example, as aptly explained by Plaintiff. Therefore, there is no doubt that Plaintiff has no evidence to prove, and cannot prove, claim for direct copyright infringement against Defendant, and summary judgment should be entered in Defendant’s favor.
G. Attorney Fees
Lastly, Section 505 of the United States Code provides for an award of attorney fees as costs to the prevailing party in a copyright infringement action. Arthur Rutenberg Corp. v. Dawney, 647 F. Supp. 1214, 1216 (M.D. Fla. 1986) (citing 17 U.S.C. § 505). An award of attorney fees to the prevailing party in a copyright action is the rule rather than the exception. Hunn v. Dan Wilson Homes, Inc., 789 F.3d 573 (5th Cir. 2002).
H. Conclusion
As Plaintiff can only prove that torrent files correlating to the works were downloaded, Plaintiff cannot demonstrate copying or substantial similarity. Without this evidence, no jury properly instructed could find for Plaintiff on its copyright infringement cause of action. Therefore, the expense and delay of trial should be avoided and summary judgment should be had in favor of Defendant.
WHEREFORE, Defendant, [name of Defendant], pleads that this Honorable Court enter final summary judgment in favor of Defendant and award Defendant his costs, including attorney’s fees, pursuant to 17 U.S.C. § 505, as prevailing party.
ATTORNEY’S CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on [date],a true and correct copy of the foregoing has been served to Plaintiff’s attorney via the electronic filing system.
[names and contact information for counsel for Defendant]
Attorneys for Defendant