Surprise: MPAA Told It Can't Use Terms 'Piracy,' 'Theft' Or 'Stealing' During Hotfile Trial

from the a-bit-of-good-news dept

Mon, Dec 2nd 2013 5:34am — Mike Masnick

I knew that Hotfile had been pushing for this, but I'm somewhat happily surprised to see Judge Kathleen Williams of the US district court in Southern Florida grant Hotfile's motion to bar the MPAA from using "pejorative terms" in its copyright infringement case against the company. Among the words that the movie studios cannot use in describing Hotfile's activity: "piracy," "theft" and "stealing." We've been pointing out for many years how the industry has been using these kinds of misleading terms to influence pretty much everyone to their side, even though the terms are not even remotely accurate. Hotfile had reasonably argued that such terms could negatively influence the jury:

In the present case, there is no evidence that the Defendants (or Hotfile’s founders) are ‘pirates’ or ‘thieves,’ nor is there evidence that they were ‘stealing’ or engaged in ‘piracy’ or ‘theft.’ Even if the Defendants had been found to have directly infringed on the Plaintiffs’ copyrights, such derogatory terms would add nothing to the Plaintiffs’ case, but would serve to improperly inflame the jury.

The MPAA tried to argue that these were commonly used, but apparently the judge realized that using these misleading words really would be unfair. Hopefully other courts follow suit.

188004334 MPAA Piracy Ban (PDF)188004334 MPAA Piracy Ban (Text)

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Filed Under: copyright, infringement, juries, pejorative, piracy, stealing, theft
Companies: hotfile, mpaa

61 Comments

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Rikuo (profile), 2 Dec 2013 @ 2:42am

Hands up if you expect the MPAA's filings to just be blank pieces of paper now ;)
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- That One Guy (profile), 2 Dec 2013 @ 3:57am
  
  Re:
  There might be a 'the' scattered around here and there, but yeah, without being able to use their buzzwords, their lawyers are going to have a real ball writing up their arguments, should be interesting to see what they come up with.
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  - Anonymous Coward, 2 Dec 2013 @ 6:50am
    
    Re: Re:
    They committed naval involuntary wealth redistribution.
    [ link to this | view in chronology ]
- Anonymous Coward, 2 Dec 2013 @ 6:08am
  
  Re:
  Nah, it'll just be lots of blank lines now.
  
  "The defendant _____ our property. They are ________ _______. They _____ money from us."
  [ link to this | view in chronology ]
  - Deranged Poster (profile), 2 Dec 2013 @ 9:10am
    
    Re: Re:
    Fun, Add Libs :D
    1) Cleaned
    2) Very
    3) Nice
    4) Received
    [ link to this | view in chronology ]
- crade (profile), 2 Dec 2013 @ 8:05am
  
  Re:
  Na, they still have their fraudulent reports to fall back on.. Now if they were actually forced to tell the truth, and not just prevented from this particular propaganda then they would be in trouble.
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- Crazy Canuck, 2 Dec 2013 @ 9:20am
  
  Re:
  Hotfile has murdered our bottom line. They are getting away with killing our profit and causing genocide of our business model!
  [ link to this | view in chronology ]
TheResidentSkeptic (profile), 2 Dec 2013 @ 4:38am

Fall back strategy
They will just go back to claiming Billions in "LOST SALES"
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- PaulT (profile), 2 Dec 2013 @ 5:48am
  
  Re: Fall back strategy
  Hopefully, any such claim will be immediately followed by a demand that they actually prove it for once.
  [ link to this | view in chronology ]
  - That Anonymous Coward (profile), 2 Dec 2013 @ 6:05am
    
    Re: Re: Fall back strategy
    They show proof all of the time, it is a matter of deconstructing that proof in which we find Grocery Baggers included in the workforce to plump up numbers.
    
    They often show lost sales by ignoring large sections of income as they keep playing games with words about licensing vs sales.
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    - crade (profile), 2 Dec 2013 @ 8:09am
      
      Re: Re: Re: Fall back strategy
      Well, they show stuff that morons in a hurry might mistake for proof anyway.
      
      They don't show lost sales either.. They show smoke and mirrors and tell you it's lost sales.
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      - Anonymous Coward, 2 Dec 2013 @ 6:11pm
        
        Re: Re: Re: Re: Fall back strategy
        yep, just like the report where the MPAA stated that the loss from "Piracy" was 7.5 trillion dollars. (More than the US Movie industry has made in it's entire existance.)
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        DannyB (profile), 4 Dec 2013 @ 11:37am
        
        Re: Re: Re: Re: Re: Fall back strategy
        $75 Trillion. Not a measly $7.5.
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  - Anonymous Coward, 2 Dec 2013 @ 6:15am
    
    Re: Re: Fall back strategy
    That might be difficult according to this study (pdf). It finds that for popular artists, file sharing has no impact on sales, but for the lesser known it can boost sales by up to 30%.
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    - PaulT (profile), 2 Dec 2013 @ 6:42am
      
      Re: Re: Re: Fall back strategy
      That's my point, in a sense. We hear these things being claimed all the time, but few studies actually back the claim up. Those that do appear to do so, as noted by TAC above, often rely on flimsy evidence or exaggerations, or just misrepresentations of what's actually concluded.
      
      Surely, it's not too much to ask that they should prove their most basic claim before they're able to take further negative actions that damage both the public and other companies alike. I'm not holding my breath, but it would be nice.
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  - Anonymous Coward, 2 Dec 2013 @ 9:36am
    
    Re: Re: Fall back strategy
    It's easy to come up with "proof" when your concept of math is to just to make up the numbers.
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    - Anonymous Coward, 2 Dec 2013 @ 1:35pm
      
      Re: Re: Re: Fall back strategy
      It's like New Math for morons.
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      - DannyB (profile), 4 Dec 2013 @ 11:39am
        
        Re: Re: Re: Re: Fall back strategy
        It's not like it, it is it.
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- McGreed (profile), 2 Dec 2013 @ 6:39am
  
  Re: Fall back strategy
  Can't wait till they show up with their Time Traveller arguments from the alternative timelines, which will show they are right....
  
  Or...maybe not...
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Ninja (profile), 2 Dec 2013 @ 5:32am

I'm picturing lawyers chuckling every time they need to talk about Hotfile activities.

It's an awesome decision since these words are misleading. Hotfile provides a storage and sharing service that people MAY use to INFRINGE on copyrights which has nothing to do with stealing or piracy.
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- That Anonymous Coward (profile), 2 Dec 2013 @ 6:06am
  
  Re:
  as was pointed out on TorrentFreak this means many of the people set to testify can't give their job titles.
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Violynne (profile), 2 Dec 2013 @ 5:54am

Too bad the court didn't force them to use the terms "innovation", "consumer demand", and "reasonable price" during this trial.

I'd love to have watched them sweat trying to do so.
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Anonymous Coward, 2 Dec 2013 @ 6:07am

...Is it wrong that I'm now picturing the MPAA's legal team like Richard Nixon's head in Futurama in the witness stand?
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- Anonymous Coward, 2 Dec 2013 @ 6:18am
  
  Re:
  No, that is the correct way to picture them.
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anonymouse, 2 Dec 2013 @ 6:12am

WOW
Next they will allow those being sued to show that even though there is more sharing of content(see what i did there) than at any other time in history they are still making record profits at the boxoffice. This will prove once and for all that sharing content for personal use is not doing one thing to harm the Content creators.

And when they come up with how dvd sales have dropped explain to them how that was an income stream they fought against for years and that if they only took advantage of the huge infrastructure of the internet they could convert those lost sales to actual sales. Nowhere on the internet is there a website where i can buy every movie ever created and that is where places like thepiratebay fill a gap that the industry refuses to fill, they do not want people to have access to older content...
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- jupiterkansas (profile), 2 Dec 2013 @ 10:05am
  
  Re: WOW
  I don't remember them fighting against DVD income. It was VHS they were scared of.
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Anonymous Coward, 2 Dec 2013 @ 6:14am

Yeah, right
We know they just will use these terms anyway.
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- Anonymous Coward, 2 Dec 2013 @ 6:55am
  
  Re: Yeah, right
  Their lawyer's probably aren't going to risk their legal license doing so. They'll just wait, see if they lose, then argue they should be allowed to use the terms when they appeal.
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Chris Rhodes (profile), 2 Dec 2013 @ 6:19am

Ha! The joke's on the court!
Those intellectual property rapists at Hotfile won't know what hit em!
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- Ninja (profile), 2 Dec 2013 @ 8:47am
  
  Re: Ha! The joke's on the court!
  FOR THE CHILDREN! Call them pedophiles.
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Anonymous Coward, 2 Dec 2013 @ 6:33am

and who wants to bet it still does?

who wants to be how soon into the proceedings?

who wants to bet how slow the judge will be to reprimand over it?
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kenichi tanaka (profile), 2 Dec 2013 @ 6:51am

It would be funny if all of those older cases get retrials because of this clarification. LOLS
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- Anonymous Coward, 2 Dec 2013 @ 7:02am
  
  Re:
  The RIAA/MPAA got what they wanted, death of the companies via legal fees trying to defend themselves. Most of them have no money to fund retrial.
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Anonymous Coward, 2 Dec 2013 @ 7:04am

dont forget who started using these terms, and why. it was done entirely to portray people as being the scum of the earth, even though this and every other business relies totally on them! if these fuckers can compare the copying of a movie that a person owns, to the true act of piracy, such as the invading of the Maersk Alabama, the capturing of and financial demands made for the safe return of the crew and the cargo of that ship, i'd be interested to learn how that comparison is made! the industries may well think that copying a movie is worth the total annihilation of a person, his finances and ultimately, in all probability, his life, i'm damned if i do!! and the politicians that have allowed the continuation of this and other terms that completely condone the disgraceful actions of an industry, the justification of the harm done to people, so as to get a name for themselves and introduce totally discriminate and unjust sentences for a natural human activity, should be the ones that face a court!
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ECA (profile), 2 Dec 2013 @ 7:16am

YEA..
Proper use would make..
"Improper USE of product/material"

the Word piracy is improper in the first place. IT was a derogatory and mis-used word.
Their were Very few Pirates by any understanding. MOSt were hired Raiders.
Thief, means you GAINEd something..which may be hard to prove.
And stealing is also fun.. try showing that the Claimant didnt GAIN for the loss.
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MPAA, 2 Dec 2013 @ 7:54am

Preview of MPAA's next filing
Hotfile is group of people similar to those guys with swords and cannons who sail the high seas looking for booty to bury in a treasure chests. They are like those guys who use weapons to encourage people to give them things in shadowy alleys at night. What they did is the same as those people who smash windows in an effort to retrieve items of intrinsic value without compensating the owners for said items.....
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Beta (profile), 2 Dec 2013 @ 8:02am

we dare you
I have mixed feelings about this.

Yes, the MPAA is making statements that are outright false, but I don't like the idea that the court is forbidding the use of certain words. If they want to claim that there was theft, let them make the claim. If the defendants disagree, they can object and rebut. If the judge finds the terms inappropriate, she can sustain the objection and give the plaintiffs a good dressing-down in front of the jury for making false claims. Repeat as necessary.
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- Anonymous Coward, 2 Dec 2013 @ 8:23am
  
  Re: we dare you
  That is exactly what this is though, a sustained objection, handled preemptively. The point of an making an objection is to have stricken from the record unfair questions and comments that were not supposed to be made in the first place. The problem with objections is that although it's stricken from the record and the jury isn't supposed to consider it in deliberation, the jury still hears it. This way the jury doesn't without getting in trouble for directly violating the court's order.
  
  What's also good about this is that this is as part of this case, this should set a legal precedent that may be able to be used in other cases.
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Anonymous Coward, 2 Dec 2013 @ 8:02am

How quickly people forget that in August of this year the court rendered an opinion granting summary judgment to the plaintiff's that Hotfile had engaged in unlawful activity under our copyright laws. The case now moves before a jury to render a verdict on damages due to the plaintiffs. Since the summary judgment award was premised on secondary liability, these so-called pejorative terms do not come into play since they do not relate, even as used by lay persons, to the essential elements of Hotfile's acts that led to the award against it and its principal.

IOW, you cannot call them pirates, but you can certainly use any and all "legal terms of art" that convey virtually the same meaning as is commonly understood within the lay community.
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- Anonymous Coward, 2 Dec 2013 @ 8:11am
  
  Re:
  Right. There's an important distinction that Mike is overlooking. Their liability was vicarious, meaning, it was imputed to them via their relationship with the direct infringers. We wouldn't call a boss a "manslaughterer" even if he is vicariously liable for the manslaughter caused by his agent. Sorry, but this isn't the huge victory the copy-haters think it is. They are still liable for the thefts, though they are not thieves themselves.
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Beta (profile), 2 Dec 2013 @ 8:16am

how to ruin an illusion
My favorite line:
Banning the terms would make it hard for MPAA�s lawyers and the witnesses to describe the events that took place, according to the movie studios.

By which they mean that it would make it hard for them to describe the events that didn't take place, at least not without consciously realizing that they were committing perjury. This reminds me of Lee Siegel's utterly beautiful statement about magic:
Real magic, in other words, is the magic that is not real, while magic that is real, that can actually be done, is not real magic.
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Anonymous Coward, 2 Dec 2013 @ 9:04am

That's OK. Larceny, purloining, absconding, hijacking and unjust enrichment should be descriptive enough terms.
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- Rapnel (profile), 2 Dec 2013 @ 9:10am
  
  Re:
  Funny how none of those words brings "copy" to mind.
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- jupiterkansas (profile), 2 Dec 2013 @ 10:10am
  
  Re:
  And burglars, robbers, looter, pilfer, swipe, and abscond with.
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- crade (profile), 2 Dec 2013 @ 11:12am
  
  Re:
  As opposed to you know, something they are actually charged with.
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- Anonymous Coward, 2 Dec 2013 @ 4:52pm
  
  Re:
  Do you actually have a list of things Hotfile stole?
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Anonymous Coward, 2 Dec 2013 @ 9:24am

While they're at it, they should be prohibited from using the terms "creativity" and "innovation" until they stop reinventing the wheel.
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- Anonymous Coward, 2 Dec 2013 @ 9:43am
  
  Re:
  Better idea, just prohibit them from using ANY words or phrases that they don't understand the meaning of. Only competent English is allowed. And while we at it only competent Math is allowed too.
  
  So now we get the MPAA's next argument...
  
  [crickets]
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Sunhawk (profile), 2 Dec 2013 @ 10:23am

Commonly used terms
Of course they're common-use by now... because you've been *pushing them since day one*. Just because you've been doing so for well over a decade doesn't mean it's not inaccurate.
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Anonymous Coward, 2 Dec 2013 @ 11:04am

do lawyer fees count as yearly losses?
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- crade (profile), 2 Dec 2013 @ 11:10am
  
  Re:
  They don't count anything measurable.. It screws up their system.
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  - Anonymous Coward, 2 Dec 2013 @ 1:37pm
    
    Re: Re:
    Legal fees for megacorps are calculable?
    
    I thought they were like the supermassive black hole of expenses! And that theyw ere underwritten by the stolen properties of artists everywhere!
    
    ...my world-view has crumbled.
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RD, 2 Dec 2013 @ 11:23am

Ok then, they dont get to use terms like "sale"
Ok, then, if they want it that way, then they also don't get to use terms like "own it now!" or "on sale now!" to try to get people to purchase their own copy, just to turn around and claim "oh, you don't OWN it, its a LICENSE!" and attempt to illegally restrict what you can do with it post-first-sale.
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- Anonymous Coward, 2 Dec 2013 @ 12:01pm
  
  Re: Ok then, they dont get to use terms like "sale"
  Sounds like a good troll lawsuit - sue them for false advertising for describing as on sale when they only license it.
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  - Alana (profile), 2 Dec 2013 @ 2:39pm
    
    Re: Re: Ok then, they dont get to use terms like "sale"
    Actually, sounds like a good lawsuit, period.
    
    Would love to see something like this brought to court.
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LAB (profile), 2 Dec 2013 @ 2:06pm

I am encouraged by this. It would seem that this suit is akin to charging a gun maker with murder.
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btrussell (profile), 3 Dec 2013 @ 4:08am

Might be surprising if you have no faith in the legal system, but I highly doubt that the Brown family were allowed to refer to OJ as the murderer or the killer when they sued him.

Did the prosecutor refer to OJ as the killer when OJ was on trial?
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Anonymous Coward, 3 Dec 2013 @ 7:56pm

Hotfile settles MPAA copyright case, agrees to $80 million in damages
Hotfile users made more than 2.9 billion downloads during the site's lifetime.
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Anonymous Coward, 22 Dec 2013 @ 9:36am

The problem with the concept of "Property"
Calling works "intellectual property" has problems similar to those involved in calling human beings "Property." It Takes a Village to enforce such ideas, it involves censorship, and the penalties are extremely high:

Code of Virginia 1849, Title 54, Crimes and Punishments, Chapter 198, Of Offenses Against Public Policy, Section 22.

If a free person, by speaking or writing, maintain that owners have not right of property in their slaves, he shall be confined in jail not more than one year, and fined not exceeding five hundred dollars. He may be arrested, and carried before a justice, by any white person.
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randy par�, 28 Dec 2013 @ 9:00pm

piracy is theft
To those who gleefully download the work of others, without permission or compensation & assist many more in doing the same:

If I write a novel and someone pirates it and shares it with millions, without my permission or compensation, should I, in your opinion, have any recourse or be able to seek any redress?

Or, should being a novelist just be considered a hobby?
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- btrussell (profile), 1 Jan 2014 @ 3:19am
  
  Re: piracy is theft
  Should they be paying a third party on your behalf for material, reproduction and shipping fees?
  
  Can these people pay you directly?
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