(jpmarth)
In a case that’s been going on for three years, Malibu recently filed a motion [PDF] asking a federal court to block the defendant from using terms that it believes “would be unfairly prejudicial.”
Because Malibu makes porn — the alleged violation in this case involves something with the title “Pretty Back Door Baby” — and because it has filed thousands of lawsuits — what the company describes as a “proactive stance against on-line copyright infringement” — the company acknowledges that “it is no secret” that Malibu has been presented in a less than glowing light by some.
“Accordingly, Plaintiff has been referred to in many different negatively connoted ways, including: ‘copyright troll,’ ‘pornographer,’ ‘porn purveyor,’ and ‘extortionist,’” reads the motion. “Referring to Plaintiff at trial by any title except ‘Plaintiff’ or ‘Malibu Media’ would be unfairly prejudicial and would only serve to impede the impartial administration of justice.”
While one could understand the argument against using phrases like “troll” and “extortionist” in trial might be prejudicial, it’s a little difficult to understand why a company that makes pornography would fight against that label.
Thankfully, Malibu has an explanation.
“Although it is undisputed that Plaintiff creates ‘adult content,’ use of the aforementioned terms in this context is undoubtedly pejorative and invokes preconceived negative connotations,” explains a company that willingly chose to get into making erotic content, presumably with full knowledge of the stigma involved. “Such preconceived negative connotations may impart that Plaintiff’s works are not entitled to copyright protection or that Plaintiff should be treated differently under the law simply because of the industry that it is in. Such is not the case. Plaintiff’s copyrights are valid and Plaintiff deserves the same rights as any other federal court litigant.”
This last part is especially tricky, as some have argued that obscene materials can’t be copyrighted and thus, any sharing of that content would thus not be a violation of copyright.
By not allowing the defendant to bring up the term “pornography” in trial, Malibu appears to be trying to short-circuit any attempt to claim at trial that there was no copyright to begin with. The company proactively cites a handful of legal precedents to bolster their assertion that copyright exists regardless of the cultural, educational, or scientific value of the copyrighted content.
As Malibu notes, several courts have prevented the use of terms like “patent troll,” “lawsuit lottery,” or “shakedown.”
But in his response [PDF], the defendant argues in favor of using some version of the supposedly objectionable terms.
For example, he points to a case where the term “patent troll” was blocked, but where phrases like “patent assertion entity,” “company that does not make anything,” “company that does not sell anything,” or “licensing entity,” were allowed.
Thus, the defendant argues that describing Malibu as a “producer of pornographic films” is neutral, factual, and accurate.
Likewise, citing a definition of copyright troll as a party that is “more focused on the business of litigation than on selling a product or service or licensing their [copyrights] to third parties to sell a product or service,” the defendant says he should be able to point out that Malibu “is very focused on its copyright litigation business.”
“According to public record, Plaintiff has filed approximately 3,539 lawsuits in the United States District Courts,” reads the defendant’s response. “The Court is permitted to take judicial notice of Plaintiff’s litigation history. A court may take judicial notice of its own court documents and records… Accordingly, Defendant should be permitted to offer descriptions of Plaintiff’s litigation history, which are matters of public knowledge.”
There’s an irony to Malibu Media asking the court to prevent potentially prejudicial name-calling. Last year, it sought a protective order against the site Fight Copyright Trolls, and in court documents, it referred to the site as a “fanatical Internet hate group.”
Additionally, Malibu has no trouble using the lascivious-sounding titles of porn videos to convince defendants to settle. In fact, it recently went so far as to try to compel defendants to reveal the titles of non-Malibu porn sites and videos they had viewed in the apparent hope of using this unrelated information to embarrass them.
by Chris Morran via Consumerist
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