The MPAA and file-hosting service Hotfile are gearing up for their trial in a U.S. court later this year and both parties are currently fighting over several final details. In a motion submitted to the court Hotfile asks the judge to prevent the MPAA from using "pejorative" terms including "piracy," "theft" and "stealing" as these could misguide the jury. The MPAA has protested, and notes that these words are commonly used to describe copyright infringement.

In August the MPAA scored a major victory in its case against file-hosting service Hotfile.

The file-hosting site was cleared of direct copyright infringement, but the movie studios won summary judgment on the issues of DMCA defense and vicarious liability. The remaining issues will be fought out in a trial later this year for which preparations are well underway.

The two parties are currently fighting over several trial related details, including which evidence can be presented and how. As part of this process, Hotfile has submitted a motion asking the court to prevent the MPAA from using pejorative terms such as ‘piracy,’ ‘theft’ and ‘stealing’.”

According to the file-hosting service these terms are derogatory and their use would therefore mislead the jury and possibly influence their judgment. Because of this, the terms should be excluded from the trial under rule 403.

“The Plaintiffs have declined to stipulate that they will refrain from the use of the terms ‘pirates’ or ‘thieves’ with respect to the Defendants or the founders of Hotfile, nor would they refrain from referring to those individuals as having engaged in ‘theft’ or ‘stealing’,” Hotfile’s lawyers write.

“Such derogatory comments fall well within the purview of Rule 403, which precludes the admission of evidence which is significantly more prejudicial than it is probative.”

According to Hotfile there is no ground to substantiate the use of terms such as “piracy” and “theft.”

“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.”

In a reply to Hotfile’s motion the MPAA points out that there is absolutely no reason to exclude words that are commonly used in cases related to copyright infringement. According to the movie studios the request is little more than an attempt to masquerade Hotfile’s wrongful actions.

“Terms like ‘piracy’ and ‘theft’ are commonplace terms often used in court decisions, statutes, and everyday speech to describe the conduct in which Hotfile and its users engaged, and for which the Court has already found Defendants liable,” MPAA’s legal team writes.

“Defendants, knowing that the conduct referenced by the words ‘theft’ and ‘piracy’ is opprobrious, want to block Plaintiffs from using words that denote such conduct. But it would be unreasonable to prohibit the Plaintiffs from using commonplace words to describe wrongful conduct simply because the conduct they describe is unsavory.”

The MPAA further notes that banning “piracy” and related terms from the trial would mean that witnesses can’t use the language they are used to in their day jobs. Instead, the studios and their witnesses would have to switch to “awkward phrases and euphemisms.”

“The relief Defendants request, moreover, would prejudice the Plaintiffs by forcing their witnesses to testify without using the words they employ as part of their everyday job responsibilities combating the online theft of their works,” the MPAA writes.

“Defendants insist that Plaintiffs’ witnesses must resort to awkward phrases and euphemisms rather than using the more commonplace terms that the witnesses typically use and the jury will readily understand. This is nearly impossible – references to terms like “piracy” are pervasive in the testimony and trial exhibits in this case.”

In addition, the movie studios point out that avoiding the terms will prove to be quite a challenge. For example, Warner’s corporate representative, who will testify in the trial, has the word “piracy” in his job title.

District Court Judge Kathleen Williams is expected to rule on this, and several other motions, within a few days.