A judge presiding over a copyright infringement case brought by the Disney company against Hotfile Corp., issued a ruling recently which seems to run counter to the old saying about the impact of words.Hotfile asked the judge to prohibit Disney from using words like "theft," "stealing," or "piracy" at the triaI. In a pre-trial ruling, the judge agreed. Sort of.

Disney alleged in its complaint that Hotfile encouraged users to upload files to its site. At that point, Hotfile created five copies of each work and generated unique URLs for each copy. That meant anybody could access that URL and download  a free copy. Users who uploaded works that generated a lot of traffic received compensation. Disney said the uploaded files were invariably copyrighted works. In Disney's view, this meant Hotfile was paying people to upload infringing content.

In a "motion in limine" Hotfile asked the court to prohibit Disney from using pejorative terms at the trial. When a party files a motion in limine it asks the court to rule in advance on an evidentiary matter to avoid having to address the problem at trial. Parties can always object at trial, but as many trial lawyers say "you can't unring the bell." Once the jury hears it, the damage is done - even if the court sustains the objection. So parties file a motion in limine where the disputed evidence is especially harmful - if the court grants the motion the jury won't even hear it once.

Hotfile told the court that it was only accused of "vicarious” infringement, and so it would be unduly prejudicial to be accused of “piracy" or ‘theft.” Disney argued terms like “piracy" are common terms of art in the industry, and it should be allowed to use the terms in that manner.

The court ordered something of a compromise. It granted Hotfile's motion in part. Disney can't use "pejorative" terms. But it also ruled Disney may use "terms of art.” This probably means that the court will need to answer one additional question - which pejorative terms are truly common in the industry and which aren't? More to come.