Judge chides VidAngel lawyer over video played at infringement trial

As it became apparent that a damages trial, originally estimated to take two days, was heading for a second week, U.S. District Judge Andre Birotte expressed frustration directed largely at defendant VidAngel Inc.

"I have to tell you," Birotte said, in comments to VidAngel attorney Morgan Philpot, a Utah-based sole practitioner. "That was not OK, and I want to make sure that you understand that it was not OK. That was not fair, not appropriate, and far from what I'd expect from someone like you."

The comments came in response to improperly submitted video evidence presented by VidAngel during testimony from company co-founder Neal Harmon.

Throughout trial, VIdAngel's defense strategy has seemed oriented toward convincing the jury that company executives were earnestly looking to form good-faith partnerships with the studios to support a business model they truly believed in.

Under examination from Philpot and fellow VidAngel counsel Samuel Brooks of Call & Jensen, Daniel Harmon -- Neal Harmon's brother and fellow company co-founder -- told the jury about his humble beginnings and lifelong passion for movies.

Daniel Harmon said his mother used early models of parental control remotes to prevent he and his brothers from seeing objectionable content. Later, he said, he explained he began to develop VidAngel's business model out of a desire to share films with questionable content with his own kids.

Plaintiffs objected when VidAngel counsel sought to show a video created by company executives to explain the necessity of its business model.

The video, according to plaintiff counsel Rose L. Ehler of Munger, Tolles & Olson LLP, contained hearsay, including unverifiable statistics about the rise in violence and obscenity in film, inaccurate statements and inaccurate characterizations.

Philpot said the video wasn't being presented as factual evidence but to establish Neal Harmon's mindset in the wake of litigation. Rather than viewing the business as a cash grab, Philpot said the video showed Harmon believed in the business model and wanted to defend it.

Despite his initially great consternation, Birotte allowed the video to be played for the jury. Though he again criticized the way the video was introduced by VidAngel counsel, Birotte said he wouldn't penalize the mistake.

"On balance, it shows -- at least -- what Mr. Harmon's state of mind was as to the formation of the company," Birotte said. "It's not being offered for the truth of the matter but for limited purposes."

The plaintiffs -- a group of top studios including New Line Cinema, Marvel, and headed by Disney Enterprises LLC -- characterized the supposedly noble intentions of VidAngel's business model as an act. Disney Enterprises LLC v. VidAngel Inc., 16-cv-064109, (C.D. Cal., filed June 9 2016).

Presenting email exchanges between company administrators and its potential investors, the plaintiffs argued VidAngel wanted to use the Family Home Movie Act as a bulwark against litigation for copyright infringement.

Asked by Brooks under cross-examination to explain why Disney didn't take up VidAngel on requests made years ago to enter into a formal partnership, Disney Executive Vice President Chris Oldre challenged the validity of the question.

"We don't negotiate with pirates," Oldre said.

Eager to start the new week with a quick transition into deliberations, Birotte said he'd go past 5 p.m. on Friday to help reach that goal. Birotte also expressed certainty that the jury would be able to quickly move into deliberations after closing arguments Monday morning.