Last week Jason Schultz and I had the opportunity to watch the wheels of justice turn at a crucial stage in an Acacia patent infringement case. Acacia's legal adventures have become so intricate and expansive that witnessing them reminded me of the Charles Dickens novel Bleak House, which is about the victims of a decades-old court case called "Jardyce and Jarndyce" that never ends.

The victims of this modern-day Jardyce v. Jarndyce are the thousands of adult website owners that Acacia wants to gather into a "defendant class" in a giant patent infringement lawsuit. The hearing I attended -- presided over by the astute Judge James Ware for the Northern District of California -- was devoted largely to the question of whether Acacia would be allowed to sue adult website owners as part of a class action. Lawyers for Acacia claim that adult websites are almost universally infringing two patents for streaming media that Acacia owns. (Whether these patents are valid is a separate question -- experts are already challenging their validity.)

Creating a defendant class is already pretty weird, and is rarely done, but the idea of limiting a class to adult websites is even weirder. If Acacia wanted to sue as many defendants as possible in a single suit, why didn't it argue for a larger defendant class -- one that would include the thousands of university distance-learning programs, sports websites, and other media-streaming sites that the company has vowed to sue? In court, Acacia's lawyers claimed it was because no "legitimate" defendant would want to be part of the same class as adult website owners. This comment elicited a grimace from Spike Goldberg, an avid First Amendment activist and pornographer who works for one of the defendants in this case. It also led Judge Ware to ask two probing questions: first, why create a class based on a specific type of content when Acacia's patents have nothing to do with content; and second, how could it be appropriate to segregate a group of what the judge called "social misfits" into a separate trial, when they might be the victims of prejudice in a way that a mixed bag of people from sports or other media sites might not?

The questions were a lot to chew on, and led Acacia's lawyers to hem and haw about how the defendant class was actually just for "convenience." Meanwhile, the lawyers for the defense made it quite clear that consolidating this class would indeed result in prejudice. What jury would decide in favor of a porn site that's streaming sex videos, even if the patent claims are absurd? And if Acacia could get an easy ruling of infringement against pornographers, it would then gain ammunition to go after the more "sympathetic" targets, like universities.

This is yet another instance in which "separate" really means "unequal." "Social misfits" or not, people who run adult websites shouldn't be the all-too-easy fall guy for companies looking to game the system. Let's hope Judge Ware agrees.

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