LOS ANGELES - "It's all a matter of who you believe," began attorney Al Gelbard in his final summation to the jury which would deliberate charges of video piracy leveled against Canadian distributor Alain Elmaleh and others by Evil Angel Video, Jules Jordan Video and their principals.
Gelbard, who began speaking at 1:30 Wednesday afternoon, had been warned beforehand to avoid too much minutiae in summarizing the facts of the case for the jury – and indeed, the trial which Gelbard and co-counsel Sean Mascias and Gary Gorham had originally predicted would take 20 days was instead shoehorned into a mere four days by U.S. District Court Judge S. James Otero.
It involved over two years of investigation by both Canadian and American authorities and interviews of dozens of witnesses, some of whom had testified at the trial via videotaped statements. For the plaintiffs, the witnesses included Evil Angel owner John Stagliano, Jules Jordan Video owner Jules Jordan, distributor Richard Arnold and representatives of several video replicators who had had business dealings, they said, with Elmaleh and/or his associates or related companies.
"You don't have to like pornography," Gelbard noted early on to the jury of nine, which consisted mostly of younger white males. And in fact, observers seemed to detect some disappointment on the part of several jurors that neither side played more sexually explicit footage in the courtroom – and what was played was short excerpts, mainly to show the difference between the plaintiffs' DVD-9 video product and the counterfeit DVD-5 discs at issue.
"We tried to bring our own video monitors into the courtroom to show the difference between our product and the counterfeits," Gelbard said in an interview, "but we weren't allowed to do that, so the court provided a second monitor for us to use, and I could see immediately that the two monitors just were not matched. I fiddled with the second monitor, and got the picture as close as I could to the first one, but they were still pretty different... And what I remember most was kneeling down, fiddling with the DVD players, while just above my head were the two screens, each with a freeze-frame of a close-up of a blowjob where we were demonstrating the difference in image quality between our disks and theirs. It was quite a moment."
And indeed, as Gelbard said in his closing argument, "The issue is not about the content, it's the quality."
The plaintiffs' contention is that Elmaleh, through his company Kaytel Distribution, bought roughly 60 Evil Angel and Jules Jordan titles; then, through replicator agent Gerald Ouzzan, had new glass master disks made of them by a company in Brea, California, Sylnet, and had those titles duplicated by the thousands for resale in both Canada and the U.S., with testimony focusing on several retail outlets located in New York City. Allegedly, one of the reasons the piracy was so successful was that the pirate – Elmaleh denies that it was himself – packaged the phony discs with DVD package inserts that were virtually indistinguishable from the genuine article. In fact, Jordan later said that the only reason he became aware of the piracy was that legitimate retailers had tried to return some of the phony discs as defectives to Jules Jordan Video for credit.
"Here's where we fit all of the pieces of the puzzle together," Gelbard told the jury ... and frankly, those pieces are too complicated to fit together here. But a large part of the discussion involved a company named Jacky's One Stop Distribution, a Canadian company headed by one Jacky Elkeslassy, but which the plaintiffs claim was financed and controlled by Elmaleh – a charge Elmaleh denies. However, Gelbard was able to produce invoices from both Jacky's One Stop and Kaytel that featured identical phone and fax number for both companies.
In his half-hour at the podium, Gelbard displayed roughly two dozen documentary exhibits from the trial, one of which he described as Elmaleh's "shopping list" of Evil Angel and Jules Jordan titles, which Elmaleh allegedly bought and sent out to have masters produced from them.
"He's got to pick 39 out of the 712 Evil Angel titles," Gelbard stated, and it was those titles that eventually found their way onto sales lists of various of the defendant companies, according to the plaintiffs.
Gelbard made note of the fact that there is not much documentary evidence directly linking Elmaleh to the transactions alleged to involve counterfeit discs, but, Gelbard said, "Someone who does what this man does doesn't want to create a paper trail."
However, the plaintiffs produced multiple documents involving illegal master discs from companies with which Elmaleh is alleged to have done business but whose owners and employees, the plaintiffs contend, were unaware that they were doing anything illegal.
Referring to those documents, Gelbard claimed, "The people engaged in lawful activity have no problem creating a paper trail."
After Gelbard concluded his presentation, his co-counsel Sean Macias took the podium and reminded the jury that the plaintiffs' burden is merely to show the culpability of the defendants by a "preponderance of the evidence; 50.1% is all we need."
Macias noted that his clients, Jules Jordan Video and Jordan himself (who is suing under his real name), never licensed duplication rights to his videos to Kaytel or any of the other defendants.
"You've got to follow the money," Macias stated. "The mastermind [of this operation] is someone who is smart, calculating, smooth and with money."
And according to Macias, that's Alain Elmaleh.
As for Jacky Elkeslassy, whom Gelbard described as "a clerk, a hairdresser," Macias termed him a minor player who was "at the wrong place at the wrong time with the wrong friend."
Macias also called attention to Jules Jordan's charge that Elmaleh violated Jordan's "right of publicity" be reprinting his name and likeness on the DVD package inserts.
"His voice and his likeness are in all these movies," Macias said.
It was a charge with which defense attorney Michael Plotkin took issue when it became his turn to sum up. Noting that in some of the videos, Jordan was exclusively behind the camera, and that only his voice could be heard on the DVDs, Plotkin said, "I don't know that Mr. [Jordan] is known for his vocal talents. I think he's better known for some of his other attributes."
Noting that he was not "going to muster up the kind of passion you've heard" from the plaintiffs' attorneys, Plotkin dismissed the plaintiffs' claim that his client had given commercial discs to Ouzzan to be mastered, and that Elmaleh wanted the transaction to be "hush-hush," but that those disks were then knowingly sold through Elmaleh's company Kaytel.
"Is it reasonable that one would distribute counterfeits with his company name on them?" Plotkin asked.
Of the various witnesses against his client, Plotkin said, "They lied through their teeth and they weren't even good at it."
Plotkin also disputed whether John Stagliano, whom he said he had great respect for, even had a valid copyright claim to the counterfeited material, since Evil Angel allegedly had a non-exclusive deal with Jordan for duplication and distribution. Plotkin also claimed that even Jordan himself didn't have a valid claim, charging that Jordan himself had simply done "work for hire" for his company, Jules Jordan Video.
"Both these copyright actions ... are without any foundation in the law," Plotkin intoned.
Plotkin essentially drew a picture of Elmaleh as an honest businessman surrounded by dishonest employees and associates operating behind his back, calling attention to the fact that Jacky Elkeslassy had personally delivered counterfeit DVDs to retailers in New York City – all relatives of Elkeslassy, Plotkin said – and carried back cash and checks to Canada, which plaintiffs claimed were turned over to Elmaleh.
Where was the cash, Plotkin wondered, then noted, "If you're accused of something and you haven't done it, the louder you scream about it, the more devilish you seem ... You can't prove a negative."
Describing his client as "a tough competitor and businessman in Canada," Plotkin claimed, "He's an easy man to poke at."
Gelbard and Macias then got about a half-hour to rebut some of Plotkin's statements, and the entire proceeding ended just before 4 p.m., with the judge reminding the jury, which began deliberations this morning, that whatever the jurors might feel personally about the adult industry, "they are entitled to their day in court."
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