A start-up that provides a technology that filters movies for profanity, violence and other objectionable content has vowed to take a copyright battle against Hollywood all the way to the U.S. Supreme Court after a federal judge granted an injunction blocking its service.
The injunction, sought by several of Hollywood’s largest studios, ordered Provo, UT’s VidAngel Inc., founded in 2013, to effectively shut down — though the service was still operating several days later. In his order, U.S. District Judge André Birotte of the Central District of California found that VidAngel violates the federal Digital Millennium Copyright Act (DMCA) by using a software to “circumvent a technological measure” designed to protect copyrighted movies and TV shows. Disney Enterprises, Inc. v. VidAngel Inc., 2:2016cv04109.
“VidAngel has not offered any evidence that the plaintiffs have either explicitly or implicitly authorized DVD buyers to circumvent encryption technology in order to view the DVD on a different platform such as VidAngel’s streaming service,” the district judge wrote.
VidAngel CEO Neal Harmon vowed to appeal. “Hollywood studios have followed a repeated pattern in their decades-long campaign to put movie filtering services out of business by seeking a shut-down decision in trial court,” Harmon wrote in a prepared statement. “Our customers have given us not just the mandate to fight this battle all the way to the Supreme Court, but the financial resources as well.”
VidAngel’s supporters include two dozen nonprofit groups led by The Parents Television Council. The company also brought in as general counsel David Quinto, the former Quinn Emanuel Urquhart & Sullivan partner who represented the Academy of Motion Picture Arts and Sciences for decades.
Studio attorneys Glenn Pomerantz and Kelly Klaus, partners at Los Angeles-based Munger, Tolles & Olson, represent Disney Enterprises Inc., Warner Bros. Entertainment Inc., Twentieth Century Fox Film Corp. and Lucasfilm Ltd. in the case filed earlier this year.
In a joint statement from Disney, Warner Bros. and Fox, the studios said: “This case was never about filtering. The court recognized that the Family Movie Act does not provide a defense to VidAngel’s infringing acts of ripping, copying and streaming copyrighted movies and TV shows. We look forward to defending the court’s decision against any appeal by VidAngel.”
The studios allege that VidAngel, an on-demand streaming service with more than 2,500 film and television titles including Star Wars: The Force Awakens and The Martian, is an unlawful $1-per-day video-on-demand rental service. VidAngel sells DVDs for $20 each but allows customers to sell them back for as much as $19 — resulting in a $1 charge.
VidAngel attorney Ryan Baker, managing partner of Los Angeles-based Baker Marquart, who also has brought antitrust counterclaims, called the case the latest attempt by Hollywood’s studios to dismantle the 2005 Family Movie Act, which exempts liability over technologies that allow viewers to filter movies and TV shows.
But in his injunction order, Judge Birotte said that statute isn’t a defense. “The statute clearly requires that a performance or transmission of filtered content must come from an ‘authorized copy’ of the motion picture. The digital content that Vid Angel streams to its customers is not from an authorized copy.”
After this issue went to press, VidAngel issued a press release saying that Judge Birotte denied its request to stay his injunction, and that the company would appeal to the Ninth Circuit for an emergency stay. In the Dec. 29 press release, VidAngel CEO Neal Harmon said: “VidAngel has received the District Court’s denial of our stay request and is complying. For the time being, movies will no longer be available for filtering. Because judges rarely grant a stay of their own orders, we fully expected the Court to rule this way, and had already commenced an expedited appeal of the preliminary injunction. VidAngel is now requesting an emergency stay of the injunction from the 9th Circuit Court of Appeals.”
Amanda Bronstad is a Staff Reporter for The National Law Journal, an ALM sibling of Entertainment Law & Finance, in which this article also appeared.
The views expressed in the article are those of the authors and not necessarily the views of their clients or other attorneys in their firm.