LOS ANGELESIt’s been more than 10 months since U.S. District Court Judge André Birotte, Jr. ordered VidAngel, the streaming video company that provided censored versions of hundreds of mainstream movies to its subscribersmovies it ripped off from companies such as Disney, Lucasfilm, Twentieth Century Fox, Warner Bros., MVL Film Finance LLC, New Line Productions, Inc., and Turner Entertainmentto cease operations and never again to circumvent copyguarding on DVDs, Blu-rays and other media; copy those movies by any other means onto its computers; or to engage in “streaming, transmitting, or otherwise publicly performing or, facilitating any third party in streaming, transmitting, or otherwise publicly performing, any Copyrighted Works over the Internet…; via web applications…; via portable devices…; via media streaming devices…; or by means of any other device or process.” Now, VidAngel is appealing that orderand of course, it doesn’t have a leg to stand on. Back in March, AVN summarized the movie owners’ June 2019 courtroom victory over VidAngel, where a jury took just three hours to find VidAngel guilty of the copyright infringement and order it to pay the studios it had ripped off $62.4 million in damages, and on September 5, 2019, Judge Birotte made permanent his temporary injunction against VidAngel continuing its illegal video piracy. Yesterday, however, VidAngel’s attorneys filed a brief supporting their motion to overturn Judge Birotte’s Order, claiming once again that its operationnay, business modelwas authorized by the Family Home Movie Act (FHMA) of 2005 (17 U.S.C. 110(11)), which supposedly exempts from copyright the “making imperceptible, by or at the direction of a member of a private household, of limited portions of audio or video content of a motion picture, during a performance in or transmitted to that household for private home viewing, from an authorized copy of the motion picture, or the creation or provision of a computer program or other technology that enables such making imperceptible and that is designed and marketed to be used, at the direction of a member of a private household, for such making imperceptible, if no fixed copy of the altered version of the motion picture is created by such computer program or other technology.” What that means is basically VidAngel’s entire business model, which is to copy copyrighted works to its servers, remove or “make imperceptible” any nudity shown or any words such as “goddamn,” “shit,” “pussy,” “bastard,” “fuck,” “queer” audible during the movie, and allow subscribers to hear and see that movie onlinesupposedly after buying a copy of the DVD or Blu-ray from VidAngel itself. Trouble is, the movie studios’ copyright of their movies give them the legal power to prevent others from censoring or in other ways altering the content of those movies, even if done for a “religious purpose,” as VidAngel has claimed it does and the FHMA specifically permits in certain cases. Even in its brief to overthrow the ban, however, VidAngel’s attorneys admit that, “Using third?party software, VidAngel decrypted one disc to create a ‘master file’ of video and audio content divided into tiny clips.” That’s illegal under the copyright laws, and even though VidAngel customers purchased “particular bar-coded copies” of the movies they wanted to watch from VidAngel, and used those bar codes to watch a censored version of the movie on VidAngel’s site, VidAngel actually “offered to repurchase the disc from the customer.” And while the brief doesn’t say how much VidAngel paid to buy the disc back from the customer, if the buyback was for what the customer paid for the disc in the first place, then VidAngel allowed that customer to watch the movie for free, in violation of the movie owner’s copyright. And even if VidAngel paid less than the purchase price, it’s still a violation. VidAngel claims it had legal advice approving of what it did, and that its attorney informed the movies’ owners of what the company was doing, but according to the brief, “Disney launched a secret investigation and began coordinating an effort to take down VidAngel.” After noting that Disney and the other companies VidAngel ripped off had filed a lawsuit, and after VidAngel responded that it “continued to believe in good faith, based on the advice of its counsel,” that its activities were lawful, nonetheless, according to the brief, “In the meantime, VidAngel sought to comply with the preliminary injunction by searching for a way to remove only Plaintiffs works from its Disc?based Service while continuing to make works not subject to the injunction available to customers.” In other words, didn’t matter that at least some of the movies it was ripping off hadn’t (yet) been sued over, the company was going to continue its illegal activities anyway. VidAngel is also a bit unhappy with the $62.4 million it’s been ordered to pay, claiming in the brief that, “The combined awards amounted to more than 296 times the most generous estimate of Plaintiffs actual damages of $211,000.” Finally, VidAngel is claiming that Judge Birotte’s Order was unnecessary because VidAngel had “unequivocally abandoned the Disc-based Service,” so “any prior need for injunctive relief was moot.” And of course without the Order, there’s no chance VidAngel would return to its old piracy ways, nohow no wayeven though the brief also claims that the injunction “is astoundingly vague and overbroad.” The brief contains plenty more excuses for VidAngel acting as it did, and why the Court erred in coming down on the company as hard as it did, but the bottom line is, unless this appeal is heard by a Ninth Circuit panel consisting mostly of Trump-appointed judges, this cause of action will be dead in the water. Supreme Court, here we (actually they) come! The VidAngel Ninth Circuit Appellate Brief may be read here.
written by: Mark Kernes