Ninth Circuit Says VidAngel’s Wings Made of Wax

(Angel image by in8finity)

“Drat! Phooey! Shucks!” must be what the folks at VidAngel are saying after this morning’s opinion was handed down by the Ninth Circuit Court of Appeals in Disney Enterprises v. VidAngel. Affirming the decision of a California district court, the panel agreed that the movie studio plaintiffs would very likely prevail on the merits in all of the triable issues in the case. Thus, the preliminary injunction ordered by the lower court will stand, and VidAngel will not be allowed to operate as it had been while the company considers whether or not they will take its case to trial. I’m going to bet they won’t.

See detailed description of VidAngel in post from February.

VidAngel had been running what amounts to an unlicensed, video on demand (VOD) service, streaming mainstream movies with a filtering option for customers who prefer not to experience swearing, nudity, blasphemy, and/or other “objectionable” material in their movies. Several major studios sued VidAngel for copyright infringement; and VidAngel sought to defend its model, with all the verve of Icarus, by means of some rather strenuous interpretations of the Family Home Movie Act (FMA), Section 1201 of the DMCA, and the fair use doctrine. The Ninth Circuit opinion is unambiguous in its disagreement with all of the defendant’s statutory interpretations. For instance, here’s a pull-quote regarding VidAngel’s defensed under the FMA:

“VidAngel’s interpretation would create a giant loophole in copyright law, sanctioning infringement so long as it filters some content and a copy of the work was lawfully purchased at some point. But, virtually all piracy of movies originates in some way from a legitimate copy. If the mere purchase of an authorized copy alone precluded infringement liability under the FMA, the statute would severely erode the commercial value of the public performance right in the digital context, permitting, for example, unlicensed streams which filter out only a movie’s credits.”

Like many tech businesses that depend on copyright infringement, VidAngel spent considerable effort trying to litigate its cause in the court of public opinion with a “Save Filtering” campaign. This is common practice: to sell the message that a particular business model is merely an extension of consumer rights. And although many of VidAngel’s fans are likely to view this decision as “anti-filtering,” those consumers should know that VidAngel violated at least three statutes, even without the filtering; and its attempt to argue their right to filter on behalf of consumers shoots far beyond the mark of either the intent or the language of the FMA.

It’s hard to imagine any VidAngel investors* are going to want to pursue what looks like an un-winnable case, but maybe they’ll be spared a worse fate. Because if they tried to put, say, Deadpool through their system, the place would probably explode.


*See comments.

© 2017, David Newhoff. All rights reserved.

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