If well-respected companies like Netflix, Hulu, and DirecTV can develop profitable streaming platforms and pay for the content they stream, why are there still platforms going to great lengths to avoid compensating creators? Meet VidAngel. VidAngel is the latest in a long line of companies attempting to exploit limited, narrow exceptions in the law in order to profit from the use of copyrighted content without paying a dime to creators. And though it may look legitimate, its entire “business model” amounts to one thing: infringement.
In 2005, Congress passed the Family Movie Act (FMA), to allow “the making imperceptible… of limited portions of audio or video content of a motion picture … from an authorized copy of the motion picture.” This limited exception was created in response to a lawsuit filed in 2002 against ClearPlay, a company that sold DVD players which “mute the sound or skip over portions of movies during playback” at the behest of the consumer. Under the FMA, this sort of filtering is completely legal because the filtering occurs over an authorized copy of the movie, and the technology does not create a “fixed copy of the altered version.” On the other hand, in 2006, CleanFlicks, a filtering company which distributed edited copies of DVDs, was determined to be illegal. Under the FMA, it is legal to provide a device that filters content from an authorized copy, but CleanFlicks created and distributed unauthorized copies of films. And therein lies the difference.
That brings us to a 2016 lawsuit filed by several major movie studios, against VidAngel, a company that streams “filtered” copies of movies. Specifically, the studios allege that VidAngel decrypts copies of DVDs in violation of section 1201 of the DMCA, and after the customer selects the filters, streams the filtered copy of the movie over the internet—all without a license. VidAngel claims that its service is legal under the FMA, which it says protects “the right of families to filter and view content according to their personal preferences.” While it is true that the FMA authorizes certain filtering business models, it does not authorize VidAngel to decrypt DVDs, nor does it authorize unlicensed streaming. What’s at issue is the way VidAngel goes about achieving its end. In December 2016, a California district court sided with the studios and issued a preliminary injunction, forcing VidAngel to immediately stop its streaming service. VidAngel is now appealing that decision.
This case is not just about big film studios: it is about creators of all types, and those affected by the reach of copyright law extend far beyond the names of the parties involved in the present appeal. Creators and contributors to copyright-protected works come in all sizes and varieties. They rely on meaningful exclusive rights protected under the Copyright Act along with the narrow construction of any limitations.
For the reasons discussed above, yesterday, the Copyright Alliance filed an amicus brief asking the Ninth Circuit Court of Appeals to affirm the lower court’s decision preventing VidAngel from offering its streaming service in violation of the law. You can read our amicus brief here.
*UPDATE: On August 24, 2017, the Ninth Circuit affirmed the lower court’s injunction against VidAngel.
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