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Case 2:16-cv-04109-AB-PLA Document 188 Filed 07/03/17 Page 1 of 28 Page ID #:5727

1 GLENN D. POMERANTZ (SBN 112503)


glenn.pomerantz@mto.com
2 KELLY M. KLAUS (SBN 161091)
kelly.klaus@mto.com
3 ROSE LEDA EHLER (SBN 296523)
rose.ehler@mto.com
4 ALLYSON R. BENNETT (SBN 302090)
allyson.bennett@mto.com
5 MUNGER, TOLLES & OLSON LLP
350 South Grand Avenue, Thirty-Fifth Floor
6 Los Angeles, California 90071-1560
Telephone: (213) 683-9100
7 Facsimile: (213) 687-3702
8 Attorneys for Plaintiffs
9
UNITED STATES DISTRICT COURT
10
CENTRAL DISTRICT OF CALIFORNIA
11
WESTERN DIVISION
12
13
DISNEY ENTERPRISES, INC.; Case No. 16-cv-04109-AB (PLAx)
14 LUCASFILM LTD. LLC;
TWENTIETH CENTURY FOX FILM PLAINTIFFS OPPOSITION TO
15 CORPORATION and WARNER VIDANGELS MOTION TO
BROS. ENTERTAINMENT INC., CLARIFY OR CONSTRUCT
16 PRELIMINARY INJUNCTION
Plaintiffs and Counter- ORDER
17 Defendants,
Judge: Hon. Andr Birotte Jr.
18 vs. Date; July 24, 2017
Time: 10:00 a.m.
19 VIDANGEL, INC., Ctrm: 7B
20 Defendant and Counter-
Claimant. Trial Date: None Set
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1 TABLE OF CONTENTS
2 Page
3 INTRODUCTION ....................................................................................................... 1
4 BACKGROUND ......................................................................................................... 2
5 A. The Preliminary Injunction Is Correct, Clear And On Appeal ............... 2
6 B. VidAngel Waited Months To File This Motion, And Now
Demands A Hurry-Up Ruling ................................................................. 3
7
ARGUMENT ............................................................................................................... 4
8
I. VIDANGELS MOTION TO CLARIFY IS PROCEDURALLY
9 IMPROPER ....................................................................................................... 4
10 A. The Court Does Not Have Jurisdiction To Consider VidAngels
Request To Change The Preliminary Injunction .................................... 4
11
B. The Motion Seeks To Modify The Preliminary Injunction Order,
12 Not Clarify It ........................................................................................... 6
13 II. VIDANGELS PROPOSED CONDUCT IS COVERED BY THE
PRELIMINARY INJUNCTION ORDER AND WOULD VIOLATE
14 PLAINTIFFS RIGHTS .................................................................................... 8
15 A. VidAngels Making Of Multiple Copies Would Violate The
Order And Infringe Plaintiffs Reproduction Right................................ 8
16
B. VidAngels Streaming Of Plaintiffs Works From Master Copies
17 Would Violate The Order And Infringe Plaintiffs Public
Performance Right .................................................................................. 9
18
C. VidAngel Has Failed To Demonstrate Its Service Does Not
19 Circumvent And Falls Outside The Scope Of The Order..................... 12
20 D. The Court Has Already Found That VidAngels Unauthorized
Copying And Streaming Are Not Fair Uses ......................................... 13
21
E. The FMA Does Not Excuse VidAngels Infringing Conduct .............. 18
22
F. While Irreparable Harm Is Not At Issue Here, VidAngels
23 Service Threatens Harm, The Full Extent Of Which Cannot Be
Determined Without Discovery ............................................................ 19
24
III. OPEN QUESTIONS PRECLUDE GRANTING VIDANGELS
25 MOTION ON THIS RECORD ....................................................................... 21
26 CONCLUSION.......................................................................................................... 23
27
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1 TABLE OF AUTHORITIES
2 Page
3 FEDERAL CASES
4 A&M Records, Inc. v. Napster, Inc.,
5 239 F.3d 1004 (9th Cir. 2001) .............................................................................. 16

6 American Broadcasting Cos. v. Aereo, Inc.,


134 S. Ct. 2498 (2014).......................................................................................... 11
7
8 Atiyeh v. Filtex Corp.,
130 F. Supp. 196 (S.D. Cal. 1955) ......................................................................... 7
9
Britton v. Co-op Banking Group,
10
916 F.2d 1405 (9th Cir. 1990) ................................................................................ 5
11
Campbell v. Acuff-Rose Music, Inc.,
12 510 U.S. 569 (1994) ................................................................................. 14, 15, 16
13
Clean Flicks of Colo., LLC v. Soderbergh,
14 433 F. Supp. 2d 1236 (D. Colo. 2006) ........................................................... 15, 16
15 Cornucopia Prods., LLC v. Dyson Inc.,
16 No. CV12-0234-PHX-NVW, 2013 WL 12098786 (D. Ariz. June 20,
2013) ................................................................................................................... 6, 7
17
18 Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C.,
710 F.3d 579 (5th Cir. 2013) .................................................................................. 6
19
Elvis Presley Enters., Inc. v. Passport Video,
20 349 F.3d 622 (9th Cir. 2003) .......................................................................... 14, 15
21
In re Hendrix,
22 986 F.2d 195 (7th Cir. 1993) .................................................................................. 6
23 Hoffman v. Beer Drivers & Salesmens Local Union No. 888,
24 536 F.2d 1268 (9th Cir. 1976) ............................................................................ 5, 6
25 Ideal Toy Corp. v. Sayco Doll Corp.,
26 302 F.2d 623 (2d Cir. 1962) ................................................................................... 4

27 Lara v. Secy of Interior of U.S.,


820 F.2d 1535 (9th Cir. 1987) ................................................................................ 6
28
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1 TABLE OF AUTHORITIES
(continued)
2 Page
3 Leadsinger, Inc. v. BMG Music Publg,
512 F.3d 522 (9th Cir. 2008) .......................................................................... 14, 16
4
5 Mattel Inc. v. Walking Mountain Prods.,
353 F.3d 792 (9th Cir. 2003) ................................................................................ 14
6
McComb v. Jacksonville Paper Co.,
7
336 U.S. 187 (1949) ............................................................................................... 6
8
Monge v. Maya Magazines, Inc.,
9 688 F.3d 1164 (9th Cir. 2012) .............................................................................. 15
10
Natural Resources Defense Council, Inc. v. Sw. Marine Inc.,
11 242 F.3d 1163 (9th Cir. 2001) ................................................................................ 5
12 Pacific Bioscience Labs., Inc. v. Home Skinovations, Inc.,
13 No. C15-0689JLR, 2017 WL 1179392 (W.D. Wash. Mar. 30, 2017) ............... 6, 7
14 Perfect 10, Inc. v. Amazon.com, Inc.,
508 F.3d 1146 (9th Cir. 2007) .............................................................................. 14
15
16 RealNetworks, Inc. v. Streambox, Inc.,
No. 2:99-CV-02070, 2000 WL 127311 (W.D. Wash. Jan. 18, 2000).................. 12
17
18 Regal Knitwear Co. v. N.L.R.B.,
324 U.S. 9 (1945) ................................................................................................... 6
19
Regents of the Univ. of Cal. v. Aisen,
20 No. 15-cv-1766-BEN (BLM), 2016 WL 4681177 (S.D. Cal. Sept. 7,
21 2016) ....................................................................................................................... 6
22 Sharp v. Weston,
23 233 F.3d 1166 (9th Cir. 2000) ................................................................................ 6

24 Stein v. Wood,
127 F.3d 1187 (9th Cir. 1997) ................................................................................ 4
25
26 Ticketmaster L.L.C. v. RMG Techs., Inc.,
507 F. Supp. 2d 1096 (C.D. Cal. 2007) ................................................................ 19
27
UMG Recordings, Inc. v. MP3.com, Inc.,
28 92 F. Supp. 2d 349 (S.D.N.Y. 2000) .............................................................. 14, 16
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1 TABLE OF AUTHORITIES
(continued)
2 Page
3 Velo-Bind, Inc. v. Minnesota Mining & Manufacturing Co.,
647 F.2d 965 (9th Cir. 1981) .................................................................................. 7
4
5 Warner Bros. Entmt Inc. v. WTV Sys., Inc.,
824 F. Supp. 2d 1003 (C.D. Cal. 2011) .......................................................... 20, 21
6
Worldwide Church of God v. Phila. Church of God, Inc.,
7
227 F.3d 1110 (9th Cir. 2000) .............................................................................. 18
8
WPIX, Inc. v. ivi, Inc., 691 F.3d 275, 286 (2d Cir. 2012).......................................... 19
9
FEDERAL STATUTES
10
11 17 U.S.C. 106(1) ....................................................................................................... 9
12 17 U.S.C. 106(4) ..................................................................................................... 10
13 17 U.S.C. 1201(a) ..................................................................................................... 1
14
17 U.S.C. 1201(a)(1)(A) ........................................................................................... 2
15
17 U.S.C. 1201(a)(3)(A) ......................................................................................... 12
16
17
18
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1 INTRODUCTION
2 The Courts Preliminary Injunction Order is clear: it bars VidAngel from
3 circumventing access controls that protect Plaintiffs copyrighted works, and from
4 copying and streaming those works. The Order does not require clarification.
5 VidAngels self-styled Motion to Clarify improperly asks the Court to decide
6 prematurely the legality of modifications VidAngel claims it has made to its
7 unauthorized streaming service. VidAngel asks for this ruling on the basis of a
8 threadbare record of incomplete and untested representations made by its counsel
9 concerning technicalnot legalissues. The Motion also is improper because it
10 asks the Court to amend an Order that is before the Ninth Circuit, the court that now
11 has jurisdiction over the Order. Even the limited information VidAngel has
12 provided makes clear that its Motion must be denied. VidAngel admits that its new
13 service copies and streams without authorization. That is prima facie infringement
14 and would violate the Preliminary Injunction Order if VidAngel used Plaintiffs
15 works in the service. VidAngel repeats its fair use and Family Movie Act (FMA)
16 argument to justify its infringements. Those arguments are now before the Ninth
17 Circuit, and, in any event, are no more meritorious today than when this Court
18 previously rejected them.
19 VidAngel may also circumvent the technological protection measures
20 (TPMs) that control access to digital copies of copyrighted works streamed by
21 Licensed Streaming Services (LSSs) like Netflix, Hulu and Amazon. This, too,
22 would violate the Preliminary Injunction Order, as well as 1201(a) of the Digital
23 Millennium Copyright Act (DMCA). VidAngel is circumspect about how it
24 accesses digital copies of Plaintiffs works. Mr. Quinto says that VidAngel does
25 not decrypt. Declaration of David Quinto (Quinto 6/19 Decl.) 6.B n.1, filed
26 June 19, 2017 (Dkt. 182-1); see also VidAngels Mot. to Clarify (Mot.) at 2, 5, 12,
27 22 & n.6 (Dkt. 182). But the DMCA prohibits more than decrypting; it also bars
28 any conduct that avoids, bypasses or impairs a TPM, even if there is no decryption.
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1 Plaintiffs asked VidAngel for targeted discovery to investigate how VidAngel


2 accesses the digital copies and other issues that are directly relevant to this Motion.
3 VidAngel would not agree to produce all of the relevant informationraising more
4 questions about what VidAngel is trying to hide.
5 As before, VidAngel makes its Chicken-Little argument that anyone who
6 objects to VidAngel building a business based on copyright infringement must be
7 opposed to filtering. And, once again, VidAngel is wrong. VidAngels latest
8 lawyer-driven scheme is just another attempt to enrich VidAngels principals in
9 disregard of the copyright laws. 1
10 BACKGROUND
11 A. The Preliminary Injunction Is Correct, Clear And On Appeal
12 1. The Courts Opinion
13 The Court found that Plaintiffs have a strong likelihood of success on all three
14 of their claims: VidAngel violates 1201(a)(1)(A) of the DMCA by circumventing
15 the TPMs that control access to Plaintiffs copyrighted works, Order Granting Pls
16 Mot. for PI (Order) at 8 (Dkt. 144); VidAngel infringes Plaintiffs exclusive
17 reproduction rights by copying the works, id. at 10; and VidAngel infringes
18 Plaintiffs exclusive public performance rights by streaming performances of the
19 works to its users, id. at 11. The Court rejected VidAngels arguments, among
20 others, that its performances were private, and that either the FMA or the fair use
21 defense excused VidAngels unlawful conduct. Id. at 12-16.
22
1
23 VidAngel says this will not be the last Motion to Clarify it will file. VidAngel
also intends to ask the Court to change the Preliminary Injunction Order to allow
24 VidAngel to make unlimited streams of content to users of VidAngels disc-based
25 service who allegedly checked their discs out for so long that their dollar-a-day fees
reached $20. Because both Motions to Clarify concern the same Preliminary
26 Injunction Order and implicate a number of the same procedural and substantive
27 issues, Plaintiffs asked VidAngel to consolidate both motions. VidAngel refused
Plaintiffs request. Declaration of Kelly M. Klaus (Klaus Decl.), filed
28 concurrently 12-14 & Exs. A & B.
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1 The Court also found that VidAngels infringing service irreparably harmed
2 Plaintiffs. This conclusion turned not only on VidAngels interference with
3 Plaintiffs windowing strategies, but also on the fact that VidAngels unauthorized
4 appropriation of Plaintiffs rights harmed Plaintiffs relationships and goodwill with
5 licensees. Id. at 18.
6 2. The Preliminary Injunction
7 The Preliminary Injunction enjoins VidAngel from:
8 (1) circumventing technological measures protecting Plaintiffs
9 copyrighted works on DVDs, Blu-ray discs, or any other
10 medium;
11 (2) copying Plaintiffs copyrighted works, including but not
12 limited to copying the works onto computers or servers; [or]
13 (3) streaming, transmitting or otherwise publicly performing or
14 displaying any of Plaintiffs copyrighted works over the Internet.
15 Order at 22 (emphasis added). The Order is clear and requires no clarification.
16 3. The Preliminary Injunction Order Is On Appeal
17 On December 14, 2016, VidAngel noticed its appeal of the Preliminary
18 Injunction Order to the Ninth Circuit. Dkt. 148. VidAngels appeal challenges the
19 Order on numerous grounds that are also the subject of the instant Motion. See
20 Argument Section I.A, infra. The appeal was argued and submitted on June 8,
21 2017.
22 B. VidAngel Waited Months To File This Motion, And Now Demands
A Hurry-Up Ruling
23
24 VidAngel argues that Mr. Quintos January 2017 e-mail disclosed to Plaintiffs
25 the changes VidAngel claims to have made, and that Plaintiffs therefore cannot
26 complain about having to respond to this Motion without the benefit of discovery.
27 VidAngel is wrong.
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1 Mr. Quintos email did not describe the service he now purports to describe in
2 his declaration. For example, in January, Mr. Quinto said that VidAngel would not
3 create any server copies during the tagging process. Quinto 6/19 Decl. Ex. A.
4 According to Mr. Quintos June 19 declaration, however, VidAngel does make
5 server copiesat least eight of themfor each movie or television show it copies
6 and streams during the tagging process. Id. 6.E. Further, Mr. Quintos email
7 discussed a hypothetical, non-existent service, as Plaintiffs pointed out at the time.
8 But VidAngel spent months after Mr. Quintos email building its actual service in
9 secret. VidAngel had a working version of its new technology internally by April
10 2017 and with invited customers a month later. Declaration of David Quinto
11 (Quinto 6/22 Decl.) 6, filed June 22, 2017 (Dkt. 184-1). Yet VidAngel waited
12 until June 19 to file its Motion.
13 ARGUMENT
14 I. VIDANGELS MOTION TO CLARIFY IS PROCEDURALLY
IMPROPER
15
16 The Court does not have jurisdiction to hear VidAngels Motion, which asks
17 the Court to change an Order that is on appeal. VidAngel cannot avoid this bar by
18 characterizing the Motion as simply a motion to clarify the Preliminary Injunction
19 Order. The Order is unambiguous and does not require any clarification.
20 A. The Court Does Not Have Jurisdiction To Consider VidAngels
Request To Change The Preliminary Injunction
21
22 The general rule is that the filing of a notice of appeal divests a district
23 court of jurisdiction over those aspects of the case involved in the appeal. Stein v.
24 Wood, 127 F.3d 1187, 1189 (9th Cir. 1997). After an appeal is filed, jurisdiction
25 passes to the appellate court, and the appellant is not usually entitled as of right to
26 present new evidence or argument to the trial court, which in the exercise of a sound
27 discretion will exercise jurisdiction only to preserve the status quo as of the time of
28 appeal. Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623, 625 (2d Cir. 1962)
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1 (emphasis added). The district court has jurisdiction to clarify or change the scope
2 of its injunction only to the extent that doing so (1) d[oes] not materially alter the
3 status of the case on appeal and (2) preserve[s] the status quo. Natural
4 Resources Defense Council, Inc. v. Sw. Marine Inc., 242 F.3d 1163, 1166 (9th Cir.
5 2001); see also Hoffman v. Beer Drivers & Salesmens Local Union No. 888, 536
6 F.2d 1268, 1276 (9th Cir. 1976).
7 VidAngels Motion does not satisfy these requirements. First, VidAngels
8 Motion would materially alter the status of the appeal. VidAngel is expressly asking
9 the Court to revisit numerous issues that are the subject of the appeal, including:
10 (1) whether copying for the claimed purpose of promoting filtering is fair use;
11 (2) whether VidAngels streaming is a private performance under the Supreme
12 Courts Aereo decision; and (3) whether the FMA provides a defense to VidAngels
13 unauthorized copying and streaming. See generally VidAngel Opening Br., No. 16-
14 56843 (9th Cir. Jan. 27, 2017) (Dkt. 42). VidAngel asks this Court to reverse or
15 modify its earlier ruling on these and other issues. Were the Court to grant
16 VidAngels request, this could lead to the Ninth Circuit addressing a moving
17 target in reviewing the pending appeal. Britton v. Co-op Banking Grp., 916 F.2d
18 1405, 1412 (9th Cir. 1990).
19 Second, VidAngel asks the Court to change the status quo, not preserve it.
20 The Preliminary Injunction Order bars VidAngel from copying and streaming
21 Plaintiffs works. VidAngel wants the Court now to lift that bar, and allow it to
22 copy and stream those works. The Order also bars VidAngel from circumventing
23 TPMs that control access to Plaintiffs works. As explained below, VidAngel has
24 not provided the Court and Plaintiffs with sufficient information to know how
25 VidAngel is accessing works from the LSSs and whether in that process VidAngel
26 is circumventing access control measures. VidAngels requested relief therefore
27 could also change the status quo by allowing VidAngel to circumvent.
28
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1 The Motion does not address whether the Court has jurisdiction to change the
2 Order in light of the appeal. VidAngel instead relies on cases referring to a partys
3 ability to ask the Court to clarify an order. In those cases, either there was no appeal
4 or the requested clarification did not alter the status quo. 2
5 B. The Motion Seeks To Modify The Preliminary Injunction Order,
Not Clarify It
6
7 Even if there were no pending appeal, the Motion is not properly one to
8 clarify. A party may ask the district court to clarify ambiguous language that
9 could cause unwitting contempts. Cornucopia Prods., LLC v. Dyson Inc., No.
10 CV12-0234-PHX-NVW, 2013 WL 12098786, at *2 (D. Ariz. June 20, 2013). If the
11 moving party has not pointed to any language in the [] injunction that is ambiguous
12 or needs clarification . . . [c]larification is unnecessary. 3 Pacific Bioscience Labs.,
13 Inc. v. Home Skinovations, Inc., No. C15-0689JLR, 2017 WL 1179392, at *3 (W.D.
14 Wash. Mar. 30, 2017) (denying motion where moving party failed to demonstrate
15 that the injunction is unclear).
16
2
See McComb v. Jacksonville Paper Co., 336 U.S. 187, 192 (1949) (explaining that
17 the defendant could have sought clarification when [t]here was no appeal); Regal
18 Knitwear Co. v. N.L.R.B., 324 U.S. 9, 15 (1945) (explaining that parties in the dark
as to their duty toward the court could seek clarification; case did not involve
19
pending appeal); Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710
20 F.3d 579, 586 (5th Cir. 2013) (citing Regal Knitwear but not involving context of
pending appeal); In re Hendrix, 986 F.2d 195, 200 (7th Cir. 1993) (motion for
21
clarification appropriate in case not involving pending appeal); Lara v. Secy of
22 Interior of U.S., 820 F.2d 1535, 1543 (9th Cir. 1987) (district court may enforce its
judgment pending appeal); Hoffman, 536 F.2d at 1276 (district court allowed to
23
maintain the status quo and enforce its prior order); Regents of the Univ. of Cal. v.
24 Aisen, No. 15-cv-1766-BEN (BLM), 2016 WL 4681177, at *1 (S.D. Cal. Sept. 7,
2016) (granting motion to clarify when defendants and special master expressed
25
questions; no appeal was pending).
26 3 To the extent VidAngel is actually asking this Court to modify the Order,
27 VidAngel bears the burden of establishing that a significant change in facts or law
warrants revision or dissolution of the injunction. Sharp v. Weston, 233 F.3d 1166,
28 1170 (9th Cir. 2000).
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1 The Preliminary Injunction Order is clear: VidAngel may not circumvent


2 access controls that protect Plaintiffs works, and it may not copy or stream those
3 works. VidAngel is not asking for clarification. It is asking the Court to grant the
4 equivalent of a declaratory judgment that its new service is legal, in a hurry-up
5 motion with no discovery.
6 Courts routinely deny motions to clarify that are disguised motions for
7 declaratory relief. For example, in Velo-Bind, Inc. v. Minnesota Mining &
8 Manufacturing Co., 647 F.2d 965 (9th Cir. 1981), the enjoined party moved to
9 clarify an injunction to state that a particular product would not constitute an
10 infringement of either of the two mechanical patents in suit. Id. at 974. The
11 district court denied the motion, expressing reluctance to engage in a summary
12 procedure of this nature. Id. The Ninth Circuit affirmed, concluding that the
13 defendants request was less one for clarification or modification than one for a
14 summary adjudication of an infringement claim. Id. Numerous other courts have
15 followed the same reasoning. Cornucopia Prods., 2013 WL 12098786, at *2
16 (denying motion to clarify that required determination of infringement because
17 [t]hat kind of careful evaluation . . . should not be performed under the guise of
18 clarifying an injunction that is already clear); Pacific Bioscience Labs., 2017 WL
19 1179392, at *3 (declining to entertain motion to clarify because resolving the
20 question presented would require the court to carefully evaluate the [new product
21 claimed to be non-infringing]); Atiyeh v. Filtex Corp., 130 F. Supp. 196, 197 (S.D.
22 Cal. 1955) (cited in Velo-Bind, 647 F.2d at 974) (request to clarify was in essence a
23 disguised action for a declaratory judgment; [t]he defendants[] method would
24 seem to circumvent the [rights holders] right to a trial of the fact issues by a jury).
25 VidAngel argues that Plaintiffs told the court that VidAngel could seek
26 modification so long as it created some different system that doesnt violate the
27 DMCA. VidAngels Opp. to Pls Ex Parte App. at 4 (Dkt. 184) (quotation
28 omitted). Plaintiffs counsel did not say that curing the DMCA violation would cure
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1 all of VidAngels illegal conduct; or that if VidAngel cured the DMCA violation
2 alone, VidAngel could file a motion (like the instant Motion) that seeks to amend
3 the preliminary injunction and change the status quo pending resolution of the
4 appeal. Counsel instead pointed out that, even if the Ninth Circuit were to affirm on
5 the basis of the DMCA violation alone, the court should not permit VidAngel to
6 copy and stream from copies that were the fruits of the DMCA violation. Quinto
7 6/22 Decl. Ex. H, at 24-25. The hypothetical scenario counsel was discussing has
8 no application here, where VidAngel may still be circumventing, and where the
9 Order clearly bars VidAngel from copying and streaming Plaintiffs works.
10 II. VIDANGELS PROPOSED CONDUCT IS COVERED BY THE
PRELIMINARY INJUNCTION ORDER AND WOULD VIOLATE
11 PLAINTIFFS RIGHTS
12 Based on the limited facts VidAngel has provided, it is clear that the
13 Preliminary Injunction Order would bar VidAngels proposal to copy and stream
14 Plaintiffs works. The Order may also bar how VidAngel is accessing movies from
15 the LSSs. VidAngel has provided insufficient information to confirm whether it
16 circumvents, but if it does, the Order would prohibit that conduct. Plaintiffs believe
17 the admissions VidAngel has made in its Motion provide more than an adequate
18 basis to deny the Motion, but if there is any doubt, discovery is required before any
19 other determination can be made.
20 A. VidAngels Making Of Multiple Copies Would Violate The Order
And Infringe Plaintiffs Reproduction Right
21
22 VidAngel concedes that it creates a master copy of each work it offers its
23 users, and also eight different bitrate copies of that master copy. Quinto 6/19
24 Decl. 6.C n.2 (the framebuffer version is essentially a digital copy of the video
25 created from the video stream); id. 6.D (VidAngel tagger saves the created copy
26 of the motion picture to a cloud storage location.); id. 6.E (Working from the
27 copy, the VidAngel tagger then generates eight versions of the movie.); see also id.
28
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1 6.F n.6 ([p]lacing the temporary copy); id. 6.H (The keyframe generator . . .
2 copies each segment).
3 VidAngel may also create many additional copies by uploading the multiple
4 bitrate copies to content delivery network (CDN) servers. Quinto 6/19 Decl. 6.J
5 (VidAngel next uploads the encrypted segments to a content delivery network).
6 CDN servers are located across the country to provide faster delivery of content
7 based on the location of the users. Declaration of Robert Schumann (Schumann
8 Decl.) 12, filed concurrently. The service that VidAngel describes therefore may
9 make and store many additional copies (how many VidAngel does not say) of
10 content across these CDNs. Id.
11 VidAngel admits that this system of making master copies and distributing
12 them across servers for streaming is no different from the copying at issue in
13 VidAngels prior service. Quinto 6/22 Decl. 6. This Court has already held that
14 the same copyingmaking copies of Plaintiffs works onto a computer system and
15 third-party serversviolates Plaintiffs exclusive right to reproduce the
16 copyrighted work in copies. Order at 9 (citing 17 U.S.C. 106(1)).
17 VidAngel wants to relitigate this issue, arguing that its master copies are
18 somehow necessary for filtering, and thus that its copying is fair use. Fair use does
19 not apply. See Section D, infra. But even if it did, VidAngel is not limiting its
20 copying to just the copying necessary to filter. VidAngel makes different bitrate
21 version copies and potentially many more copies across CDN servers around the
22 country to facilitate its streaming of these master copies from its servers. Schumann
23 Decl. 9, 11-12. The Order clearly enjoins VidAngels copying of Plaintiffs
24 works.
25 B. VidAngels Streaming Of Plaintiffs Works From Master Copies
Would Violate The Order And Infringe Plaintiffs Public
26 Performance Right
27 VidAngel admits it is streaming from its own master copies of works that
28 VidAngel has created on its own servers rather than layering its filters over an
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1 authorized stream from the licensed streaming services. VidAngels Opp. to Pls
2 Ex Parte App. at 5 (quotation omitted). This Court has already held that streaming
3 from master copies violates Plaintiffs exclusive right of public performance. Order
4 at 11 (citing 17 U.S.C. 106(4)).
5 VidAngel is not adding filters to an authorized LSS stream. Rather, there are
6 two separate streams. The first is from the LSS to VidAngel; that first stream
7 terminates with VidAngel. The second stream is made by VidAngelnot the
8 LSSto users from the master copies VidAngel illegally made. 4 The distinction
9 between the LSSs stream and VidAngels stream is as follows:
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
4
25 ClearPlay recently started providing filters for licensed steams from Amazon.
Based on the limited investigation that Plaintiffs have been able to undertake thus
26 far, it appears ClearPlay applies filters to streams as they are made from Amazon
27 (unlike VidAngels applying filter to streams it makes from master copies it has
made). Schumann Decl. 37-40. VidAngel thus appears to be wrong once again
28 that infringing conduct is necessary if one is to provide filters for streamed content.
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1 VidAngel again argues that dicta from American Broadcasting Cos. v. Aereo,
2 Inc., 134 S. Ct. 2498, 2510 (2014), allows VidAngel to stream without a license
3 because VidAngels users purchase the right to watch streamed content from an
4 LSS, and therefore are owners or possessors of the relevant product. Mot. at 19.
5 VidAngel is simply reprising another meritless argument it made in opposing
6 Plaintiffs motion for the preliminary injunction. In opposing that motion,
7 VidAngel argued that its users own[ed] or possess[ed] the movies on discs that
8 VidAngel purportedly sold them, and that VidAngel therefore was making purely
9 private performances when it streamed the underlying content from VidAngels
10 own master copies. See VidAngel Opp. to Pls Mot. for PI at 11 (Dkt. 42). The
11 Court rejected VidAngels attempt to evade the public performance right:
12 Assuming arguendo that VidAngels buy/sellback service creates a
valid ownership interest in a DVD, this ownership would only apply to
13
the physical DVD, not the digital content that VidAngel streams to
14 paying subscribers. Subscribers view a stream from a master copy
stored on a server, not a DVD temporarily owned by the user.
15
Furthermore, lawful ownership of a DVD only conveys authorization to
16 view the DVD, not to decrypt it for the purpose of viewing it on an
alternative platform. . . . Therefore, VidAngels customers are not
17
lawful owners or possessors of the digital content that is streamed via
18 VidAngels service.
19 Order at 11.
20 VidAngels current Motion directly challenges the Courts ruling on the
21 public/private performance issue, which is currently on appeal. As discussed, the
22 pendency of that appeal divests this Court of jurisdiction to consider VidAngels
23 reargument. In any event, the Courts prior analysis applies. If a VidAngel user has
24 paid for the right to access a stream from Netflix, Amazon, or another LSS, the
25 users right extends to the stream from the copy controlled by the LSS. But
26 VidAngel does not stream from the LSS copy. It streams from the copy that
27 VidAngel created and stores on its own servers. The stream from the LSS, like the
28 unopened DVDs and Blu-ray discs that VidAngel stores in the vault, are not
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1 accessed by the user. Like the unopened discs, the stream from the LSS is window
2 dressing for VidAngels convoluted, lawyer-driven architecture. See Schumann
3 Decl. 25-29.
4 VidAngels proposed violation of the Order and of Plaintiffs public
5 performance right is clear.
6 C. VidAngel Has Failed To Demonstrate Its Service Does Not
Circumvent And Falls Outside The Scope Of The Order
7
8 VidAngel asserts that its new service does not decrypt the motion picture,
9 and from this argues that the DMCA is not implicated by VidAngels proposed
10 course of conduct. Quinto 6/19 Decl. 6.B n.1 (emphasis added); id. 2, 8, Ex.
11 A; Mot. at 2, 5, 12 & n.6 (VidAngel does not circumvent any encryption
12 technology) (emphasis added); id. at 22; Quinto 6/22 Decl. 3, 7; VidAngels Opp.
13 to Pls Ex Parte App. at 1, 5.
14 Circumvention is not limited to decrypting an encrypted work. [T]o
15 circumvent also includes, inter alia, to avoid, bypass, remove, deactivate, or
16 impair a technological measure, without the authority of the copyright owner. 17
17 U.S.C. 1201(a)(3)(A). Encryption on DVDs and Blu-ray discs is one type of TPM
18 that effectively controls access to copyrighted works, but it is not the only one.
19 Streaming technologies use a variety of TPMs, including Digital Rights
20 Management (DRM) technologies, to effectively control access to the copyrighted
21 movie or television show that is being streamed. Schumann Decl. 16-19; see
22 also, e.g., RealNetworks, Inc. v. Streambox, Inc., No. 2:99-CV-02070, 2000 WL
23 127311, at *2 (W.D. Wash. Jan. 18, 2000) (describing security measures). If
24 VidAngel is circumventing TPMs to access content from the LSSs, then VidAngels
25 accessing of Plaintiffs works from LSS streams would violate the Preliminary
26 Injunction Order and the DMCA, even absent decryption. See Streambox, 2000 WL
27 127311, at *7-10 (granting preliminary injunction against manufacturer of device
28 that circumvented TPMs on Internet streams).
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1 To assess whether VidAngel is circumventing, Plaintiffs and the Court would


2 have to know or review, among other things, all of the following: (1) what are all
3 the LSSs (other than Amazon) from which VidAngel accesses and copies content;
4 (2) what media player is VidAngel using or accessing to view the content from each
5 specific LSS; (3) what DRM is included in the media player (e.g., Microsoft
6 PlayReady, Apple FairPlay, Adobe Access, etc.); (4) what third-party tools and
7 technology, if any, is VidAngel using to access the video stream and create its
8 framebuffer copies; and (5) what instructions does VidAngel provide its
9 employees who access and copy the streams from the LSSs. Schumann Decl. 9,
10 13-24.
11 Following the Courts June 23 Order, Plaintiffs initiated a meet-and-confer,
12 and asked VidAngel to produce this information. Mr. Quinto offered to give
13 Plaintiffs access to VidAngels source code and third party tools, but otherwise
14 rejected Plaintiffs requestsincluding Plaintiffs requests to see the written
15 instructions VidAngel gives its employees and taggersas a fishing expedition.
16 Klaus Decl. 3-11, Ex. A. Mr. Quintos offer did not provide Plaintiffs with the
17 information necessary to determine whether VidAngel continues to circumvent.
18 Schumann Decl. 23-24. Given the serious questions involving VidAngels
19 possible circumventionand VidAngels failure to provide information sufficient to
20 make an assessmentVidAngel has failed to establish that it does not circumvent.
21 D. The Court Has Already Found That VidAngels Unauthorized
Copying And Streaming Are Not Fair Uses
22
23 The Court has already considered and rejected VidAngels fair use defense,
24 and that decision is pending before the Ninth Circuit. By this Motion, VidAngel
25 proposes to make unauthorized copies from content streamed by an LSS instead of
26 from a DVD or Blu-ray disc. VidAngels copying remains infringing, as does
27 VidAngels streaming from unauthorized master copies VidAngel has made. The
28
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1 infringing conduct proposed is no more protected by fair use than the conduct that
2 was the subject of this Courts Order and that is the subject of VidAngels appeal.
3 Even if the Court were to reach the fair use issue (which it should not, see
4 Section I, supra), VidAngel has failed to carry its burden of establishing that its
5 creation of numerous master copies of Plaintiffs works and its streaming from those
6 copies would be fair use. See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146,
7 1158 (9th Cir. 2007) (proponent of fair use defense bears burden of proving it).
8 1. Purpose And Character Of The Use
9 As this Court explained, the purpose and character of use factor in the fair
10 use inquiry asks to what extent the new work is transformative and does not
11 simply supplant the original work and whether the works purpose was for or not-
12 for-profit. Order at 13 (citing Mattel Inc. v. Walking Mountain Prods., 353 F.3d
13 792, 800 (9th Cir. 2003) (citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569,
14 579 (1994)). 5 A commercial, non-transformative use is presumptively unfair. Id.
15 (citing Leadsinger, Inc. v. BMG Music Publg, 512 F.3d 522, 545 (9th Cir. 2008)).
16 VidAngel is making copies to offer its users the same intrinsic entertainment
17 value that is protected by Plaintiffs copyrights. Elvis Presley Enters., Inc. v.
18 Passport Video, 349 F.3d 622, 629 (9th Cir. 2003); see also Order at 14. Its use is
19 not transformative. Elvis Presley Enters., 349 F.3d at 629; see also UMG
20 Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349, 351 (S.D.N.Y. 2000)
21 (MP3.com simply repackages plaintiffs works to facilitate their transmission
22 through another medium. While such services may be innovative, they are not
23 transformative.). And VidAngels use is admittedly commercial.
24
25
26 5
VidAngel itself recognized that [t]he central inquiry in evaluating the purpose and
27 character of the use of a copyrighted work is to determine whether and to what
extent the new work is transformative. See VidAngel Opp. to Pls Mot. for PI at
28 19 (citing Campbell, 510 U.S. at 579).
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1 VidAngel argues that its purpose is to enable consumers to enjoy the benefits
2 conferred by Congress in the FMA. Mot. at 13. The court in Clean Flicks of
3 Colo., LLC v. Soderbergh, 433 F. Supp. 2d 1236, 1241 (D. Colo. 2006), evaluated
4 the same question with respect to permanently filtered copies of motion pictures
5 in the wake of the FMA and held that fair use did not apply. See also Order at 14
6 (relying on Clean Flicks in holding that filtering is not transformative). Congress
7 passed the FMA to establish a right way and a wrong way to filter, balancing the
8 interests of filtering and copyright holders. VidAngel asks this Court to create an
9 exception to copyright when Congress did not create such an exception. VidAngels
10 claim that it copies for the purpose of filtering does not make its infringing use fair.
11 Under the correct standardwhich the Court has applied and which is the
12 subject of VidAngels appealthe purpose and character of the use factor weighs
13 decisively against VidAngel. 6
14 2. Nature Of The Copyrighted Work
15 VidAngel acknowledges that motion pictures are within the core of
16 copyright protection. Mot. at 15 (citing Elvis Presley Enters., 349 F.3d at 629).
17 [F]air use is more difficult to establish when works at the core of copyright are
18 copied. Order at 14 (citing Campbell, 510 U.S. at 586).
19 3. Amount And Substantiality Of The Portion Used In Relation To
The Copyrighted Work As A Whole
20
21 Because VidAngel copies Plaintiffs works in their entirety, this factor weighs
22 strongly against fair use. See Monge v. Maya Magazines, Inc., 688 F.3d 1164, 1180
23 (9th Cir. 2012) (no fair use where defendant copied photographs in their entirety);
24 see also Order at 14-15 (performance of the heart of a copyrighted work weighs
25 against a fair use determination).
26
27
6
VidAngel refers repeatedly to PlayOn and Boxee, but no court has said those
28 services have made fair uses of copyrighted works.
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1 VidAngel tries to avoid controlling law on the third factor by arguing that if,
2 as the Court has previously held, VidAngels copying is not transformative, the third
3 fair use factor is irrelevant. Mot. at 16. VidAngel cites no authority for this rule,
4 and there is none. To the contrary, the Supreme Court has made clear that the
5 extent of permissible copying varies with the purpose and character of the use, i.e.,
6 the third factor harken[s] back to the first of the statutory factors (transformation).
7 Campbell, 510 U.S. at 586-87. Given that VidAngels use is not transformative, the
8 amount of permissible copying under this factor is zero or close to zero. VidAngels
9 argument that zero percent transformation justifies 100 percent copying is absurd.
10 4. Effect Of The Use Upon The Potential Market For Or
Value Of The Copyrighted Work
11
12 The question of market harm is whether unrestricted and widespread
13 conduct of the sort engaged in by the defendant . . . would result in a substantially
14 adverse impact on the potential market for the original. Order at 15 (citing
15 Campbell, 510 U.S. at 590). When the intended use is for commercial gain and
16 the use is non-transformative, the likelihood of market harm may be presumed.
17 Id. (citing Leadsinger, 512 F.3d at 531). This factor weighed against VidAngel
18 before, and it weighs against VidAngel now. Order at 15-16.
19 VidAngel insists that its unauthorized copying and streaming can only
20 increase Plaintiffs market without harming Plaintiffs. Mot. at 18. The Ninth
21 Circuit (and other courts) have held, however, that [a]ny allegedly positive impact
22 of defendants activities on plaintiffs prior market in no way frees defendant to
23 usurp a further market that directly derives from reproduction of the plaintiffs
24 copyrighted works. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1017 (9th
25 Cir. 2001) (quoting MP3.com, 92 F. Supp. 2d at 352); see also Clean Flicks, 433 F.
26 Supp. 2d at 1242 (same).
27 In all events, VidAngel offers no evidence showing that its conduct will
28 increase the value of Plaintiffs works. VidAngels prior survey evidence says
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1 nothing about whether users are more likely to subscribe to an LSS because of
2 VidAngels service. See Mot. at 18.
3 Moreover, even with the near-total absence of information about how
4 VidAngel interacts with its users, there is reason to believe that VidAngel is
5 diminishing the market value of Plaintiffs works. VidAngel inserts itself between
6 the LSS and its users: the stream the users receive comes from VidAngel, not from
7 the LSS. This raises the risk of significant market harm to Plaintiffs. See
8 Declaration of Tedd Cittadine (Cittadine Decl.) 7-12, filed concurrently. LSSs
9 businesses depend on direct engagement with their customers. Id. 9. For
10 example, based on customers viewing histories, LSSs will often recommend other
11 content that the customer may enjoy. Id. VidAngel streams from the master copy
12 that it created, and VidAngels stream therefore does not involve the user-specific
13 engagement mechanisms (such as automatically playing the next episode in a
14 television series) that the LSSs stream would include. Schumann Decl. 30.
15 VidAngels interposition of itself between the LSS and the user thus interferes with
16 the LSSs relationship with its customers, and this in turn negatively affects the
17 relationships between Plaintiffs and the LSSs, which are Plaintiffs licensees.
18 Cittadine Decl. 11-12.
19 Further, as discussed in more detail below, to protect their brands and the
20 continued development of the on-demand streaming market, Plaintiffs strive to
21 ensure that their licensees provide a high-quality consumer experience. Cittadine
22 Decl. 19-23. But VidAngel admits that its service is of lower quality.
23 VidAngels Opp. to Pls Ex Parte App. at 7. If consumers have a poor experience
24 with VidAngel, they may be less likely to engage in on-demand streaming in the
25 future, including streaming from an LSS. The way that VidAngel operates its
26 service may exacerbate this problem, as it may lead customers to believe
27 (incorrectly) that the stream they receive from VidAngel is actually coming from an
28 LSS. See Klaus Decl. Ex. M (consumer question about how VidAngel access[es]
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1 Netflix content for filtering without an API and VidAngels response that
2 VidAngel built [its] own technology to enable filters on Netflix streams)
3 (emphasis added).
4 The most that can be said for VidAngel regarding the fourth fair use factor is
5 that it is inconclusive without discovery. Given that the other three fair use factors
6 weigh for Plaintiffs, VidAngel cannot prevail as a matter of law on this defense. See
7 Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110, 1120 (9th
8 Cir. 2000) (rejecting fair use defense where [t]he first three factors weigh in
9 [plaintiffs] favor and the fourth factor is, at worst, neutral).
10 E. The FMA Does Not Excuse VidAngels Infringing Conduct
11 VidAngel renews its argumentmade first to this Court and later to the Ninth
12 Circuit in the pending appealthat the FMA excuses its infringing conduct.
13 VidAngel admits that it streams from a master copy and not from an authorized
14 copy of the movie or television show. As the Court previously ruled, the FMA
15 does not protect unauthorized copying or public performances. Order at 12.
16 VidAngel argues that the copies are authorized by virtue of the customers
17 purchase of a download or subscription from the LSS. This is the same argument
18 VidAngel made about the DVDs and Blu-ray discs it stores in its vault that this
19 Court rejected. Moreover, each LSS authorizes the users access to a copy or stream
20 in accordance with its own terms of service. The terms of service for the two LSSs
21 that VidAngel mentions in its papersAmazon and Netflixboth explicitly bar
22 copying movies they stream. Klaus Decl. 15-16, Exs. C (Netflix Terms 6.f) &
23 D (Amazon Terms 4.l). In addition to being unauthorized by Plaintiffs,
24 VidAngels copies are unauthorized under the LSSs terms of service.
25 VidAngel also argues its master copies are authorized copies by virtue of
26 the fair use defense. As demonstrated, VidAngel has not established its fair use
27 defense for the master copies it creates. VidAngels reliance on the FMA remains
28 unavailing.
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1 F. While Irreparable Harm Is Not At Issue Here, VidAngels Service


Threatens Harm, The Full Extent Of Which Cannot Be
2 Determined Without Discovery
3 This is not a motion for a preliminary injunction, and Plaintiffs do not have to
4 establish irreparable harm to defeat the Motion. Plaintiffs already established
5 irreparable harm in obtaining the Preliminary Injunction Order. VidAngel,
6 however, suggests that the Courts conclusion of irreparable harm necessarily
7 disappears because VidAngels current offering would not interfere with Plaintiffs
8 windowing of their titles or directly undercut the prices LSSs charge. But those are
9 not the only harms that VidAngels infringing copying and streaming cause. Even
10 without the benefit of discovery from VidAngel, it is clear that its retooled service
11 would likely cause many of the same harms that its disc-based service did. 7
12 First, VidAngels service continues to threaten Plaintiffs relationships and
13 negotiating position with LSSsboth of which cause irreparable harm. See
14 Ticketmaster L.L.C. v. RMG Techs., Inc., 507 F. Supp. 2d 1096, 1115 (C.D. Cal.
15 2007) (irreparable harm includes damage to goodwill); see also WPIX, Inc. v. ivi,
16 Inc., 691 F.3d 275, 286 (2d Cir. 2012) (unrestrained unauthorized retransmissions
17 would encourage other services to follow suit, and, among other things, diminish
18 plaintiffs negotiating position with licensees). Plaintiffs relationships with LSSs
19 are critically important: Plaintiffs success is very much intertwined with the
20 success of their [licensees] business. Cittadine Decl. 8. The business of an LSS
21 depends on engagement with its users. Id. 9. By inserting itself between the LSS
22 and the consumer, VidAngel undermines that engagement, which negatively affects
23 Plaintiffs relationships with LSSs. Id. 11.
24 Second, VidAngel may place Plaintiffs works at risk of piracy. Plaintiffs
25 stand to be irreparably harmed if their content is not protected when streamed or
26 distributed over the Internet. Cittadine Decl. 14, 18. For this reason, Plaintiffs
27
7
To the extent harm were relevant to this Motion, discovery would be required to
28 assess the full extent of that harm. See Section G, infra.
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1 rigorously vet LSSs security protocols and negotiate security and protection
2 requirements, such as audit rights, before granting a license. Id. 16. A Plaintiffs
3 vetting and ongoing monitoring of an LSS allows it to protect its content from
4 unauthorized access and piracy. Id. 15. VidAngel says only that it encrypts its
5 streams, but provides no details about the extent of that encryption or whether
6 VidAngel uses DRM mechanisms. Schumann Decl. 34-36. Again, Plaintiffs
7 asked VidAngel to provide information relevant to these issues, and VidAngel
8 refused. Klaus Decl. 5.d, 9-10 & Ex. A. 8
9 Third, Plaintiffs stand to be irreparably harmed by services that offer[] a sub-
10 optimal customer experience and, thus, tarnish[] customers perception of video on
11 demand as an attractive option for viewing Plaintiffs Copyrighted Works. Warner
12 Bros. Entmt Inc. v. WTV Sys., Inc., 824 F. Supp. 2d 1003, 1014 (C.D. Cal. 2011)
13 (Zediva). Plaintiffs negotiate with streaming services for quality controls and
14 guarantees to ensure customers have the optimal experience viewing their content.
15 Cittadine Decl. 19. This is important to further the market for on-demand
16 streaming and to protect Plaintiffs brands. Id. 19-23.
17 VidAngel concedes this harm is real and that VidAngels quality is
18 suboptimal. VidAngels Opp. to Pls Ex Parte App. at 7 (Sadly, there is some
19 merit to Plaintiffs last concernquality control.). Based on the limited
20 information Plaintiffs have been able to obtain from public sources, VidAngel could
21 hardly contend otherwise. Klaus Decl. Exs. E-H (consumer complaints from
22
23
24
8
25 VidAngels suggestion that Plaintiffs had complete discovery into all relevant
DRM and security issues in connection with discovery on the preliminary injunction
26 motion is wrong. The parties agreed to limited, expedited discovery in connection
27 with that motion. Plaintiffs have not had full discovery concerning all of the DRM
or security measures that VidAngel is usingor omitting to usein its revamped
28 service.
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1 VidAngels social media pages and VidAngels public description of technical


2 issues).9
3 VidAngel nevertheless argues that any harm is Plaintiffs fault because they
4 refuse to license to VidAngel. That is wrong. An infringer cannot blame the party
5 whose rights it violates for the substandard quality of the infringers service.
6 Fourth, by telling its users that its new service is lawful, VidAngel threatens
7 to confuse consumers regarding the legitimate streaming market. See Zediva, 824 F.
8 Supp. 2d at 1013 (Zediva threatened to create incorrect but lasting impressions
9 with consumers about what constitute[d] lawful video on demand exploitation of
10 copyrighted works.). VidAngel has continued to defend its prior streaming service,
11 and the instant iteration of that service, as legal to customers who question it. Klaus
12 Decl. Ex. J (VidAngel blog), Ex. K (interview with Variety.com). Consumers
13 continue to reflect confusion regarding whether its infringing service is nonetheless
14 legal. Id., Ex. L (VidAngel and user Facebook posts).
15 III. OPEN QUESTIONS PRECLUDE GRANTING VIDANGELS
MOTION ON THIS RECORD
16
17 Plaintiffs asked VidAngel to provide targeted discovery of documents in
18 VidAngels exclusive possession that relate to multiple issues requiring further
19 investigation. The categories of requested documents include manuals and
20 employee instructions to determine whether VidAngel is circumventing; documents
21 concerning VidAngels interposition of itself between the LSSs and users, which
22 relate to questions of harm (fair use factor four); documents regarding VidAngels
23 use of security and DRM measures, which relate to harm (to the extent irreparable
24 harm is relevant on this Motion); documents regarding customer complaints, which
25 also relate to irreparable harm; and documents evidencing whether and how
26
27
9
Plaintiffs asked VidAngel to produce communications with customers regarding
28 quality issues. VidAngel refused this request as well. Klaus Decl. 5.e & Ex. A.
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1 VidAngel abides by LSSs terms of service, which relate to, at a minimum,


2 unauthorized copying and streaming. Klaus Decl. 5 & Ex. A.
3 VidAngel, through Mr. Quinto, offered to provide Plaintiffs only restricted
4 access to its source code and the tools it uses in its service. VidAngel rejected the
5 remainder of the requestsincluding Plaintiffs request to review VidAngels
6 internal instructions about how the service works, documents concerning DRM and
7 content security measures, and user communications about quality and reliability
8 as a fishing expedition. Klaus Decl. 9. This is no fishing expedition but a
9 targeted attempt to get discovery that is exclusively in VidAngels control and that
10 is directly relevant to the merits of this Motion.
11 VidAngel argues that Plaintiffs are not entitled to discovery now because they
12 already obtained discovery with respect to VidAngels disc-based service. See
13 VidAngels Opp. to Pls Ex Parte App. at 5; Klaus Decl. Ex. A. But Plaintiffs
14 discovery requests address the changes that VidAngel has made to its service,
15 including: (1) how VidAngel acquires content from an LSS (rather than a disc) and
16 whether VidAngel engages in circumvention of the stream from the LSS; (2) how
17 VidAngel interposes itself between the LSS and the LSSs subscriber, and the
18 impact that this interposition has on the LSS; (3) quality and reliability issues with
19 VidAngels revamped service; and (4) the DRM and security measures, if any, that
20 VidAngel uses when it accesses, copies, stores and streams content. That Plaintiffs
21 previously received expedited discovery with respect to a service that obtained
22 content and interfaced with users differently does not limit Plaintiffs right to
23 discovery with respect to the service that is the basis for the instant Motion.
24 VidAngels stonewalling of Plaintiffs legitimate discovery requests itself justifies
25 the denial of VidAngels Motion.
26 VidAngel has not provided good cause for short-circuiting the litigation
27 process in seeking judicial review of its service in the guise of a Motion to Clarify.
28 VidAngel says it was testing an operating version of its new service as early as April
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PLAINTIFFS OPP. TO MOTION TO CLARIFY
16-CV-04109-AB (PLAX)
Case 2:16-cv-04109-AB-PLA Document 188 Filed 07/03/17 Page 28 of 28 Page ID #:5754

1 of this year. Quinto 6/22 Decl. 6. Nevertheless, VidAngel waited until June to
2 file this motion, and now demands a resolution without allowing Plaintiffs to take
3 discovery of the new service.
4 To the extent there is any question that VidAngels service is covered by the
5 Preliminary Injunction Order, Plaintiffs should be permitted discovery into the
6 operation of VidAngels system.
7 CONCLUSION
8 Plaintiffs respectfully submit the Court should deny VidAngels motion.
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10 DATED: July 3, 2017 MUNGER, TOLLES & OLSON LLP
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By: /s/ Kelly M. Klaus
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KELLY M. KLAUS
14 Attorneys for Plaintiffs
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PLAINTIFFS OPP. TO MOTION TO CLARIFY
16-CV-04109-AB (PLAX)