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June 17, 2019-0932 Disney RTP.Ecl 960 1 UNITED STATES DISTRICT COURT 2 CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION 3 HONORABLE ANDRÉ BIROTTE JR., U.S. DISTRICT JUDGE 4 5 DISNEY ENTERPRISES, INC., ET ) AL., ) 6 ) PLAINTIFFS, ) 7 ) vs. ) No. CV 16-4109-AB 8 ) VIDANGEL, INC., ) 9 ) DEFENDANT. ) 10 ________________________________) 11 12 13 REPORTER'S TRANSCRIPT OF PROCEEDINGS 14 MONDAY, JUNE 17, 2019 15 9:41 A.M. 16 LOS ANGELES, CALIFORNIA 17 Day 5 of Jury Trial, Pages 960 through 1064, inclusive 18 19 20 21 22 ____________________________________________________________ 23 CHIA MEI JUI, CSR 3287, CCRR, FCRR FEDERAL OFFICIAL COURT REPORTER 24 350 WEST FIRST STREET, ROOM 4311 LOS ANGELES, CALIFORNIA 90012 25 [email protected] CHIA MEI JUI, CSR 3287, CRR, FCRR UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA 961 1 APPEARANCES OF COUNSEL: 2 FOR THE PLAINTIFFS: 3 MUNGER, TOLLES & OLSON LLP BY: KELLY M. KLAUS, ATTORNEY AT LAW 4 560 MISSION STREET, 27TH FLOOR SAN FRANCISCO, CALIFORNIA 94105 5 (415) 512-4017 (415) 512-4028 6 MUNGER, TOLLES & OLSON LLP 7 BY: ROSE LEDA EHLER, ATTORNEY AT LAW AND BLANCA YOUNG, ATTORNEY AT LAW 8 350 SOUTH GRAND AVENUE, 50TH FLOOR LOS ANGELES, CALIFORNIA 90071 9 (213) 683-9100 10 11 FOR THE DEFENDANT: 12 CALL & JENSEN BY: SAMUEL G. BROOKS, ATTORNEY AT LAW 13 AND MARK L. EISENHUT, ATTORNEY AT LAW 610 NEWPORT CENTER DRIVE, SUITE 700 14 NEWPORT BEACH, CALIFORNIA 92660 (949) 717-3000 15 VIDANGEL, INC. 16 BY: J. MORGAN PHILPOT, ATTORNEY AT LAW 295 WEST CENTER STREET 17 PROVO, UTAH 84601 (801) 810-8369 18 19 20 21 22 23 24 25 CHIA MEI JUI, CSR 3287, CRR, FCRR UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA 962 1 LOS ANGELES, CALIFORNIA; MONDAY, JUNE 17, 2019 2 9:41 A.M. 3 - - - 4 (The following was heard in open court in the presence 5 of the jury:) 6 THE CLERK: Calling CV 16-4109-AB, Disney 7 Enterprises, Inc., et al., versus VidAngel, Inc., jury trial 8 Day 5. 9 THE COURT: Good morning, ladies and gentlemen. 10 Hope you all had a wonderful weekend. We are ready to 11 resume the trial today. You should all have in front of you 12 a copy of closing jury instructions. 13 And, again, just to remind you what the run of the 14 show, for lack of a better term, will be today is that I 15 will provide you -- we'll go through the jury instructions, 16 you will hear arguments of counsel, and then the matter will 17 be submitted to you to begin your deliberations. 18 With that, I will begin reading the instructions 19 that will be used as a guide to your consideration of the 20 evidence in this case. 21 Members of the jury, now that you have heard all 22 the evidence and the argument and soon to hear the arguments 23 of the attorneys, it's my duty to instruct you on the law 24 that applies to this case. 25 A copy of these instructions will be sent to the CHIA MEI JUI, CSR 3287, CRR, FCRR UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA 963 1 jury room for you to consult during your deliberations. 2 It is your duty to find the facts from all the 3 evidence in the case. To those facts, you will apply the 4 law as I give it to you. You must follow the law as I give 5 it to you whether you agree with it or not. And you must 6 not be influenced by any personal likes or dislikes, 7 opinions, prejudices, or sympathy. That means that you must 8 decide the case solely on the evidence before you. You will 9 recall that you took an oath to do so. 10 Please do not read into these instructions or 11 anything that I may say or do or have said or done that I 12 have an opinion regarding the evidence or what your verdict 13 should be. 14 From time to time during the trial, it became 15 necessary for me to talk with the attorneys out of the 16 hearing of the jury, either by having a conference here at 17 the bench when you were all present in the courtroom or by 18 calling a recess. Please understand that, while you were 19 waiting, we were working. The purpose of these conferences 20 is not to keep relevant information from you but to decide 21 how certain evidence is to be treated under the rules of 22 evidence and to avoid confusion and error. 23 Of course, we have done what we could to keep the 24 number and length of these conferences to a minimum. I did 25 not always grant an attorney's request for a conference. Do CHIA MEI JUI, CSR 3287, CRR, FCRR UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA 964 1 not consider my granting or denying a request for a 2 conference as any indication of my opinion of the case or of 3 what your verdict should be. 4 Plaintiffs are Disney Enterprises, Inc., Disney; 5 Lucasfilm Limited, LLC, Lucasfilm; Twentieth Century Fox 6 Film Corporation, Fox; Warner Bros. Entertainment, Inc., 7 Warner Bros; MVL Film Finance, LLC, Marvel; New Line 8 Productions, Inc., New Line; and Turner Entertainment 9 Company, Turner. They own copyrights to popular movies and 10 TV shows. 11 The defendant is VidAngel, Inc., VidAngel. 12 VidAngel operates an online streaming service that allows 13 customers to stream motion pictures and TV shows while 14 filtering them, which means skipping and/or muting limited 15 portions of the video and/or audio content selected by the 16 customer. 17 Plaintiffs sued VidAngel for copyright 18 infringement and for violating a statute called the Digital 19 Millennium Copyright Act, the DMCA. Plaintiffs allege that 20 VidAngel's conduct in providing filtered streams of 21 plaintiffs' movies and TV shows violated their copyrights in 22 the movies and TV shows and violated the DMCA. VidAngel 23 argued that its acts were permitted by the Family Movie Act 24 of 2005 and were protected under a concept known as fair 25 use. CHIA MEI JUI, CSR 3287, CRR, FCRR UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA 965 1 Prior to this trial, I considered the legal 2 arguments made by both sides. I found that to provide its 3 streaming service, VidAngel copied and publicly performed 4 plaintiffs' movies and shows and thus committed copyright 5 infringement. I also found that VidAngel bypassed the 6 security measures on DVDs, conduct called "circumvention," 7 which violates the DMCA. 8 Because I found that VidAngel has violated 9 plaintiffs' rights, the law requires VidAngel to pay 10 plaintiffs money damages. I did not determine the amount of 11 damages. That is your job in this trial. You are not to 12 consider whether VidAngel violated plaintiffs' rights. That 13 has already been established. 14 The law sets a range of damages for these 15 violations. You will determine the amounts within those 16 ranges that VidAngel will have to pay for each copyright it 17 infringed and each DMCA violation. I will soon instruct you 18 on the range of statutory damages and the factors you may 19 consider in reaching your decision. 20 When a party has the burden of proving any claim 21 or affirmative defense by a preponderance of the evidence, 22 it means you must be persuaded by the evidence that the 23 claim or affirmative defense is more probably true than not 24 true. 25 You should base your decision on all of the CHIA MEI JUI, CSR 3287, CRR, FCRR UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA 966 1 evidence, regardless of which party presented it. 2 The evidence you are to consider in deciding what 3 the facts are consists of: 4 One, the sworn testimony of any witness; two, the 5 exhibits that are admitted into evidence; three, any facts 6 to which the lawyers have agreed; and, four, any facts that 7 I may instruct you to accept as proved. 8 In reaching your verdict, you may consider only 9 the testimony and exhibits received into evidence. Certain 10 things are not evidence, and you may not consider them in 11 deciding what the facts are. I will list them for you. 12 One, arguments and statements by lawyers are not 13 evidence. The lawyers are not witnesses. What they may say 14 in their opening statements, closing arguments, and at other 15 times is intended to help you interpret the evidence but it 16 is not evidence. If the facts as you remember them differ 17 from the way the lawyers have stated them, your memory of 18 them controls. 19 Two, questions and objections by lawyers are not 20 evidence. Attorneys have a duty to their clients to object 21 when they believe a question is improper under the rules of 22 evidence. You should not be influenced by the objection or 23 by the Court's ruling on it. 24 Three, testimony that is excluded or stricken or 25 that you are instructed to disregard is not evidence and CHIA MEI JUI, CSR 3287, CRR, FCRR UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA 967 1 must not be considered. In addition, some evidence may be 2 received only for a limited purpose. When I instruct you to 3 consider certain evidence only for a limited purpose, you 4 must do so, and you may not consider that evidence for any 5 other purpose.
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