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Movie Filtering and the Vidangel Copyright Case

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Movie Filtering and the Vidangel Copyright Case Movie Filtering and the VidAngel Copyright Case Michael K. Erickson Ray Quinney & Nebeker P.C. Three Questions (I) Does it violate an exclusive right? (1) reproduce copies; (2) prepare derivative works; (3) distribute copies; (4) perform publicly; (5) display publicly. (II) Is it a fair use? (III) Is it authorized by the Family Movie Act VHS Video Splicing Sunrise Video American Fork, Utah Paramount’s Call to Sunrise Video In a call with a Paramount official, [owner] says he was warned not to sell any edited copies. “I said we don’t sell any. Then he told me not to rent any. I said we don’t rent any, either. So then he said, ‘Will you stop editing the tapes?’ I said, ‘No, when a person buys a movie, it’s his property.’” Christian Science Monitor, “Videos: Who Makes Final Cut?,” October 5, 1998 The CleanFlicks Case • operates as cooperative • edits master DVD • makes edited copies in a one-to-one ratio with originally purchased copies CleanFlicks’ Argument “They suggest that the Studios benefit because they are selling more copies of their movies as a result of the editing parties’ practice of maintaining a one-to-one ratio of the original and edited versions. It is assumed that the consumers of the edited versions would not have themselves purchased the authorized versions because of the objectionable content and the Studios do not compete in this alternative market.” Clean Flicks of Colorado v. Soderbergh, 433 F. Supp. 2d 1236, 1242 (D. Colo. 2006) District Court Rules Against CleanFlicks “The argument has superficial appeal but it ignores the intrinsic value of the right to control the content of the copyrighted work which is the essence of the law of copyright. Whether these films should be edited in a manner that would make them acceptable to more of the public playing them on DVD in a home environment is more than merely a matter of marketing; it is a question of what audience the copyright owner wants to reach.” Clean Flicks of Colorado v. Soderbergh, 433 F. Supp. 2d 1236, 1242 (D. Colo. 2006) Moral Rights? Nor is Garcia protected by the benefits found in many European countries, where authors have “moral rights” to control the integrity of their works and to guard against distortion, manipulation, or misappropriation. See Kelley v. Chicago Park Dist., 635 F.3d 290, 296 (7th Cir.2011) … Except for a limited universe of works of visual art, such as paintings and drawings protected under the Visual Artists Rights Act of 1990, United States copyright law generally does not recognize moral rights. 17 U.S.C. § 106A. Motion pictures specifically are excluded from moral rights protection. § 106A; § 101. Garcia v. Google, Inc., 786 F.3d 733, 746 (9th Cir. 2015) ClearPlay Are Alterations in Real-Time Derivative “Works”? “A work is ‘created’ when it is fixed in a copy or phonorecord for the first time . .” 17 U.S.C. § 101 Family Movie Act of 2005 “Notwithstanding the provisions of section 106, the following are not infringements of 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 . from an authorized copy of the motion picture . .” 17 U.S.C. § 110(11) Family Movie Act of 2005 “Notwithstanding the provisions of section 106, the following are not infringements of copyright: … 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.” 17 U.S.C. § 110(11) Marybeth Peters Then Register of Copyrights “One reason why I am reasonably comfortable with this conclusion is that, although the producer and marketer of the software is presumably making a profit from its sale, it is difficult to imagine any economic harm to the copyright owner. In fact, arguably some people who would not have purchased or rented a particular movie if they did not have the ability to skip past portions that they believe are objectionable will purchase or rent it if they can obtain the software for that particular movie.” Subcommittee on Courts, The Internet and Intellectual Property of the House Committee on the Judiciary, 108th Congress, 2d Session, June 17, 2004 • Offered more than 2500 movies and television episodes • Purchased multiple authorized DVDs or Blu-ray discs • Decrypted one disc for each title and then uploaded the digital copy to a computer. • Created ‘‘intermediate’’ files, converting copy to streaming format and breaking it into segments that were tagged for over 80 categories of inappropriate content. • Encrypted and stored segments in cloud servers. Three Questions for VidAngel Case (I) Does it violate an exclusive right? (1) reproduce copies; (2) prepare derivative works; (3) distribute copies; (4) perform publicly; (5) display publicly. (II) Is it a fair use? (III) Is it authorized by the Family Movie Act Exclusive Right? [L]awful owners ‘‘of a particular copy’’ of a copyrighted work are only entitled to ‘‘sell or otherwise dispose of the possession of that copy,’’ not to reproduce the work. 17 U.S.C. § 109(a). The district court thus did not abuse its discretion in concluding that VidAngel’s copying infringed the Studios’ exclusive reproduction right. See MAI Sys. Corp. v. Peak Comput., Inc., 991 F.2d 511, 518 (9th Cir. 1993) (transferring digital files ‘‘from a permanent storage device to a computer’s RAM’’ is ‘‘copying’’ under § 106); Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1518 (9th Cir. 1993) (holding that § 106 ‘‘unambiguously … proscribes ‘intermediate copying’ ’’ (citation omitted)). Disney Enter., Inc. v. VidAngel, Inc., 869 F.3d 848, 856-57 (9th Cir. 2017) Family Home Movie Act? The FMA permits ‘‘the making imperceptible ... of limited portions of audio or video content of a motion picture, during a performance in or transmitted to [a private household], from an authorized copy of the motion picture.’’ § 110(11) (emphasis added). It does not say, as VidAngel would have us read the statute, ‘‘beginning from’’ or ‘‘indirectly from’’ an authorized copy. [V]irtually all piracy of movies originates in some way from a legitimate copy. Disney Enter., Inc. v. VidAngel, Inc., 869 F.3d 848, 858-59 (9th Cir. 2017) Same as CleanFlicks? Family Movie Act: “Notwithstanding the provisions of section 106, the following are not infringements of copyright: … 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.” 17 U.S.C. § 110(11) Fair Use? (1) the purpose and character of the use; – Transformative? (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; (4) the effect of the use upon the potential market. See 17 U.S.C. § 107 Transformative? Although removing objectionable may permit a viewer to enjoy a film, this does not necessarily “add[] something new” or change the “expression, meaning, or message” of the film. Campbell, 510 U.S. at 579, 114 S.Ct. 1164. Star Wars is still Star Wars, even without Princess Leia’s bikini scene. Disney Enter., Inc. v. VidAngel, Inc., 869 F.3d 848, 861 (9th Cir. 2017) Market Effect? VidAngel argues that its service actually benefits the Studios because it purchases discs and expands the audience for the copyrighted works to viewers who would not watch without filtering. But, the district court found that “VidAngel’s service [is] an effective substitute for Plaintiff’s unfiltered works,” because surveys suggested that 49% of its customers would watch the movies without filters. Disney Enter., Inc. v. VidAngel, Inc., 869 F.3d 848, 861 (9th Cir. 2017) Bad Facts for Fair Use • To maximize revenue, the Studios employ “windowing” [e.g., theaters, DVDs, digital downloads, on-demand rental, subscription on-demand streaming]. • When VidAngel began streaming Disney’s Star Wars: The Force Awakens, it was available elsewhere only for purchase on DVD or as a digital download, not as a short-term rental. • Customer: “We bought Star Wars and sold it back for a total of $1 when it was like $5 to rent on Amazon. So even if you don’t need content cleaned, it’s a great service.” Disney Enter., Inc. v. VidAngel, Inc., 869 F.3d 848, 853-54 (9th Cir. 2017) “We have not endorsed or approved the VidAngel technology,” Netflix said in a statement emailed to the Deseret News. 4. VidAngel creates intermediate copies of content from authorized streams as a necessary step to enable its filtering service. 5. VidAngel creates temporary “working” copies that allow VidAngel to create “tags” that enable viewers to filter a work to meet their values. 6. VidAngel creates permanent cloud-based copies that are necessary to ensure that each customer receives a smooth transmission of the content he or she has purchased from an LSS, and to ensure that the user can watch the content on modern mobile devices [smartphones and tablets, smart TVs, and Over-the- Top devices (e.g., apple TV, Roku, Xbox, and Fire TV)]. VidAngel’s Mot. for Partial Summ. J. [Dkt. 76] at 5 Three Questions for New Service (I) Does it violate an exclusive right? (1) reproduce copies; (2) prepare derivative works; (3) distribute copies; (4) perform publicly; (5) display publicly.
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