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The lawsuit filed by Disney, 20th Century Fox and Warner Bros. against VidAngel is stepping on some bizarre territory.
To quickly review, the three studios (including Disney subsidiary LucasFilm) filed a copyright infringement complaint in June with the allegation that VidAngel was operating an “unlicensed VOD streaming service” by selling movies and TV shows for $20, providing the means so that consumers could stream the works with filters, and then buying them back for $19. The studios are now pushing for a preliminary injunction.
In response, VidAngel has wrapped itself under the family-friendly banner and is asserting a counterclaim premised on the notion there’s a conspiracy at hand to rid the entertainment market of any technology that allows consumers to filter course language, nudity and violence from movies and TV shows. The company hopes that the Family Movie Act of 2005 is its salvation from copyright liability, and if that doesn’t work, is attempting to convince a judge that it is making transformative use of content and deserves to be adjudicated a fair use.
On Monday, VidAngel rehashed the arguments in an opposition to the preliminary injunction, plus offered dozens of declarations from some of its supporters.
Among the court papers filed yesterday was a declaration from David Quinto, who made one of the more surprising moves in Hollywood history. A former founding partner at Quinn Emanuel, Quinto represented the Academy of Motion Picture Arts and Sciences for 27 years. But in August, Quinto joined VidAngel as its general counsel.
In Quinto’s declaration, he reveals that he was representing VidAngel in August 2015 when his former firm “reversed its earlier decision” and ordered him to stop representing the company.
A year later, he’s left his prestigious law firm and is now on VidAngel’s side again. He’s now taking shots at Hollywood. For instance, his declaration (read here) notes how “three of the six major motion picture studios refused to sue VidAngel” and also discusses “Disney pornography.”
Specifically, he notes the existence of a website called DisneyPornLand.com, where Disney characters are said to engage in various sex acts.
“As a Uniform Domain Name Resolution Policy panelist accredited by the World Intellectual Property Organization and as a lawyer who, while in law firm practice, brought several successful in rem actions in the Eastern District of Virginia to obtain domain names used in bad faith by unknown or foreign registrants to cause harm to U.S. trademark owners, I know that it would be a simple and inexpensive matter for Disney to take ownership of that domain name,” Quinto states. “That it has not done so leads me to conclude that Disney does not believe that the association of its mark and characters with pornography injures it, thus rendering its contention that something both wholesome and approved by Congress trivial and commonplace might [be] less than credible.”
Yes, VidAngel is trying to steer the judge’s attention away from allegations that it is circumventing the encryption on DVD and Blu-rays to (legally or not) stream blockbusters that aren’t even on Netflix yet. Instead, VidAngel is openly suggesting more sinister forces lurk beneath the piracy lawsuit.
Check out Vidangel CEO Neal Harmon’s own declaration in the matter. (Read in full here.)
Harmon says he created the services after he and his brothers asked themselves, “Why isn’t there a content filtering service for streaming?”
After Google came out with its Chromecast streaming device, VidAngel was launched on the back of this technology as well as a few million dollars in funding. He says Google, however, removed his technology at the request of movie studios, and so he spent a couple of years adapting the technology and paying attention to developments like the Aereo case to see if he could make it work within the boundaries.
The studios weren’t VidAngel’s only problem.
“Because VidAngel has catered only to people who want to filter the motion pictures they watch in their homes, we did not immediately recognize that others might try to abuse VidAngel’s service or exploit loopholes in our service to watch motion pictures without filtering,” states Harmon.
According to Harmon, the company created a #StopJarJar marketing campaign in December 2015 to coincide with the Star Wars VII movie launch, but that users began taking advantage of it by “setting a single global filter (e.g., Jar Jar Binks) and then watching movies on the Roku that didn’t have any tags for the selected filter, resulting in a few unfiltered streams.”
In other words, some people weren’t as interested in those vaunted filtering features as maybe having the ability to stream content cheaply. Similarly, Harmon says the company struggled with some users merely filtering opening and closing credits. He says the company worked to address such “loopholes” and “stay focused on our original target market of FMA-compliant filtering.”
He crows about the success, pointing to a survey the company has taken of its users: “Out of 180,227 movies watched, 92,225 users said they would not have watched the movie at all without filters (as of 8/26/2016). These answers come from the account holders (usually parents).”
Harmon later goes on to explain why he believes the studios are being “disingenuous” about their piracy lawsuit. He explains that his epiphany came when reading the Sony/Google agreement that was posted on WikiLeaks (after being obtained via a hack attributed to the North Koreans, proving our intuition at the time that the information was going to pop up in all sorts of odd ways.) The deal limited Google’s ability to make deletions, cuts and alterations of Sony’s content.
“Discovering this language in the studios’ actual agreements helped me realize that this was the reason Google was forced to remove technical support for filtering HD content on the Chromecast and was forced to seek permission from the studios to enable filtering on Google Play,” states Harmon, adding some discussion of Sony’s agreements for the specific films Fury and American Hustle.
In VidAngel’s view, or at least its posturing, the damages being asserted by Disney, Fox and Warner Bros. is pretextual to a larger animus towards filtering.
In an effort to show this, Quinto points to the way he tried to engage the studios in negotiations.
In an Aug. 29 letter to opposing counsel, for instance, he wrote that “VidAngel is willing to abandon its Family Movie Act exemption (and with it the requirement that consumers must purchase copies of discs) and instead pay a streaming license fee to stream filtered content.”
The studios are apparently shaking their collective heads at what they’re witnessing.
As Kelly Klaus, an attorney for the plaintiffs, wrote Quinto that same day, “If VidAngel takes its legal obligations seriously, VidAngel will immediately stop ripping my clients’ works from DVDs and Blu-ray discs and will remove those works from its infringing service. We find your email below to be as disingenuous as your original letters to each of my clients. In addition, it is simply astonishing that VidAngel — while pursuing legally and factually baseless antitrust claims — proposes to engage my clients in joint licensing discussions. To reiterate what I have told [VidAngel’s lawyers at] Baker Marquart multiple times: My clients absolutely will not engage in any joint licensing discussions.”
A court hearing is scheduled on the matter in October.
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