SALT LAKE CITY — The U.S. Court of Appeals for the 9th Circuit dealt Provo-based video filtering service VidAngel another legal blow this week in a long-running dispute with a group of Hollywood movie studios, denying the company's appeal of an injunction levied against it in December.
The plaintiffs in the action include Disney, 20th Century Fox, Warner Bros. and Lucasfilm (a Disney subsidiary).
Thursday's 9th Circuit decision follows a U.S. District Court ruling in early August that denied VidAngel's motion to clarify, under which the company claimed a change in business models — they switched from a disc-based filtering service to one it says works on top of content beamed from a streaming service such as Netflix or Amazon — exempted them from the original injunction ruling.
In the 9th Circuit decision, Judge Andrew Hurwitz wrote that the three-judge panel "affirmed the district court’s findings regarding the likelihood of irreparable harm, the balancing of the equities, and the public interest." While a portion of the arguments made by VidAngel's legal team were based on exemptions they say were created under the 2005 Family Movie Act, Hurwitz and his fellow panel members found them unconvincing.
"Thus, even if VidAngel employs technology that enables filtering, the FMA exempts that service from the copyright laws only if the filtering is from an authorized copy of the motion picture," Hurwitz wrote. "More importantly, VidAngel’s interpretation would create a giant loophole in copyright law, sanctioning infringement so long as it filters some content and a copy of the work was lawfully purchased at some point. But, virtually all piracy of movies originates in some way from a legitimate copy.
"If the mere purchase of an authorized copy alone precluded infringement liability under the FMA, the statute would severely erode the commercial value of the public performance right in the digital context, permitting, for example, unlicensed streams which filter out only a movie’s credits."
Hurwitz even exhumed testimony offered by Sen. Orrin Hatch, R-Utah, from back in 2005 when the Family Movie Act (which he co-sponsored) was being discussed in the U.S. Senate.
Hatch stated at that time that the act “should be narrowly construed” to avoid “impacting established doctrines of copyright” law and “sets forth a number of conditions to ensure that it achieves its intended effect.”
Hurwitz wrote Hatch stressed that “(a)ny suggestion that support for the exercise of viewer choice in modifying their viewing experience of copyrighted works requires violation of either the copyright in the work or of the copy protection schemes that provide protection for such work should be rejected as counter to legislative intent or technological necessity.”
VidAngel responded to the Thursday's ruling in a press release. It contained a statement attributed to VidAngel attorney Peter Stris that read, "We are of course disappointed in this decision and we're reviewing our strategy for moving forward."
VidAngel CEO Neal Harmon said, "Today's decision has absolutely no impact on VidAngel's current service, we remain open for business. While all of the legal back-and-forth plays out, we know our customers are grateful to still have a way to protect their kids and filter harmful content. On the legal front, we are just getting started. We will fight for a family's right to filter on modern technology all the way."
A plaintiffs' representative did not immediately respond to requests for comment.
Under current rules, the losing party in a 9th Circuit ruling by a three-judge panel has 14 days to file a petition for a rehearing or rehearing en banc (by an 11-judge panel.) VidAngel could also opt to appeal its case to the U.S. Supreme Court.
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