Disney Enterprises, Inc., et al v. VidAngel, Inc.

Filing 24

Submitted (ECF) excerpts of record. Submitted by Appellant VidAngel, Inc.. Date of service: 01/11/2017. [10263145] [16-56843] (Stris, Peter) [Entered: 01/11/2017 09:33 PM]

No. 16-56843
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIDANGEL, INC.,
Defendant-Appellant,
v.
DISNEY ENTERPRISES, INC.; LUCASFILM LTD. LLC;
TWENTIETH CENTURY FOX FILM CORPORATION; AND
WARNER BROS. ENTERTAINMENT, INC.,
Plaintiffs-Appellees.
On Appeal from the United States District Court
for the Central District of California
Hon. André Birotte Jr.
No. 2:16-cv-04109-AB-PLA
EXCERPTS OF RECORD
VOLUME II OF V
(Pages 23-289)
Brendan S. Maher
Daniel L. Geyser
Douglas D. Geyser
STRIS & MAHER LLP
6688 N. Central Expy., Ste. 1650
Dallas, TX 75206
Telephone: [phone]
Facsimile: [phone]
January 11, 2016

Peter K. Stris
Elizabeth Rogers Brannen
Dana Berkowitz
Victor O’Connell
STRIS & MAHER LLP
725 S. Figueroa St., Ste. 1830
Los Angeles, CA 90017
Telephone: [phone]
Facsimile: [phone]
[e-mail]

Counsel for Defendant-Appellant VidAngel, Inc.

TABLE OF CONTENTS
VOLUME I OF V
Pages 1 to 22

ECF Description
144

Page

Order Granting Plaintiffs’ Motion for Preliminary Injunction

ER001

VOLUME II OF V
Pages 23 to 289

ECF Description

Page

175

[In Chambers] Order Granting Plaintiffs’ Ex Parte Application
for an Order to Show Cause Why VidAngel Should Not Be Held
in Contempt

ER023

172

Ninth Circuit Order Denying VidAngel, Inc.’s Emergency Motion
for a Stay Pending Appeal

ER024

167

Declaration of David Quinto

ER026

166

[In Chambers] Order Denying Defendant’s Ex Parte Application
to Stay Preliminary Injunction Pending Appeal or Alternatively,
Pending Decision by the Ninth Circuit on Stay Pending Appeal

ER029

164

VidAngel, Inc.’s Opposition to Plaintiffs’ Ex Parte Application
for an Order to Show Cause

ER034

164-1

Declaration of Neal Harmon in Support of VidAngel,
Inc.’s Opposition to Plaintiffs’ Ex Parte Application for
an Order to Show Cause

ER050

164-2

Declaration of David Quinto in Support of VidAngel,
Inc.’s Opposition to Plaintiffs’ Ex Parte Application for
an Order to Show Cause

ER060

164-3

Declaration of Jarom McDonald in Support of
VidAngel, Inc.’s Opposition to Plaintiffs’ Ex Parte
Application for an Order to Show Cause

ER070

ECF Description

Page

163

Plaintiffs’ Preliminary Injunction Bond

ER075

158

Declaration of Neal Harmon in Support of VidAngel, Inc.’s Ex
Parte Application to Stay Preliminary Injunction Pending Appeal
or, Alternatively Pending Decision by the Ninth Circuit on Stay
Pending Appeal

ER080

149

VidAngel, Inc.’s Notice of Appeal from Order Granting Motion
for Preliminary Injunction; Representation Statement

ER088

145

Court Reporter’s Transcript of Proceedings on Monday,
November 14, 2016

ER094

123

Order Regarding Hearing Date on Plaintiffs’ Motion for
Preliminary Injunction

ER218

110

Supplemental Declaration of Neal Harmon in Opposition to
Motion for Entry of Preliminary Injunction (with Exhibits)

ER220

109

Declaration of William J. Aho in Support of VidAngel, Inc.’s
Opposition to Motion for Entry of Preliminary Injunction

ER283

78

Order Continuing Hearing of Plaintiffs’ Motions for Preliminary
Injunction and to Dismiss VidAngel’s Countercomplaint

ER288

VOLUME III OF V
Pages 290 to 567

ECF Description

Page

77

Amended Answer and First Amended Counterclaims

ER290

69

Declaration of Tim Wildmon in Support of VidAngel’s
Opposition to Motion for Preliminary Injunction

ER350

68

Declaration of Tim Barton in Support of VidAngel’s Opposition
to Motion for Preliminary Injunction

ER354

ECF Description

Page

67

Declaration of Theodore Baehr in Support of VidAngel’s
Opposition to Motion for Preliminary Injunction

ER358

66

Declaration of Rick Green in Support of VidAngel’s Opposition
to Motion for Preliminary Injunction

ER362

65

Declaration of Rebecca Hagelin in Support of VidAngel’s
Opposition to Motion for Preliminary Injunction

ER366

64

Declaration of Patrick Trueman in Support of VidAngel’s
Opposition to Motion for Preliminary Injunction

ER371

63

Declaration of Matt Kibbe in Support of VidAngel’s Opposition
to Motion for Preliminary Injunction

ER375

62

Declaration of L. Brent Bozell III in Support of VidAngel’s
Opposition to Motion for Preliminary Injunction

ER378

61

Declaration of George E. Roller in Support of VidAngel’s
Opposition to Motion for Preliminary Injunction

ER383

60

Declaration of Gary Marx in Support of VidAngel’s Opposition
to Motion for Preliminary Injunction

ER387

59

Declaration of Gary Bauer in Support of VidAngel’s Opposition
to Motion for Preliminary Injunction

ER391

58

Declaration of David Bozell in Support of VidAngel’s
Opposition to Motion for Preliminary Injunction

ER395

57

Declaration of David Barton in Support of VidAngel’s
Opposition to Motion for Preliminary Injunction

ER399

56

Declaration of Connor Boyack in Support of VidAngel’s
Opposition to Motion for Preliminary Injunction

ER403

55

Declaration of Harry R. Jackson Jr. in Support of VidAngel’s
Opposition to Motion for Preliminary Injunction

ER407

54

Declaration of Timothy F. Winter in Support of VidAngel’s
Opposition to Motion for Preliminary Injunction

ER411

ECF Description

Page

53

Declaration of Donna Rice Hughes in Support of VidAngel’s
Opposition to Motion for Preliminary Injunction

ER419

52

Declaration of Bryan and Diane Schwartz in Support of
VidAngel’s Opposition to Motion for Preliminary Injunction

ER428

51

Declaration of Bob Waliszewski in Support of VidAngel’s
Opposition to Motion for Preliminary Injunction

ER433

50

Declaration of Andrea Lafferty in Support of VidAngel’s
Opposition to Motion for Preliminary Injunction

ER436

46

Declaration of David W. Quinto in Support of VidAngel’s
Memorandum of Points and Authorities in Opposition to
Preliminary Injunction Motion

ER441

45

Declaration of Jaime W. Marquart in Support of VidAngel’s
Memorandum of Points and Authorities in Opposition to
Preliminary Injunction Motion

ER451

45-2

[Redacted] Exhibit B to Declaration of Jaime W.
Marquart in Support of VidAngel’s Memorandum of
Points and Authorities in Opposition to Preliminary
Injunction Motion

ER455

45-4

[Redacted] Exhibit D to Declaration of Jaime W.
Marquart in Support of VidAngel’s Memorandum of
Points and Authorities in Opposition to Preliminary
Injunction Motion

ER469

44

[Redacted] Declaration of Sigurd Meldal in Support of
VidAngel’s Memorandum of Points and Authorities in
Opposition to Preliminary Injunction Motion

ER470

44-4

ER514

Exhibit D to Declaration of Sigurd Meldal in Support
of VidAngel’s Memorandum of Points and Authorities
In Opposition to Preliminary Injunction Motion

ECF Description

Page

43

[Redacted] Declaration of Neal Harmon in Support of
VidAngel’s Memorandum of Points and Authorities In
Opposition to Preliminary Injunction Motion

ER520

43-1

Exhibit A to Declaration of Neal Harmon in Support of
VidAngel’s Memorandum of Points and Authorities In
Opposition to Preliminary Injunction Motion

ER545

43-2

Exhibit B to Declaration of Neal Harmon in Support of
VidAngel’s Memorandum of Points and Authorities In
Opposition to Preliminary Injunction Motion

ER547

43-3

Exhibit C to Declaration of Neal Harmon in Support of
VidAngel’s Memorandum of Points and Authorities In
Opposition to Preliminary Injunction Motion

ER551

28

Declaration of Tedd Cittadine in Support of Plaintiffs’ Motion
for Preliminary Injunction

ER554

VOLUME IV OF V
Pages 568 to 660

ECF Description

Page

27

[Redacted] Plaintiffs’ Notice of Motion and Motion for
Preliminary Injunction; Memorandum of Points and Authorities
in Support Thereof

ER568

1

Complaint for Copyright Infringement and Violation of Digital
Millennium Copyright Act

ER613

[1/11/2017] Docket Sheet

ER633

VOLUME V OF V
(FILED UNDER SEAL)
Pages 661 to 848

ECF Description

Page

80-1 Declaration of Neal Harmon in Support of VidAngel’s
Memorandum of Points and Authorities In Opposition to
Preliminary Injunction Motion

ER661

80-2 Declaration of Sigurd Meldal in Support of VidAngel’s
Memorandum of Points and Authorities in Opposition to
Preliminary Injunction Motion

ER686

80-3 Exhibit B to Declaration of Jaime W. Marquart in Support of
VidAngel’s Memorandum of Points and Authorities in Opposition
to Preliminary Injunction Motion

ER709

80-4 Exhibit D to Declaration of Jaime W. Marquart in Support of
VidAngel’s Memorandum of Points and Authorities in Opposition
to Preliminary Injunction Motion

ER723

33

Plaintiffs’ Notice of Motion and Motion for Preliminary
Injunction; Memorandum of Points and Authorities in Support
Thereof

ER804

Case 2:16-cv-04109-AB-PLA Document 175 Filed 01/06/17 Page 1 of 1 Page ID #:5398

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.:
Title:

CV 16-04109-AB (PLAx)

Date:

January 6, 2017

Disney Enterprises, Inc. et al v. VidAngel Inc.

Present: The Honorable

ANDRÉ BIROTTE JR., United States District Judge

Carla Badirian
Deputy Clerk

Nichole Forrest
Court Reporter

Attorney(s) Present for Plaintiff(s):

Attorney(s) Present for Defendant(s):

Allyson Bennett
Glenn D Pomerantz
Rose Leda Ehler
Kelly M Klaus

David W Quinto

STATUS CONFERENCE RE EX PARTE APPLICATION FOR
AN ORDER TO SHOW CAUSE WHY VIDANGEL SHOULD
NOT BE HELD IN CONTEMPT FOR VIOLATING THE
PRELIMINARY INJUNCTION ORDER [161]
Hearing held. Court and counsel confer.

Proceedings:

The Court having carefully considered the papers and the evidence submitted by the
parties, and having heard the oral argument of counsel, hereby GRANTS Plaintiffs’ Ex
Parte Application for the reasons stated on the record.
The Court holds VidAngel, Inc. in civil contempt of court and finds that an award of
reasonable attorney’s fees is justified in this matter. The Court awards $10,231.20 in U.S.
dollars to Plaintiffs’ counsel. VidAngel shall pay this amount to Plaintiffs’ counsel on or
before Monday, February 6, 2017. IT IS SO ORDERED.

1
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Case 2:16-cv-04109-AB-PLA Document 172 Filed 01/04/17 Page 1 of 2 Page ID #:5373

FILED
JAN 4 2017

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DISNEY ENTERPRISES, INC.; et al.,
Plaintiffs-counterdefendants-Appellees,
v.

No.

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

16-56843

D.C. No.
2:16-cv-04109-AB-PLA
Central District of California,
Los Angeles

VIDANGEL, INC.,
ORDER
Defendant-counter-claimantAppellant.

Before: LEAVY and SILVERMAN, Circuit Judges.
Appellant’s motion to stay the district court’s December 12, 2016 order
pending appeal (Docket Entry No. 16) is denied. See Hilton v. Braunskill, 481
U.S. 770, 776 (1987).
Appellant’s motion to seal portions of its emergency stay motion and
appendix volume 3 (Docket Entry No. 16), motion to seal its reply in support of its
emergency stay motion (Docket Entry No. 21), and appellees’ motion to seal the
supplemental appendix volume 5 (Docket Entry No. 19) are denied without
prejudice to renewal of the motions within 14 days from the date of this order.
See Interim 9th Cir. R. 27-13. The documents filed under seal provisionally will
TF/MOATT

ER024

Case 2:16-cv-04109-AB-PLA Document 172 Filed 01/04/17 Page 2 of 2 Page ID #:5374

remain under seal provisionally until renewed motions to seal are filed or, if no
renewed motion is filed, the documents provisionally filed under seal will be
unsealed.
The briefing schedule established previously remains in effect.

TF/MOATT

ER025

2

'

Case 2:16-cv-04109-AB-PLA Document 167 Filed 12/29/16 Page 1 of 3 Page ID #:5300

1 RYAN G. BAKER (SBN 214036)
rbaker@bakermarCJ!!art. com
2 JAIME MARQUART (SBN 200344)
[e-mail]. com
3 SCOTT M. 'MALZAHN (SBN 229204)
smalzahn@bakermar_q_uart. com
4 BRIAN T. GRACE (SBN 307826)
bgr_~e@bakermarquart. com
5 BAKERMARQUARTLLP
2029 Century Park East, Floor 16
6 Los Angeles, CA 90067
Telephone: [phone]
7 Facsunile: [phone]
8 PETER K . STRIS (SBN 216226)
p~er. stris@strismaher. com
9 BREND~S. MAHER (SBN 217043)
brendan.maher@strismaher. com
10 ELIZABETH BRANNEN (SBN 226234)
elizabeth. brannen@strismaher. com
11 DANIELL. GEYSER (SBN 230405)
danieLgeyser@strismaher. com
12 STRIS & MABER LLP
725 South Fi~eroa Street, Suite 1830
13 Los Angeles, CA 900 17
Telephone: [phone]
14 Facsimile: [phone]
15 DAVID W. QUINTO (SBN 106232)
d®into@vtdangel. com
16 3007 FrariKlin Canyon Drive
Beverly Hills CA 90210
17 Telephone: [phone]
Facsunile: [phone]
18
Attorneys (or Def?ndant and
19 Counterc(aimant VidAngel, Inc.
20
21
22
23

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

DISNEY ENTERPRISES, INC.;
24 LUCASFILMLTD. LLC·
TWENTIETH CENTURY FOX FILM
25 CORPORATION; and WARNER
BROS. ENTERTAINMENT INC.,
26
Plaintiffs,
27
v.
28

ER026

Case No. 2: 16-CV -041 09-AB (PLAx)

DECLARATION OF DAVID
QUINTO
Judge: Hon. Andre Birotte Jr.
Action Filed: June 9, 2016

DECLARATION OF DAVID QUINTO
- - - - - - - -·

Case 2:16-cv-04109-AB-PLA Document 167 Filed 12/29/16 Page 2 of 3 Page ID #:5301

1 VIDANGEL, INC.,
2

Defendant.

3

4 VIDANGEL, INC.,
5

6

Counterclaimant,
v.

7 DISNEY ENTERPRISES, INC. ;
LUCASFILM LTD. LLC~T
8 TWENTIETH CENTURr FOX FILM
CORPORATION; and WARNER
9 BROS . ENTERTAINMENT, INC. ,

10

Counterclaim Defendants.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ER027

DECLARATION OF DAVID QUINTO

Case 2:16-cv-04109-AB-PLA Document 167 Filed 12/29/16 Page 3 of 3 Page ID #:5302

1 I, David Quinto, declare as follows:
2

1.

I am the General Counsel of VidAngel, Inc. I have personal knowledge

3 of the facts set forth herein and if called and sworn as a witness, I could and would
4 testify competently hereto.
5

2.

Earlier today, this Court issued an Order that denied VidAngel's

6 application for a temporary stay. Given the denial of the requested stay, VidAngel
7 employees at VidAngel were immediately directed to shut the company's movie8 streaming servers completely, such that it is no longer possible to stream a movie from
9 VidAngel. Even customers who currently own tens of thousands of discs are unable to
10 watch the content they own. Notwithstanding VidAngel' s efforts to avoid having to
11 shut down completely, it is not now technologically possible for VidAngel to comply
12 fully with the Court' s Order with respect to plaintiffs' titles while at the same time
13 filtering and streaming titles released by the many, many studios that have neither sued
14 VidAngel nor expressed any complaint concerning its service. VidAngel has therefore
15 been forced to shut down its entire business as a result of the entry of the preliminary
16 injunction and the denial of a stay.
17

3.

I hope VidAngel's action today moots plaintiffs' Ex Parte Application for

18 Order to Show Cause re: Contempt against VidAngel. Plaintiffs sought only to compel
19 compliance with the preliminary injunction and VidAngel is now in full compliance
20 with it.
21

I declare under penalty of perjury that the foregoing is true and correct. Executed

22 this 29th day of December, 2016 in Los Angeles, California.
23
24
25
26

David Quinto

27
28

ER028

1
DECLARATION OF DAVID QUINTO

Case 2:16-cv-04109-AB-PLA Document 166 Filed 12/29/16 Page 1 of 5 Page ID #:5295

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

Case No.: CV 16-04109-AB (PLAx)
Title:

Date:

December 29, 2016

Disney Enterprises, Inc. et al v. VidAngel Inc.

Present: The Honorable

ANDRÉ BIROTTE JR., United States District Judge

Carla Badirian
Deputy Clerk

N/A
Court Reporter

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None Appearing

None Appearing

Proceedings:

[In Chambers] Order DENYING Defendant’s Ex Parte
Application to Stay Preliminary Injunction Pending Appeal Or
Alternatively, Pending Decision by the Ninth Circuit On Stay
Pending Appeal (Dkt. No. 147)

This matter is before the court on Defendant VidAngel, Inc.’s (“VidAngel”) ex parte
application to stay the Court's December 12, 2016 preliminary injunction order granting
Plaintiffs’ Disney Enterprises, Inc., Lucasfilm Ltd. LLC, Twentieth Century Fox Film
Corporation, and Warner Bros. Entertainment Inc. (“Plaintiffs”) Motion for Preliminary
Injunction. (Dkt. No. 144, “Order.”) The Courts Order enjoined VidAngel from
copying, streaming, transmitting or otherwise publicly performing or displaying any of
Plaintiffs’ copyrighted works. (Id.) VidAngel was also enjoined from circumventing
technological measures protecting Plaintiffs’ copyrighted works or engaging in any
activity that violates Plaintiffs anti-circumvention right under § 1201 of the Copyright Act,
17 U.S.C. §1201(a), or infringing Plaintiffs’ exclusive rights under § 106 of the Copyright
Act, 17 U.S.C. § 106. (Id.) VidAngel requests that the Order be stayed in its entirety
pending resolution of its appeal of the Court's Order to the Ninth Circuit. VidAngel
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alternatively moves this Court to stay its Order pending VidAngel's motion to the Ninth
Circuit for a stay of the injunction which VidAngel intends to file should the instant motion
be denied.
For the reasons set forth below, the court DENIES VidAngel's motion for a stay in
its entirety.

I.

LEGAL STANDARD

Federal Rule of Civil Procedure 62(c) provides that "[w]hile an appeal is pending
from an interlocutory order or final judgment that grants . . . an injunction, the court may
suspend, modify, restore, or grant an injunction on terms for bond or other terms that
secure the opposing party's rights." In determining whether to issue a stay pending an
interlocutory appeal, courts must consider: “(1) whether the stay applicant has made a
strong showing that he is likely to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure
the other parties interested in the proceeding; and (4) where the public interest lies.”
Hilton v. Braunskill, 481 U.S. 770, 776, 107 S. Ct. 2113, 95 L. Ed. 2d 724 (1987). "The
first two factors of the traditional standard are the most critical." Nken v. Holder, 556 U.S.
418, 434, 129 S. Ct. 1749, 173 L. Ed. 2d 550 (2009).
In applying these factors, the Ninth Circuit employs a "sliding scale" approach
whereby "the elements of the . . . test are balanced, so that a stronger showing of one
element may offset a weaker showing of another." Alliance for the Wild Rockies v. Cottrell,
632 F.3d 1127, 1131 (9th Cir. 2011); see also Leiva-Perez v. Holder, 640 F.3d 962, 964-66
(9th Cir. 2011) (noting that the sliding scale test for preliminary injunctions described in
Alliance for the Wild Rockies is the "essentially the same" as the test used in the stay
context, and holding that this approach "remains in place" following the Supreme Court's
decision in Nken). The Ninth Circuit “has adopted and applied a version of the sliding
scale approach under which a preliminary injunction could issue where the likelihood of
success is such that ‘serious questions going to the merits were raised and the balance of
hardships tips sharply in [plaintiff's] favor.’” Alliance for the Wild Rockies, 632 F.3d at
1131-32. "Serious questions" are those which are "substantial, difficult, and doubtful, as
to make them fair ground for litigation and thus for more deliberative investigation."
Senate of State of Cal. v. Mosbacher, 968 F.2d 974, 977-78 (9th Cir. 1992) (citing Gilder v.
PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir.1991)); see also Republic of the Philippines v.
Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988) ("'serious questions' refers to questions which
cannot be resolved one way or the other at the hearing on the injunction and as to which the
court perceives a need to preserve the status quo lest one side prevent resolution of the
questions or execution of any judgment by altering the status quo").
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II.

DISCUSSION
a. Likelihood of Success on the Merits

VidAngel's application for a stay raises the same arguments made in its original
opposition to Plaintiffs' motion for a preliminary injunction. (Dkt. No. 42) The Court
addressed each of VidAngel's arguments in its Order, and will not repeat the analysis here.
For the reasons set forth in the Order, the Court determined that the Plaintiffs have
demonstrated a strong likelihood of success on the merits of their claims that VidAngel’s
service violates Plaintiffs’ rights pursuant to § 1201(a) of the Digital Millennium
Copyright Act (“DMCA”), 17 U.S.C. § 1201(a), and infringes Plaintiffs’ exclusive rights
under § 106 of the Copyright Act, id. § 106.
A district court's decision regarding preliminary injunctive relief is subject to limited
review. Harris v. Bd. of Supervisors, L.A. Cnty, 366 F.3d 754, 760 (9th Cir. 2004) (review
"limited and deferential”) The Ninth Circuit will reverse a district court's issuance of a
preliminary injunction only if the district court abused its discretion by basing its decision
on an erroneous legal standard or on clearly erroneous factual findings. Alliance for the
Wild Rockies, 632 F.3d at 1131. Moreover, the Court’s factual findings are reviewed for
clear error and will not be reversed "as long as [the] findings are plausible in light of the
record viewed in its entirety.” Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 422
F.3d 782, 795 (9th Cir. 2005). Considering the deferential standard of review and the
Court’s determination that the Plaintiffs have demonstrated a strong likelihood of success
on the merits of its claims, VidAngel has not shown that it is likely to prevail on the merits
of the appeal.
b. Balance of the Hardships
VidAngel raises similar arguments from its original opposition regarding the harms
it will suffer if the injunction is not stayed. Specifically, VidAngel contends that the
injunction “threatens to destroy VidAngel’s unique market position and its market value”
and will cause “serious financial loss.” (Dkt. No. 147 at 12.) VidAngel also asserts that
the injunction threatens to damage customer goodwill. (Id.) The Court addressed these
arguments by noting that “[Defendants] cannot complain of the harm that will befall it
when properly forced to desist from its infringing activities." Triad Sys. Corp. v.
Southeastern Express Co., 64 F.3d 1330, 1338 (9th Cir. 1995). “Where the only hardship
that the defendant will suffer is lost profits from an activity which has been shown likely to
be infringing, such an argument in defense 'merits little equitable consideration [on an
appeal from a preliminary injunction].'" Id. (citing Concrete Mach. Co. v. Classic Lawn
Ornaments, Inc., 843 F.2d 600, 612 (1st Cir. 1988); accord Apple Comput., Inc. v. Franklin
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Comput. Corp., 714 F.2d 1240, 1255 (3d Cir. 1983) (in motion for preliminary injunction,
district court should not consider the “devastating effect” of the injunction on the
infringer’s business). (Order at 21.)
The Court determined that the Plaintiffs demonstrated a likelihood of imminent,
irreparable injury in the absence of an injunction. (Order at 16-20.) The Court
specifically found that VidAngel’s service caused irreparable harm by undermining
Plaintiffs’ negotiating position with licensees and also by damaging goodwill with
licensees, some of whom had specifically referenced “unlicensed services like
VidAngel’s…during negotiation meetings.” (Id. at 18.) VidAngel argues that the
Plaintiffs goodwill with licensees will be “largely unaffected pending the outcome on
appeal considering this Court's ruling in Plaintiffs' favor in the Order.” (Dkt. No. 147 at
13.) The Court is not persuaded by this argument. The evidence in the record shows that
Plaintiffs’ irreparable harms specifically arise from VidAngel’s unlicensed use of
Plaintiff’s works. Allowing VidAngel to continue offering the Plaintiff’s copyrighted
works without a license will only increase these harms.
Based on the foregoing, the Court holds that the balance of the hardships tips sharply
in the favor of the Plaintiffs.
c. Public Interest
VidAngel has not sufficiently shown that the public interest supports a stay of the
preliminary injunction. Plaintiffs have shown a likelihood of success on the merits of
their claims that VidAngel’s service violates § 1201(a), and § 106 of the Copyright Act.
As the Court noted in its Order, "it is virtually axiomatic that the public interest can only be
served by upholding copyright protections and correspondingly, preventing the
misappropriation of skills, creative energies, and resources which are invested in the
protected work." Warner Bros. Entm't, Inc. v. WTV Sys., 824 F. Supp. 2d 1003, 1015 (C.D.
Cal. 2011) (citing Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1255
(3rd Cir. 1983)). VidAngel essentially restates its argument that an injunction severely
undercuts “the public interest in protecting every person’s right to watch filtered content in
private.” (Oppo. at 32.) However, VidAngel has not refuted the evidence in the record
that indicates that ClearPlay offers a filtering service to Google Play users who access
authorized streams from GooglePlay’s licensed service. (Bennett Decl. Ex. A. at 5-6.)
VidAngel’s assertions regarding Clearplay’s filtering service are immaterial to the Court’s
analysis.1 The presence of market alternatives to VidAngel’s filtering service belies its
claim that an injunction would effectively “end the public’s ability to watch filtered
movies.” (Oppo. at 33.)
1 VidAngel argues that that ClearPlay “does not provide a legal filtering alternative” and is “technically inferior” to
VidAngel’s service. (Dkt. No. 147 at 14.)
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d. Conclusion
For the foregoing reasons, the Court finds that VidAngel has not shown a likelihood
that it will prevail on its appeal, nor has it shown that the balance of hardships tips sharply
in its favor or that the public interest is best served by a stay. Therefore, the Court denies
VidAngel’s motion for a stay in its entirety.

IT IS SO ORDERED.

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1 Ryan G. Baker (Bar No. 214036)
[e-mail]
2 Jaime Marquart (Bar No. 200344)
[e-mail]
3 Scott M. Malzahn (Bar No. 229204)
[e-mail]
4 Brian T. Grace (Bar No. 307826)
[e-mail]
5 BAKER MARQUART LLP
2029 Century Park East, Sixteenth Floor
6 Los Angeles, California 90067
Telephone: [phone]
7 Facsimile: [phone]
8 Peter K. Stris (Bar No. 216226)
[e-mail]
9 Brendan Maher (Bar No. 217043)
[e-mail]
10 Elizabeth Brannen (Bar No. 226234)
[e-mail]
11 Daniel Geyser (Bar No. 230405)
[e-mail]
12 STRIS & MAHER LLP
725 South Figueroa Street, Suite 1830
13 Los Angeles, California 90017
Telephone: [phone]
14 Facsimile: [phone]
15 David W. Quinto (Bar No. 106232)
[e-mail]
16 3007 Franklin Canyon Drive
Beverly Hills, California 90210
17 Telephone: [phone]
Facsimile: [phone]
18
19 Attorneys for Defendant and
Counterclaimant VidAngel, Inc.
20
21

UNITED STATES DISTRICT COURT

22

CENTRAL DISTRICT OF CALIFORNIA

23

WESTERN DIVISION

24 DISNEY ENTERPRISES, INC.;
LUCASFILM LTD. LLC;
25 TWENTIETH CENTURY FOX FILM
CORPORATION; AND WARNER
26 BROS. ENTERTAINMENT, INC.,
27
28

ER034

Plaintiffs,

CASE NO. CV16-04109-AB (PLAx)
VIDANGEL, INC.’S OPPOSITION
TO PLAINTIFFS’ EX PARTE
APPLICATION FOR AN ORDER
TO SHOW CAUSE

vs.
VIDANGEL’S OPPOSITION TO PLAINTIFFS’ EX
PARTE APPLICATION

Case 2:16-cv-04109-AB-PLA Document 164 Filed 12/23/16 Page 2 of 16 Page ID #:5253

1 VIDANGEL, INC.,
2

Defendant.

[Filed concurrently with Declaration of
David Quinto; Declaration of Jarom
McDonald; and Declaration of Neal
Harmon.]

3
The Hon. André Birotte Jr.

4

Date Action Filed: June 9, 2016

5
6 VIDANGEL, INC.,
7
Counterclaimant,

8
9

vs.

DISNEY ENTERPRISES, INC.;
10 LUCASFILM LTD. LLC;
TWENTIETH CENTURY FOX FILM
11 CORPORATION; AND WARNER
BROS. ENTERTAINMENT, INC.,
12
13

Counterclaim Defendants.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ER035

VIDANGEL’S OPPOSITION TO PLAINTIFFS’ EX
PARTE APPLICATION

Case 2:16-cv-04109-AB-PLA Document 164 Filed 12/23/16 Page 3 of 16 Page ID #:5254

1

TABLE OF CONTENTS

2

Page(s)

3 I.

INTRODUCTION……………………………………………………………1

4 II.

PROCEDURAL HISTORY………………………………………………….3

5 III.

FACTUAL BACKGROUND………………………………………………...4

6 IV.

ARGUMENT…………………………………………………………………6

7
8

A.

PLAINTIFFS’ CONTEMPT APPLICATION IS
UNNECESSARY BECAUSE VIDANGEL HAS
DECLARED THAT IT WILL COMPLY WITH THE
PRELIMINARY INJUNCTION………………………………………..6

B.

VIDANGEL HAS TAKEN REASONABLE STEPS TO
SUBSTANTIALLY COMPLY WITH THE COURT’S ORDER……...8

9
10
11
12

1.

VidAngel Has Acted Based on a Reasonable
Interpretation of the Preliminary Injunction Order………………9

2.

13

VidAngel Has Taken Reasonable Steps to
Substantially Comply with the Order…………………………...10

14
15
16
17
18
19 V.

C.

PLAINTIFFS REQUEST FOR COERCIVE
MONETARY SANCTIONS IS UNNECESSARY…………………...11

CONCLUSION……………………………………………………………...12

20
21
22
23
24
25
26
27
28

ER036

i VIDANGEL’S EX PARTE APPLICATION TO STAY
PRELIMINARY INJUNCTION

Case 2:16-cv-04109-AB-PLA Document 164 Filed 12/23/16 Page 4 of 16 Page ID #:5255

1

TABLE OF AUTHORITIES
Page(s)

2
3 Federal Cases

4 CBS Broad. Inc. v. FilmOn.com, Inc.,
814 F.3d 91 (2d Cir. 2016) .................................................................................... 12
5
6 F.T.C. v. Affordable Media,
179 F.3d 1228 (9th Cir.1999) .................................................................................. 9
7
8 In re Dual-Deck Video Cassette Recorder Antitrust Litig.,
10 F.3d 693 (9th Cir. 1993) ..................................................................................... 8
9
10 Newman v. Graddick,
740 F.2d 1513 (11th Cir.1984) .............................................................................. 10
11
Reno Air Racing Ass’n., Inc. v. McCord,
12
452 F.3d 1126 (9th Cir. 2006) ................................................................................. 9
13
Shillitani v. United States,
14
384 U.S. 364 (1966) .............................................................................................. 12
15 Spallone v. United States,
493 U.S. 265 (1990) .............................................................................................. 12
16
17 United States v. Ayres,
166 F.3d 991 (9th Cir.1999) .................................................................................. 10
18
19 United States v. Bright,
596 F.3d 683 (9th Cir.2010) .................................................................................... 9
20
21 Vertex Distribg., Inc. v. Falcon Foam Plastics, Inc.,
689 F.2d 885 (9th Cir. 1982) ................................................................................. 10
22
23
24
25
26
27
28

ER037

ii

VIDANGEL’S OPPOSITION TO PLAINTIFFS’ EX
PARTE APPLICATION

Case 2:16-cv-04109-AB-PLA Document 164 Filed 12/23/16 Page 5 of 16 Page ID #:5256

1 I.

INTRODUCTION

2

VidAngel opposes plaintiffs Disney Enterprises, Inc., Lucasfilm Ltd., LLC,

3 Twentieth Century Fox Film Corporation, and Warner Bros. Entertainment, Inc.’s
4 (collectively, “Plaintiffs”) premature ex parte application for an order to show cause
5 regarding contempt because VidAngel is not contemptuous of this Court’s
6 preliminary injunction order (the “Order”). VidAngel fully respects this Court’s
7 authority to order that it be preliminarily enjoined and appreciates the consideration
8 this Court gave to both parties’ arguments on the merits. Although Plaintiffs attempt
9 to portray VidAngel’s actions as flouting the Court’s Order, that is simply not the
10 case.
11

Two days after the Order was entered, VidAngel applied ex parte for a stay of

12 the preliminary injunction pending the outcome of VidAngel’s appeal of the Order to
13 the Ninth Circuit. While awaiting this Court’s ruling on that application, VidAngel
14 has worked diligently to comply with the changes required by the Order so that its
15 entire business – including significant business activities not subject to the injunction
16 - is not destroyed. Nothing on the face of the Order requires VidAngel to cease all
17 its business activities, and VidAngel reasonably interpreted the Order as confined to
18 Plaintiffs’ copyrighted works. To remove only Plaintiffs’ works from VidAngel’s
19 offerings is not a trivial matter and is far from the mere inconvenience Plaintiffs
20 suggest. It requires considerable technical effort and cooperation from third-party
21 app stores such as Roku and Apple and could not be done immediately (in part due to
22 the app stores’ policies).
23

Additionally, VidAngel was unable to predict whether or when preliminary

24 injunction might issue or what specific conditions might be enjoined. To require
25 VidAngel to prepare for all possible contingencies so that it could immediately
26 respond would be unfair. Allowing VidAngel a reasonable time to implement the
27 necessary changes to its system while it awaits a decision on its stay request made to
28

ER038

1 VIDANGEL’S EX PARTE APPLICATION TO STAY
PRELIMINARY INJUNCTION

Case 2:16-cv-04109-AB-PLA Document 164 Filed 12/23/16 Page 6 of 16 Page ID #:5257

1 this Court and, if necessary, on an emergency stay request to the Ninth Circuit which
2 must be made within one week of the Court’s decision on the pending stay request,
3 will allow VidAngel to avoid the total disruption of its business.
4

Given the sweeping breadth of the injunction, which was not limited to alleged

5 DMCA violations, but included activities governed by the exclusive rights of
6 Copyright, VidAngel had three choices. It could (i) comply immediately by
7 disabling in-app purchases of all 2,500+ titles in it library and breaking all titles on
8 its apps; (ii) comply within a relatively short period by disabling specific titles but
9 without preventing further purchases of those titles made through the use of cached
10 apps and without preventing complaints from the owners of 21,182 discs of plaintiffs'
11 works; or (iii) remove access to plaintiffs' works in an orderly manner by writing app
12 modifications, submitting them to the app stores for approval following the holiday
13 "black-out" period, and attempting to notify its customers through all available
14 means of what was happening and why and explaining that they could sell back discs
15 they currently owned but could not re-purchase them. (Declaration of Neal in
16 Support of Opposition to Ex Parte Application For Order to Show Cause (“Harmon
17 Decl.”), ¶¶ 13-14.) To prevent irreparable injury to VidAngel through the generation
18 of consumer ill will and disruption of its business activities beyond those directly
19 affected by the injunction, VidAngel opted to pursue the third option. (Id.)
20

Contempt is a drastic remedy that is not required here, especially on an ex

21 parte basis. VidAngel has declared that it will fully comply with the Order if no stay
22 is granted and is meanwhile working feverishly to avoid having to completely
23 dismantle its business and cause its customers harm if enforcement is enforcement is
24 not stayed. Moreover, Plaintiffs’ sixteen-month delay in seeking the preliminary
25 injunction and their inability to point to any immediate harms suffered from
26 VidAngel’s service undermine their claims of injury requiring urgent, ex parte relief.
27 Accordingly, it would be improper to consume the Court’s time to review briefing
28

ER039

2 VIDANGEL’S OPPOSITION TO PLAINTIFFS’ EX
PARTE APPLICATION

Case 2:16-cv-04109-AB-PLA Document 164 Filed 12/23/16 Page 7 of 16 Page ID #:5258

1 and conduct a hearing on civil contempt.
2 II.

PROCEDURAL HISTORY

3

On December 12, 2016, this Court granted Plaintiffs’ motion for a preliminary

4 injunction. (Dkt. 144.) The Court enjoined VidAngel from the following activities:
5
6
7
8
9
10
11
12
13
14
15
16
17

(1) circumventing technological measures protecting Plaintiffs’
copyrighted works on DVDs, Blu-ray discs, or any other medium;
(2) copying Plaintiffs’ copyrighted works, including but not limited to
copying the works onto computers or servers;
(3) streaming, transmitting or otherwise publicly performing or
displaying any of Plaintiffs’ copyrighted works over the Internet
(through such websites as VidAngel.com), via web applications
(available through platforms such as the Windows App Store, Apple’s
App Store, the Amazon App Store, Facebook or Google Play), via
portable devices (such as through applications on devices such as
iPhones, iPads, Android devices, smart phones or tablets), via media
streaming devices (such as Roku, Chromecast or Apple TV), or by
means of any other device or process; or
(4) engaging in any other activity that violates, directly or indirectly,
Plaintiffs anti-circumvention right under § 1201 of the Copyright Act,
17 U.S.C. §1201(a), or infringing by any means, directly or indirectly,
Plaintiffs’ exclusive rights under § 106 of the Copyright Act, 17 U.S.C.
§ 106.

18 (Id. at p. 22.) To obtain the injunction, Plaintiffs were “ordered to post a bond in the
19 amount of $250,000.” (Id.)
20

Immediately thereafter, on December 14, 2016, VidAngel moved to stay the

21 Order in its entirety pending appeal. (Dkt. 147.) It also filed a notice of appeal.
22 (Dkt. 148.)
23

On December 15, 2016, Plaintiffs posted the required bond. (Dkt. 152.)

24

On December 21, 2016, VidAngel filed a declaration signed by its Chief

25 Executive Officer, Neal Harmon, to advise this Court of the status of VidAngel’s
26 good faith efforts to comply with the Order and to request that “it be allowed a
27 reasonable time to comply fully with the terms of the preliminary injunction if no
28 stay is granted in the interim.” (Dkt. 158.)
3 VIDANGEL’S OPPOSITION TO PLAINTIFFS’ EX

ER040

PARTE APPLICATION

Case 2:16-cv-04109-AB-PLA Document 164 Filed 12/23/16 Page 8 of 16 Page ID #:5259

1

On December 22, 2016, Plaintiffs applied ex parte for an order to show cause

2 why VidAngel should not be held in contempt. (Dkt. 161.)
3

In light of the holidays and pre-existing travel plans for many of its team

4 members, VidAngel’s counsel asked Plaintiffs to stipulate to permit VidAngel to file
5 its opposition to the ex parte application on December 26 or 27. (Declaration of
6 David Quinto in Support of Opposition to Ex Parte Application For Order to Show
7 Cause (“Quinto Decl.”), ¶ 7, Ex. A.) Plaintiffs refused that request. (See id.)
8 III.

FACTUAL BACKGROUND

9

Immediately after this this Court granted the preliminary injunction, VidAngel

10 began to investigate how it could comply with the injunction. (Harmon Decl., ¶ 2;
11 Declaration of Jarom McDonald in Support of Opposition to Ex Parte Application
12 For Order to Show Cause (“McDonald Decl.”), ¶¶2-3.) Due to the nature of its on13 line business and special blackout restrictions imposed on retailers by Roku and
14 other third parties during the holiday season, VidAngel discovered that it could not
15 modify its apps to remove Plaintiffs’ titles during the holiday blackout periods
16 without ceasing business operations entirely.
17

“VidAngel makes 84.3 percent of its sales through app stores such as Roku,

18 Apple, Google Play, and Amazon Fire TV.” (Harmon Decl., ¶ 3.) “To avoid risking
19 disruptions to their users’ experience during a critical time of the year, the Apple and
20 Roku stores do not permit modifications to their applications during the holiday
21 season.” Id. For example, on December 12 and December 23, respectively, Roku
22 and Apple entered into black-out periods that prohibit retailers from writing new
23 code modifying their apps. See id. (stating that Roku’s blackout period began on
24 December 12 before the Injunction issued). On December 13, 2016, VidAngel
25 contacted “all the mobile app stores is uses – Roku, Apple, Amazon, and Google – to
26 notify them of the entry of the preliminary injunction and VidAngel’s intention to
27 remove both plaintiffs’ works and all other works we do not control from our site if
28

ER041

4 VIDANGEL’S OPPOSITION TO PLAINTIFFS’ EX
PARTE APPLICATION

Case 2:16-cv-04109-AB-PLA Document 164 Filed 12/23/16 Page 9 of 16 Page ID #:5260

1 we could not obtain a stay of the preliminary injunction.” (McDonald Decl., ¶ 3.)
2 VidAngel is frantically writing code to remove Plaintiffs’ titles from its online
3 library, including “removing certain third-party integrations from its back-end
4 application interface,” reviewing “the codebase to annotate places to touch to turn off
5 systems supporting the sale, streaming, and buy-back of plaintiffs’ works,” and
6 “cleaning, vacuuming, and archiving old data from [VidAngel’s] production
7 database.” (MacDonald Decl., ¶¶ 3-9.) VidAngel continues to implement these
8 efforts and plans to diligently carry them out until they are completed. (Id. at ¶ 9.)
9 Despite VidAngel’s efforts, it was not been able to complete the appropriate changes
10 to its system before the blackout periods imposed by Roku, Apple and other on-line
11 stores went into effect. (Harmon Decl., ¶ 3.) In fact, “because each of the apps is
12 developed to use the interfaces native to a given platform, there are some functions
13 that must be hard-coded in, such as how to handle errors, and how to disseminate app
14 notifications.” (Id., ¶ 12.) It takes substantial time to properly write and implement
15 changes to VidAngel’s technical system to prevent publishing bugs, avoid rejection
16 by the app review process and ensure that any changes do not break older versions of
17 the apps. (Id.)
18

Due to special exigent circumstances surrounding the holiday blackout

19 periods, VidAngel determined that it would be unable to modify its “system to block
20 access to just the plaintiffs’ titles without causing major customer confusion about
21 which titles are and are not available for purchase.” (Id., ¶ 4.) “[I]f VidAngel were
22 to remove existing Plaintiffs’ titles from its library during the black-out period,” it
23 would appear to VidAngel’s customers that those titles are available even though
24 VidAngel had removed them from its library, customers would be unable to use the
25 app functionality that currently enables them to sell back and receive monetary credit
26 for titles that they previously purchased, and VidAngel would be unable to
27 communicate in an effective manner through its apps with customers about these
28

ER042

5 VIDANGEL’S OPPOSITION TO PLAINTIFFS’ EX
PARTE APPLICATION

Case 2:16-cv-04109-AB-PLA Document 164 Filed 12/23/16 Page 10 of 16 Page ID #:5261

1 changes to its system. (Id., ¶¶ 4, 7-11.) Indeed, “[i]f VidAngel were forced to shut
2 down without messaging within the apps to directly explain the situation for its
3 approximately 200,000 customers, its team of 14 people would be unable to address
4 the influx even if they devoted their holidays entirely to damage control. (Id., ¶ 11.)
VidAngel estimates that it “will require until January 5, 2017, to modify [its]

5

6 Apple app based on [its] prior experience with [Apple’s] app store and its resumption
7 date for modifying apps, and until January 25, 2017, for the Roku apps because Roku
8 does not permit modifications to be submitted until January, and then requires two
9 weeks for expedited review.” (Id., ¶ 13.)
10 IV.

ARGUMENT

11

A.

12
13
14
15
16
17
18
19
20
21
22
23
24

PLAINTIFFS’ CONTEMPT APPLICATION IS UNNECESSARY
BECAUSE VIDANGEL HAS DECLARED THAT IT WILL
COMPLY WITH THE PRELIMINARY INJUNCTION

Plaintiffs’ application for a finding of contempt, brought on an ex parte basis
to require VidAngel to respond on the last business day before Christmas, will
accomplish nothing.1 VidAngel is not contemptuous of the Court’s order granting a
preliminary injunction. VidAngel fully appreciates the considerable time the Court
afforded the parties to argue the merits and acknowledges the time the Court took to
prepare its opinion granting the preliminary injunction. VidAngel further respects
fully the Court’s authority to order that it be preliminarily enjoined.
What the parties neither briefed nor argued, and what the Court could not
know, was the effect the immediate implementation of that order would have. Far
from the mere inconvenience Plaintiffs suggest, as reflected in Harmon Declaration it
is impossible to comply with the injunction as quickly as Plaintiffs demand without

25
1

Reflecting that its purpose is to prejudice VidAngel rather than allow the trial
and appellate courts to decide the parties’ dispute on the merits, Plaintiffs even
27 rejected VidAngel’s request to be allowed to respond immediately after Christmas.
26

28

ER043

6 VIDANGEL’S OPPOSITION TO PLAINTIFFS’ EX
PARTE APPLICATION

Case 2:16-cv-04109-AB-PLA Document 164 Filed 12/23/16 Page 11 of 16 Page ID #:5262

1 ceasing all business operations entirely, including significant non-enjoined activities,
2 and without creating enormous consumer confusion and ill will toward VidAngel.
3

As the Court does know, VidAngel promptly requested a stay of the

4 preliminary injunction, asking either that implementation be stayed pending an
5 expedited review of the propriety of issuing the injunction or until the Ninth Circuit
6 can decide whether to grant an emergency stay. If the Court denies VidAngel’s
7 application for a stay pending appeal, VidAngel will be required to request an
8 emergency stay in the Ninth Circuit within seven days.
9

Allowing VidAngel the short time it will require to get a decision on its stay

10 request made to this Court on December 14th and, if necessary, on an emergency
11 stay request which must be made within one week of the Court’s decision on the
12 pending stay request, will allow VidAngel to avoid the total disruption of its non13 enjoined business activities.
14

Although Plaintiffs point to one app they claim could have been modified to

15 eliminate their content before the app services’ blackout period, Plaintiffs do not
16 dispute that when the injunction issued, it was already too late to modify most of
17 VidAngel’s apps, including its most important one—Roku. Plaintiffs also ignore that
18 apps are modified not by flipping a switch but by writing code—an activity that takes
19 time to accomplish. Plaintiffs further ignore that VidAngel must write different code
20 for each app. That process alone will require at least a number of days.
21

“As a technical matter, VidAngel has the ability [] to disable in-app purchasing

22 for all titles, but it cannot use the existing in-app purchasing functionality to restrict
23 certain titles that have been previously been made available for purchase.” (Harmon
24 Decl., ¶ 7.) VidAngel has worked tirelessly, “pouring through codebase to annotate
25 places [it] would have to touch to turn off systems supporting the sale, streaming,
26 and buy-back of plaintiffs’ works.” (McDonald Decl., ¶ 5.) “Also on December 19,
27 [VidAngel] began writing code to short circuit all requests to purchase Plaintiffs’
28

ER044

7 VIDANGEL’S OPPOSITION TO PLAINTIFFS’ EX
PARTE APPLICATION

Case 2:16-cv-04109-AB-PLA Document 164 Filed 12/23/16 Page 12 of 16 Page ID #:5263

1 titles while returning an error message. Sending an error message would, of course,
2 result in customer complaints but we could not find a better solution without
3 updating our apps. Unfortunately, [VidAngel] is in the annual holiday “blackout
4 period” during which the app stores do not permit us to modify our apps.” (Id., ¶ 7.)
5 The code to short circuit all requests to purchase Plaintiffs’ works is still not fully
6 tested or capable of being deployed. (See Id.)
7

Further, the issuance of the preliminary injunction has led the financial backers

8 of VidAngel’s payment processing provider to require that it abandon VidAngel as a
9 client. (Quinto Decl., ¶ 2.) Finding a new payment processing provider, configuring
10 all of VidAngel’s apps and its Internet site to work with a different provider, and
11 uploading all the relevant data files also requires a substantial amount of effort and
12 cannot be completed overnight.
13

Finally, Plaintiffs overlook that VidAngel is a start-up company with 51

14 employees spread across all 10 aspects of its business. (Quinto Decl., ¶ 4.) Plaintiffs
15 speculate that VidAngel could effectively communicate with its customers to explain
16 any serious issues they would experience resulting from the piecemeal takedown of
17 Plaintiffs’ works. This is not true. Although VidAngel attempts to regularly
18 communicate with its customers, its communications are not read by the vast
19 majority of them. (See Harmon Decl., ¶ 15.) Such efforts would only reach
20 VidAngel’s most fervent users. Additionally, as a practical matter, VidAngel has
21 nowhere near the manpower required to simultaneously accomplish all tasks
22 necessary to block access to plaintiffs’ works without causing major disruption to the
23 rest of its business, including offering the well over 1,000 movies whose content
24 owners have not objected to VidAngel’s service.
B.
VIDANGEL HAS TAKEN REASONABLE STEPS TO
25
SUBSTANTIALLY COMPLY WITH THE COURT’S ORDER
26
A party claiming civil contempt must demonstrate a violation of the court's
27
order by clear and convincing evidence. In re Dual-Deck Video Cassette Recorder
28
8 VIDANGEL’S OPPOSITION TO PLAINTIFFS’ EX

ER045

PARTE APPLICATION

Case 2:16-cv-04109-AB-PLA Document 164 Filed 12/23/16 Page 13 of 16 Page ID #:5264

1 Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993). Accordingly, the moving party
2 must establish that “(1) that [the alleged contemnor] violated the court order, (2)
3 beyond substantial compliance, (3) not based on a good faith and reasonable
4 interpretation of the order, (4) by clear and convincing evidence.” United States v.
5 Bright, 596 F.3d 683, 694 (9th Cir.2010) (quoting Labor/Cmty. Strategy Ctr. v. L.A.
6 County Metro. Trans. Auth., 564 F.3d 1115, 1123 (9th Cir.2009) ); see also F.T.C. v.
7 Affordable Media, 179 F.3d 1228, 1239 (9th Cir.1999) (“The standard for finding a
8 party in civil contempt is well settled: The moving party has the burden of showing
9 by clear and convincing evidence that the contemnors violated a specific and definite
10 order of the court.”).
11

Plaintiffs cannot meet their steep burden to prove that VidAngel should be

12 held in civil contempt. VidAngel reasonably interpreted the Order to apply to only to
13 Plaintiffs’ works and to allow VidAngel a reasonable time to make the necessary
14 technical modifications to its platforms to allow VidAngel to remove Plaintiffs’
15 works without completely shutting down its business. Additionally, VidAngel has
16 taken reasonable steps to substantially comply with the Order. Under these
17 circumstances, it would be inappropriate to exercise the extreme remedy of
18 contempt.
19
20
21

1.

VidAngel Has Acted Based on a Reasonable Interpretation of
the Preliminary Injunction Order.

As a threshold matter, it would not be fair to hold VidAngel in contempt

22 because its actions have been in accordance with a good faith and reasonable
23 interpretation of the Order. Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126,
24 1130 (9th Cir. 2006) (“[A] person should not be held in contempt if his action
25 appears to be based on a good faith and reasonable interpretation of the court’s
26 order.”). VidAngel reasonably interpreted the Order to apply to Plaintiffs’
27 copyrighted works only and to allow VidAngel a reasonable time to make the
28

ER046

9 VIDANGEL’S OPPOSITION TO PLAINTIFFS’ EX
PARTE APPLICATION

Case 2:16-cv-04109-AB-PLA Document 164 Filed 12/23/16 Page 14 of 16 Page ID #:5265

1 necessary technical modifications to its platforms to remove Plaintiffs’ works
2 without completely shutting down its business. (See Quinto Decl., ¶ 3.)
3

The Order provides that VidAngel is temporarily enjoined with respect to

4 Plaintiffs’ copyrighted works only. (Dkt. 144 at 22.) Moreover, the Order sets no
5 express time by which VidAngel was required to comply. As a result, VidAngel
6 reasonably interpreted that the Order does not require VidAngel to shut down its
7 entire business, which offers copyrighted content controlled by over a hundred non8 party studios and distributors that have not expressed any complaint to VidAngel.
9 (Harmon Decl., ¶ 6.) To comply with the Order in good faith, VidAngel
10 immediately began to implement the necessary technical modifications to its system
11 to disable customers from purchasing or watching Plaintiffs’ works. (McDonald
12 Decl., ¶¶ 2-3.) This is no trivial task. To accomplish this without shutting down
13 entirely or causing significant harm to its consumers, VidAngel has experienced
14 technical barriers requiring time to overcome. (See Id., ¶¶3-9.) VidAngel simply
15 needs a reasonable time to implement these changes to fully comply with the Order
16 without disabling non-enjoined aspects of its business.
17
18
19

2.

VidAngel Has Taken Reasonable Steps to Substantially
Comply with the Order.

Even when a party has failed to technically comply with an order, a finding of

20 contempt is not appropriate if the party has taken all reasonable steps to substantially
21 comply with the court order. Vertex Distribg., Inc. v. Falcon Foam Plastics, Inc.,
22 689 F.2d 885, 891 (9th Cir. 1982); see also Newman v. Graddick, 740 F.2d 1513,
23 1525 (11th Cir.1984) (“[A] person who attempts with reasonable diligence to comply
24 with a court order should not be held in contempt.”). Importantly, the “[a]bility to
25 comply is the crucial inquiry, and ‘a court should weigh all evidence properly before
26 it determines whether or not there is actually a present ability to obey.’ ” United
27 States v. Ayres, 166 F.3d 991, 994 (9th Cir.1999) (citing United States v. Drollinger,
28

ER047

10 VIDANGEL’S OPPOSITION TO PLAINTIFFS’ EX
PARTE APPLICATION

Case 2:16-cv-04109-AB-PLA Document 164 Filed 12/23/16 Page 15 of 16 Page ID #:5266

1 80 F.3d 389 (9th Cir.1996)).
2

Here, VidAngel has taken reasonable steps to substantially comply with the

3 Order. Upon receiving the Order, VidAngel immediately investigated how to
4 comply with the injunction without going out of business and without harming its
5 customers. (Harmon Dec., ¶ 2.) VidAngel has stopped buying and uploading copies
6 of Plaintiffs’ works. (Id., ¶ 15.) Unfortunately, two of Plaintiffs’ new titles were
7 uploaded after the Order was issued, however, that is not indicative of VidAngel’s
8 actions as a whole. (Harmon Dec., ¶ 16.) VidAngel has since taken great efforts to
9 ensure that no title owned or licensed by Plaintiffs is added. (Id.)
10

Furthermore, VidAngel has been forthright about its intent remove Plaintiffs’

11 titles from its platforms as soon as practicable. VidAngel submitted Neal Harmon’s
12 declaration dated December 21, 2016, in an effort to notify the Court of its efforts to
13 fully comply with the Order. As Mr. Harmon explained, VidAngel is currently
14 limited in its ability to stop its customers from streaming Plaintiffs’ titles. The vast
15 majority of VidAngel’s sales are made through app stores, including Roku and
16 Apple. (Harmon Dec., ¶ 3.) VidAngel cannot modify its Roku and Apple apps to
17 remove Plaintiffs’ titles during the holiday blackout period unless it removes all
18 21,000 owned titles, thus creating massive customer confusion and a tidal wave of
19 customer support requests. (Id.) The only alternatives would affect all titles, not just
20 Plaintiffs’ titles. This would result in a complete shutdown of VidAngel’s business
21 and significant customer confusion. Despite its current limitations, VidAngel has
22 implemented a plan to make the necessary technical changes to its applications to
23 address the order once the blackout period ends. Plaintiffs’ contention that Mr.
24 Harmon’s attempt to update the Court on VidAngel’s compliance efforts somehow
25 demonstrates VidAngel’s bad faith is misguided. (Mot. at 5-6.) Mr. Harmon no
26 longer writes code for VidAngel and could not modify it himself. Thus, VidAngel’s
27 reasonable efforts to substantially comply with the Court’s preliminary injunction
28

ER048

11 VIDANGEL’S OPPOSITION TO PLAINTIFFS’ EX
PARTE APPLICATION

Case 2:16-cv-04109-AB-PLA Document 164 Filed 12/23/16 Page 16 of 16 Page ID #:5267

1 order should not be found contemptuous.
2

C.

Plaintiffs Request for Coercive Monetary Sanctions Is Unnecessary

3

District courts are entitled to exercise considerable discretion in selecting a

4 means to enforce an order. Shillitani v. United States, 384 U.S. 364, 370 (1966)
5 (“[C]ourts have inherent power to enforce compliance with their lawful orders
6 through civil contempt.”). If this Court determines contempt sanctions are
7 appropriate, it is “obliged to use the least power adequate to the end proposed.”
8 Spallone v. United States, 493 U.S. 265, 276 (1990). Plaintiffs’ request for a
9 coercive monetary sanction of $10,000 to $20,000 per day is inappropriate. In the
10 case Plaintiffs cite, CBS Broad. Inc. v. FilmOn.com, Inc., 814 F.3d 91, 103 (2d Cir.
11 2016), when the court deemed coercive monetary sanctions necessary, it noted the
12 sanctioned party’s “repeated disregard for federal injunctions.” Here, VidAngel has
13 never been found to have violated a court order and has declared that it will fully
14 comply with the Order within a reasonable time and intends to comply strictly with
15 the injunction if no stay is granted.
16 V.

CONCLUSION

17

For the foregoing reasons, Plaintiffs’ request for an order to show cause should

18 be denied.
19
20

DATED: December 23, 2016
BAKER MARQUART LLP

21
22
23
24
25

/s/ Jaime W. Marquart
Jaime W. Marquart
Scott M. Malzahn
Attorneys for Defendant and
Counterclaimant VidAngel, Inc.

26
27
28

ER049

12 VIDANGEL’S OPPOSITION TO PLAINTIFFS’ EX
PARTE APPLICATION

Case 2:16-cv-04109-AB-PLA Document 164-1 Filed 12/23/16 Page 1 of 10 Page ID
#:5268

BAKER MARQUART LLP

2029 CENTURY PARK EAST, 16TH FLOOR
LOS ANGELES, CA 90067
Tel: [phone] ● Fax: [phone]

1 Ryan G. Baker (Bar No. 214036)
[e-mail]
2 Jaime Marquart (Bar No. 200344)
[e-mail]
3 Scott M. Malzahn (Bar No. 229204)
[e-mail]
4 Brian T. Grace (Bar No. 307826)
[e-mail]
5 BAKER MARQUART LLP
2029 Century Park East, Sixteenth Floor
6 Los Angeles, California 90067
Telephone: [phone]
7 Facsimile: [phone]
8 Peter K. Stris (Bar No. 216226)
[e-mail]
9 Brendan Maher (Bar No. 217043)
[e-mail]
10 Elizabeth Brannen (Bar No. 226234)
[e-mail]
11 Daniel Geyser (Bar No. 230405)
[e-mail]
12 STRIS & MAHER LLP
725 South Figueroa Street, Suite 1830
13 Los Angeles, California 90017
Telephone: [phone]
14 Facsimile: [phone]
15 David W. Quinto (Bar No. 106232)
[e-mail]
16 3007 Franklin Canyon Drive
Beverly Hills, California 90210
17 Telephone: [phone]
Facsimile: [phone]
18 Attorneys for Defendant and
19 Counterclaimant VidAngel, Inc.
20

UNITED STATES DISTRICT COURT

21

CENTRAL DISTRICT OF CALIFORNIA

22
23
24
25

WESTERN DIVISION
DISNEY ENTERPRISES, INC.;
LUCASFILM LTD. LLC;
TWENTIETH CENTURY FOX FILM
CORPORATION; AND WARNER
BROS. ENTERTAINMENT, INC.,

26
27

Plaintiffs,
vs.

CASE NO. 16-cv-04109-AB (PLAx)
DECLARATION OF NEAL
HARMON IN SUPPORT OF
VIDANGEL, INC.’S OPPOSITION
TO EX PARTE APPLICATION FOR
AN ORDER TO SHOW CAUSE
The Hon. André Birotte Jr.

28

ER050

DECLARATION OF NEAL HARMON IN
SUPPORT OF OPPOSITION TO EX PARTE
APPLICATION FOR ORDER TO SHOW CAUSE

Case 2:16-cv-04109-AB-PLA Document 164-1 Filed 12/23/16 Page 2 of 10 Page ID
#:5269

1

VIDANGEL, INC.,
Defendant.

2
3

VIDANGEL, INC.,

4

Counterclaimant,

5
6

Date Action Filed: June 9, 2016

vs.

8

DISNEY ENTERPRISES, INC.;
LUCASFILM LTD. LLC;
TWENTIETH CENTURY FOX FILM
CORPORATION; AND WARNER
BROS. ENTERTAINMENT, INC.,

9

Counterclaim Defendants.

7

10

BAKER MARQUART LLP

2029 CENTURY PARK EAST, 16TH FLOOR
LOS ANGELES, CA 90067
Tel: [phone] ● Fax: [phone]

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ER051

1

DECLARATION OF NEAL HARMON IN
SUPPORT OF OPPOSITION TO EX PARTE
APPLICATION FOR ORDER TO SHOW CAUSE

Case 2:16-cv-04109-AB-PLA Document 164-1 Filed 12/23/16 Page 3 of 10 Page ID
#:5270

1

I, Neal Harmon, declare as follows:

2
3
4
5

1.

counterclaimant VidAngel, Inc. I have personal knowledge of the facts set forth
herein and if called and sworn as a witness, I could and would testify competently
hereto.

6
7
8
9
10

2.

BAKER MARQUART LLP

2029 CENTURY PARK EAST, 16TH FLOOR
LOS ANGELES, CA 90067
Tel: [phone] ● Fax: [phone]

13
14
15
16
17
18
19
20
21
22
23
24
25

comply with the injunction without going out of business completely and without
causing unintended problems for our customers. I realized that we faced the
following problems, among others.
3.

First, unlike ClearPlay (which is able to offer its filtering of Google

Play’s streaming only to customers who access its eCommerce website online
through a desktop browser), VidAngel makes 84.3 percent of its sales through app
stores such as Roku, Apple, Google Play, and Amazon Fire TV. To avoid risking
disruptions to their users’ experience during a critical time of the year, the Apple
and Roku stores do not permit modifications to their applications during the holiday
season. These hard deadlines for publishing new apps, out of necessity, create
earlier deadlines for developers to submit builds of app updates for review and
approval by the respective app stores. For example, Roku, which has a thorough debug and user-interface testing process before publishing a company’s app, will not
accept any new app updates after November 15. As of December 12, 2016, this
holiday blackout window had already begun for the largest platform through which
VidAngel sells content (Roku - over a third of our purchases). I understand that we
are now in that holiday blackout window for Apple too, meaning that VidAngel
cannot modify its most popular apps until early January.

26
27

When I learned of the issuance of the preliminary injunction the night

of December 12, 2016, I immediately began to investigate how VidAngel could

11
12

I am a founder and the Chief Executive Officer of defendant and

4.

If VidAngel were to remove existing titles from its library during the

black-out period for modifying apps, the system could not be modified to recognize

28

ER052

1

DECLARATION OF NEAL HARMON IN
SUPPORT OF OPPOSITION TO EX PARTE
APPLICATION FOR ORDER TO SHOW CAUSE

Case 2:16-cv-04109-AB-PLA Document 164-1 Filed 12/23/16 Page 4 of 10 Page ID
#:5271

1

titles that were no longer available for sale. Those titles would still appear to be

2

available even though VidAngel had removed them. The only alternative would be

3

for VidAngel to completely turn off in-app purchasing across the board—which

4

would prevent VidAngel from offering content that it is directly licensed to filter

5

and stream or as to which the rights holders have no objection to VidAngel’s

6

service. As a result, during the app black-out period, we are unable to modify our

7

system to block access to just the plaintiffs’ titles without causing major customer

8

confusion about which titles are and are not available for purchase. To immediately

9

shutdown, we would have to block access to all titles.

10

5.

VidAngel has entered into licenses to filter and stream certain works

BAKER MARQUART LLP

2029 CENTURY PARK EAST, 16TH FLOOR
LOS ANGELES, CA 90067
Tel: [phone] ● Fax: [phone]

11

released by entities that are not party to the Directors Guild of America’s collective

12

bargaining agreement. For example, on September 12, 2016, we signed an

13

exclusive licensing contract with Excel Entertainment to filter and stream The Last

14

Descent commencing December 15, 2016. If we were required to shut down our

15

entire system immediately or disable in-app purchasing across the board because we

16

are currently unable to modify our apps to remove selected titles, we would

17

necessarily have to block access to any works we are licensed to filter and stream

18

(because the works catalog and purchasing system are coupled together).

19

6.

The rights for our content are controlled by over 125 studios or

20

distributors, the vast majority of whom have neither joined in the litigation nor

21

expressed any complaint to VidAngel. Since the injunction issued, we have been

22

contacting them to let them know that if VidAngel is unsuccessful in obtaining a

23

stay of the preliminary injunction, it will cease filtering and streaming them and will

24

also cease buying new DVD and Blu-ray discs of their movies unless they are

25

willing to enter into a covenant not to sue without waiver of any legal position or

26

argument for the duration of the appeal. To date, one such company—MGM—has

27

rejected our request for a covenant not to sue and we have yet to hear from many

28

ER053

2

DECLARATION OF NEAL HARMON IN
SUPPORT OF OPPOSITION TO EX PARTE
APPLICATION FOR ORDER TO SHOW CAUSE

Case 2:16-cv-04109-AB-PLA Document 164-1 Filed 12/23/16 Page 5 of 10 Page ID
#:5272

1

others.

2

7.

Even if VidAngel were able to update its apps despite the blackout

made available for purchase, rolling it back is not an easy process. This is because

5

the respective platform providers make in-app purchasing available as an all-or-

6

nothing option. As a technical matter, VidAngel has the ability completely to

7

disable in-app purchasing for all titles, but it cannot use the existing in-app

8

purchasing functionality to restrict certain titles that have previously been made

9

available for purchase. On the other hand, we cannot turn off in-app purchases

10

altogether because doing so would prevent us from selling and/or renting other

11

BAKER MARQUART LLP

period, it is not an easy process to modify in-app purchasing. Once a title has been

4

2029 CENTURY PARK EAST, 16TH FLOOR
LOS ANGELES, CA 90067
Tel: [phone] ● Fax: [phone]

3

content.

12

8.

In addition, until VidAngel can update its apps after the blackout

13

period, removing titles would also prevent customers from being able to use the app

14

functionality that currently enables them to sell back and receive monetary credit for

15

titles that they previously purchased. This would create confusion and a massive

16

customer support issue.

17

9.

Similarly, more than 20,000 discs in our vault are permanently owned

18

by VidAngel’s customers. Because 56 percent of the discs we sell have content

19

owned or licensed by the plaintiffs, a similar percentage likely applies to the

20

permanently owned discs. To immediately block access to all (or all of plaintiffs’)

21

existing titles, would cause a customer-relations nightmare to address the problem of

22

customers who permanently owned discs that they now could not watch, with no

23

explanation. VidAngel will need to communicate options to these customers, such

24

as receiving the physical DVD that they own.

25

10.

The app blackout period exacerbates these customer relations and

26

support issues. That is because until the apps can be updated (including to reflect

27

direct messaging to customers), there is no practical way to notify our customers of

28

ER054

3

DECLARATION OF NEAL HARMON IN
SUPPORT OF OPPOSITION TO EX PARTE
APPLICATION FOR ORDER TO SHOW CAUSE

Case 2:16-cv-04109-AB-PLA Document 164-1 Filed 12/23/16 Page 6 of 10 Page ID
#:5273

1

what we are doing or to let them know that VidAngel will give them credit for

2

selling their discs back to VidAngel. Although we have our customer’s e-mail

3

addresses, e-mail messages we send to our customers are typically opened only

4

about 20 percent of the time. As a consequence, many of our apps customers would

5

likely not understand why our system would neither permit them to sell their discs

6

back nor give them credit for doing so, or to stream content they previously

7

purchased and permanently own. We are trying to ensure that customers know

8

which movies they have purchased, even if they cannot watch them, and that they

9

have the opportunity to sell those movies back. To avoid creating enormous

BAKER MARQUART LLP

consumer ill will, we need time to make our apps ready to explain what is happening

11
2029 CENTURY PARK EAST, 16TH FLOOR
LOS ANGELES, CA 90067
Tel: [phone] ● Fax: [phone]

10

without having movies simply disappear from the apps without notice.

12

11.

The company is ill equipped to handle the influx of customer service

13

requests if it is not afforded that opportunity. In the wake of the preliminary

14

injunction ruling alone, VidAngel’s support tickets doubled from approximately

15

3,500 to 7000 per week. If VidAngel were forced to shut down without messaging

16

within the apps to directly explain the situation for its approximately 200,000

17

customers, its team of 14 people would be unable to address the influx even if they

18

devoted their holidays entirely to damage control.

19

12.

Regardless of the app blackout period, it will take time for VidAngel to

20

develop updated apps to address the issues that result from the preliminary

21

injunction order. Because each of the apps is developed to use the interfaces native

22

to a given platform, there are some functions that must be hard-coded in, such as

23

how to handle errors, and how to disseminate app notifications. To appropriately

24

implement drastic changes of the kind necessitated by the preliminary injunction,

25

such as removing all or a significant number of titles from the site, or removing the

26

ability to purchase a significant number of movies, work of this nature will be

27

required. All changes have to be thoroughly vetted and tested before VidAngel can

28

ER055

4

DECLARATION OF NEAL HARMON IN
SUPPORT OF OPPOSITION TO EX PARTE
APPLICATION FOR ORDER TO SHOW CAUSE

Case 2:16-cv-04109-AB-PLA Document 164-1 Filed 12/23/16 Page 7 of 10 Page ID
#:5274

1

submit them to the app stores; otherwise, the app review process will reject them

2

and/or we run the risk of publishing bugs. In addition, VidAngel has to ensure that

3

any changes do not break older versions of the apps, which customers may continue

4

to run.

5

13.

In summary, given the sweeping breadth of the injunction, which was

6

not limited to alleged DMCA violations but included activities governed by the

7

exclusive rights of copyright, VidAngel had three choices. It could (i) comply

8

immediately by disabling in-app purchases of all 2,500+ titles in its library and

9

breaking all titles on its apps; (ii) comply within a relatively short period by

BAKER MARQUART LLP

disabling specific titles but without preventing further purchases of those titles made

11
2029 CENTURY PARK EAST, 16TH FLOOR
LOS ANGELES, CA 90067
Tel: [phone] ● Fax: [phone]

10

through the use of cached apps and without preventing complaints from the owners

12

of 21,182 discs of plaintiffs' works; or (iii) remove access to plaintiffs' works in an

13

orderly manner by writing app modifications, submitting them to the app stores for

14

approval following the holiday "black-out" period, and attempting to notify its

15

customers through all available means of what was happening and why and

16

explaining that they could sell back discs they currently owned but could not re-

17

purchase them. To prevent irreparable injury to VidAngel through the generation of

18

consumer ill will and disruption of its business activities beyond those directly

19

affected by the injunction, VidAngel opted to pursue the third option.

20

14.

These difficulties with anything but the third option above can be

21

further illustrated through the example of Roku. VidAngel is the only channel on

22

Roku where titles in the video catalog are inextricably coupled with physical discs;

23

customers do not purchase access to streams but purchase actual physical discs, and

24

then use the Roku channel to watch that media with their filter preferences. It is

25

therefore my understanding, based upon my conversations with VidAngel’s tech

26

team, that:

27

(a) If we simply removed works from our catalog, customers who had legally

28

ER056

5

DECLARATION OF NEAL HARMON IN
SUPPORT OF OPPOSITION TO EX PARTE
APPLICATION FOR ORDER TO SHOW CAUSE

Case 2:16-cv-04109-AB-PLA Document 164-1 Filed 12/23/16 Page 8 of 10 Page ID
#:5275

1

and lawfully purchased those discs would, barring an app update, then lose

2

access to their own property. They would also no longer be able to see what

3

they had purchased, sell back purchased discs, etc.

4

(b) If we left the works in the catalog but turned off the ability to purchase or

5

watch them, it would, barring an app update, prevent customers from

6

continuing to watch works that are not part of this suit.

7

(c) If we turned off purchasing and streaming only on the backend API, it

8

would, barring an app update, cause serious errors for Roku customers, errors

9

which not only crash the VidAngel app but, it some situations, cause the Roku

BAKER MARQUART LLP

devices to reboot.

11
2029 CENTURY PARK EAST, 16TH FLOOR
LOS ANGELES, CA 90067
Tel: [phone] ● Fax: [phone]

10

(d) If we tried to short circuit the purchase flow so we didn't actually charge

12

customers (but didn't throw errors from the API response), customers would,

13

barring an app update, attempt to purchase works but have no feedback as to

14

why things aren't working, leading to a support nightmare. Additionally, Roku

15

customers who use in-app billing would, barring an app update, actually be

16

charged by Roku, but VidAngel would not be able to deliver what they paid

17

for, leading to a rash of Roku refunds (or customer chargebacks to Roku).

18

15.

To avoid the foregoing problems, we estimate that we will require until

19

January 5, 2017, to modify our Apple app based on our previous experience with its

20

app store and its resumption date for modifying apps, and until January 25, 2017, for

21

the Roku apps because it does not permit modifications to be submitted until

22

January and then requires two weeks for expedited review. Allowing VidAngel that

23

time would allow at least some of these issues to be mitigated if no stay of the

24

preliminary injunction order is granted in the interim.

25

16.

In addition to the steps noted above, we have taken the following

26

additional steps to comply with the Court’s Order and communicate the effect of the

27

order to our customers. We have surveyed our customer investors for common

28

ER057

6

DECLARATION OF NEAL HARMON IN
SUPPORT OF OPPOSITION TO EX PARTE
APPLICATION FOR ORDER TO SHOW CAUSE

Case 2:16-cv-04109-AB-PLA Document 164-1 Filed 12/23/16 Page 9 of 10 Page ID
#:5276

1

questions, written approximately thirty Frequently Asked Questions regarding the

2

effect of the Order, and prepared a blog post to send to customers if we are denied

3

any requested stay of the injunction. We have prepared an email to go to those

4

customers who have purchased movies and owned them when the Order was issued

5

but have not sold them back. We have prepared queries to disable the Plaintiffs’

6

titles immediately. We have created a query and export script to find all customers

7

who own the works and have not sold them back so that we can notify them. I have

8

also instructed the inventory team not to purchase additional discs of Plaintiffs’

9

works to add to inventory.

10

17.

On December 20, 2016, plaintiffs complained (through the

BAKER MARQUART LLP

2029 CENTURY PARK EAST, 16TH FLOOR
LOS ANGELES, CA 90067
Tel: [phone] ● Fax: [phone]

11

Supplemental Declaration of Kelly Klaus) that VidAngel had just added two new

12

titles they own. This was not intended to be disrespectful or a flout of anything, and

13

VidAngel has asked for a stay. Nevertheless, to address the concern identified in the

14

supplemental declaration, VidAngel will not add any other titles owned or licensed

15

by plaintiffs unless and until it obtains a stay of the preliminary injunction.

16

18.

In conclusion, I would like to emphasize that VidAngel wishes to

17

operate in a fully lawful manner and fully respects the authority of this Court. It is,

18

and always has been, VidAngel’s intent to comply fully and in all respects with all

19

orders the Court has issued or may issue. But in view of the facts that VidAngel has

20

now offered its service for just under two years; the plaintiffs waited 11 months after

21

receiving written notice explaining VidAngel’s service simply to file their complaint

22

(and never sent any preliminary cease-and-desist letters); the plaintiffs never sought

23

a temporary restraining order but took another four months after filing suit to

24

conduct discovery and have their motion heard; and the Court understandably took

25

several weeks to consider the parties’ various arguments and issue its ruling,

26

VidAngel requests that it be allowed a reasonable time to comply fully with the

27

terms of the preliminary injunction if no stay is granted in the interim.

28

ER058

7

DECLARATION OF NEAL HARMON IN
SUPPORT OF OPPOSITION TO EX PARTE
APPLICATION FOR ORDER TO SHOW CAUSE

Case 2:16-cv-04109-AB-PLA Document 164-1 Filed 12/23/16 Page 10 of 10 Page ID
#:5277

ER059

Case 2:16-cv-04109-AB-PLA Document 164-2 Filed 12/23/16 Page 1 of 10 Page ID
#:5278

1 Ryan G. Baker (Bar No. 214036)
[e-mail]
2 Ja.ime Marquart (Bar No. 200344)
Jmarq_uart(ci),bakermarg11art.com
3 Scott M. Mcifzahn (Bar No. 229204)
[e-mail]
4 Brian T. Grace (Bar No. 307826)
[e-mail]
5 BAKER MARQUART LLP
2029 Century Park East, Sixteenth Floor
6 Los Angeles, California 90067
Telephone: [phone]
7 Facsimile: [phone]

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9 ffrendan Maher (!3ar No. 217043)
[e-mail]
10 Elizabeth Brannen ~ar No. 226234)
elizabeth.brannen strismaher.com
11 Daniel Geyser~ar o. 230405)
daniel.ge_y~er strismaher.com
12 STRIS & MA R LLP
725 South FiglJeroa Street;.. Suite 1830
13 Los Angeles, California 9u017
Telephone: [phone]
14 Facsimile: [phone]

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15 David W. Quinto (Bar No. 106232)
[e-mail]
16 3007 Frallklin Canyon Drive
Beverly Hillsf California 9021 o
17 Telephone: [phone]
Facsimile: 732) 377-0388
18 Attorneys for Defendant and
19 Counterclaimant VidAngel, Inc.
20

UNITED STATES DISTRICT COURT

21

CENTRAL DISTRICT OF CALIFORNIA

22
23
24
25

WESTERN DIVISION
DISNEY ENTERPRISES, INC.;
LUCASFILM LTD. LLC;
TWENTIETH CENTURY FOX FILM
CORPORATION; AND WARNER
BROS. ENTERTAINMENT, INC.,

26
27

Plaintiffs,

CASE NO. 16-cv-04109-AB (PLAx)

DECLARATION OF DAVID
QUINTO IN SUPPORT OF
VIDANGEL, INC.'S OPPOSITION
TO PLAINTIFFS' EX PARTE
APPLICATION FOR AN ORDER
TO SHOW CAUSE

vs.

28

ER060

DECLARATION OF DAVID QUINTO IN
SUPPORT OF VIDANGEL'S OPPOSITION TO
PLAINTIFFS' EX PARTE APPLICATION

Case 2:16-cv-04109-AB-PLA Document 164-2 Filed 12/23/16 Page 2 of 10 Page ID
#:5279

1

VIDANGEL, INC.,
Defendant.

2

The Hon. Andre Birotte Jr.
Date Action Filed: June 9, 2016

3
4

VIDANGEL, INC.,
Counterclaimant,

5
vs.

6
7
8

9

DISNEY ENTERPRISES, INC.;
LUCASFILM LTD. LLC·
TWENTIETH CENTURY FOX FILM
CORPORATION; AND WARNER
BROS. ENTERTAINMENT, INC.,

10

Counterclaim Defendants.

11

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26
27
28

ER061

DECLARATION OF DAVID QUlNTO IN
SUPPORT OF VLDANGEL OPPQ JTJ N TO
PLATNTTFFS ' EX ?ARTE APPLI ATION

Case 2:16-cv-04109-AB-PLA Document 164-2 Filed 12/23/16 Page 3 of 10 Page ID
#:5280

1

I, David Quinto, declare as follows:

2

3
4

1.

Inc. I make this declaration of my personal and firsthand knowledge and, if called
and sworn as a witness, I could and would testify competently hereto.

5
6
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I am the general counsel of defendant and cross-complainant VidAngel,

2.

The issuance of the preliminary injunction herein has caused

complications that we did not anticipate. As one example, the financial backer of
the company responsible both for processing payments made by VidAngel
customers using either our Web site or our various apps and for processing
VidAngel' s re-purchases of discs from consumers who decide to sell them back has
demanded that our payment processor cease doing business with VidAngel. I have
been in daily, and frequently several times daily, communication with attorneys for
the payment processing firm seeking to resolve the situation. In the meantime,
VidAngel has been working to prepare another payment processor to replace the
current payment processor, if necessary. In my understanding, that will not be a
simple process owing to the facts that the service must operate across multiple apps
as well as VidAngel's Web site, and will need to conform to an entirely different
application programming interface for its new payment processor. VidAngel' s new
payment processor does not support customer data like the old system did. This
change will require new database tables and software for VidAngel and will require
new customer support tools to process refunds. Acknowledging these difficulties, I
received a message on December 23rd from VidAngel' s payment processor that
stated in part: "We understand that switching payment providers can be challenging
and any change at this time of year is especially difficult. We will continue to keep
you apprised of any key developments and try our best to minimize the disruption to
your business in the event of an adverse decision." The payment processor also said
that it might be required to terminate processing for VidAngel as early as December
29.

28

ER062

1

DECLARATION OF DAVID QUINTO IN
SUPPORT OF EX PARTE APPLICATION TO
STAY

Case 2:16-cv-04109-AB-PLA Document 164-2 Filed 12/23/16 Page 4 of 10 Page ID
#:5281

I

3.

In my experience, when immediate compliance with an injunction

2

would cause a business to suffer a major disruption of its non-enjoined business

3

activities, it is the custom and practice to seek an immediate stay of the injunction to

4

seek a reasonable amount of time in which to comply. In a case I had in this district,

5

for example, Judge Dean Pregerson preliminarily enjoined a business I represented

6

from using its corporate name. Immediate compliance with that order would have

7

required that the business shutter its doors while registering a new corporate name,

8

changing its letterhead, changing its business cards, changing its domain name,

9

changing its Web site, changing its marketing and advertising materials, and so

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operations while undertaking all the tasks required to change its corporate

12

identity. Judge Pregerson understood both that my client was not being

13

contemptuous in failing to comply immediately with the injunction and that

14

immediate implementation of the injunction would cause my client to suffer an

15

unnecessary disruption of its business. He therefore ordered that my client comply

16

within 30 days.

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on. My client therefore sought a stay to allow it to continue conducting business

f-

The parties never briefed or explained to this court the reasons why it is

18

impossible for VidAngel to comply immediately with the preliminary injunction

19

without ceasing business activities entirely. At present, VidAngel has 51

20

employees. They are divided among its 10 departments: Accounting, Customer

21

Support, Design, Executive, Inventory, Legal, Marketing, Stream Team, Tagging,

22

and Tech Team. The work required to implement the preliminary injunction

23

smoothly is extraordinarily labor intensive. As but one example, I am trying to

24

obtain consent-not-to-sue agreements from the various content creators and/or

25

distributors whose content VidAngel makes available. I am doing so because, apart

26

from plaintiffs Goined this week by MGM), none has ever objected to VidAngel's

27

service but VidAngel does not want to risk exposure to intentional infringement

28

ER063

2

DECLARATION OF DAVID QUINTO IN
SUPPORT OF VIDANGEL'S OPPOSITION TO
PLAINTIFFS' EX PARTE APPLICATION

Case 2:16-cv-04109-AB-PLA Document 164-2 Filed 12/23/16 Page 5 of 10 Page ID
#:5282

1

claims in light of the rationale behind this Court's ruling. There are more than 125

2

such entities (including plaintiffs and their affiliates). They are found not just in the

3

United States but in other countries, as well. Before I can request a consent-not-to-

4

sue, I must identify their respective general counsels or outside counsel and obtain

5

contact information for such persons. That arduous process is complicated by the

6

demands on my time occasioned by over-seeing the on-going litigation, responding

7

to concerns raised by investors in our recent Regulation A+ stock offering, apprising

8

both the SEC and our major financial backers of the status of the litigation, and

9

working out the legal details associated with offering new content controlled by

10

VidAngel to prevent our customer base from abandoning us.

11
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preliminary injunction or the Court's authority to issue it. Further, I wish to advise

13

the Court categorically that VidAngel will comply with preliminary injunction, fully

14

and immediately, if VidAngel is unable to obtain a stay of its enforcement.

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hear argument concerning whether contempt should be found solely for the purpose

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19

may issue ifVidAngel is then in compliance with the Court's order. Accordingly,

20

if either VidAngel is in compliance with the preliminary injunction or enforcement

21

of the preliminary injunction has been stayed before the Court makes a finding of

22

contempt, no sanction may be imposed. Given that VidAngel has unequivocally

23

confirmed that it is not refusing to comply with the Court' s order but will comply

24

immediately if it is unable to obtain a stay, there is no need to burden the Court to

25

conduct a contempt proceeding.

26
27

7.

In light of the holidays and pre-existing travel plans for many of its

team members, VidAngel's counsel asked Plaintiffs to stipulate to permit VidAngel

28

ER064

3

DECLARATION OF DAVID QUINTO IN
SUPPORT OF VIDANGEL'S OPPOSITION TO
PLAINTIFFS' EX PARTE APPLICATION

Case 2:16-cv-04109-AB-PLA Document 164-2 Filed 12/23/16 Page 6 of 10 Page ID
#:5283

1 to file its opposition to the ex parte application on December 26 or 27. Plaintiffs

2

refused this request. A true and correct copy of this email correspondence is

3

attached as Exhibit A.

4
5

6

I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct

7

Executed this 23rd day of December, 2016, at Los Angeles, California.

8

9
10

David W. Quinto

11
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28
4

ER065

DECLARATlO Of DAVID QUINTO JN
SUPPORT OF VIDA GEL'S OPPOSJTION TO
PLAI TLFFS' EXPARTE APPLICATION

Case 2:16-cv-04109-AB-PLA Document 164-2 Filed 12/23/16 Page 7 of 10 Page ID
#:5284

EXHIBIT A

ER066

Case 2:16-cv-04109-AB-PLA Document 164-2 Filed 12/23/16 Page 8 of 10 Page ID
#:5285
Brian Grace
Ryan Baker
Thursday, December 22, 2016 7:20 PM
Klaus, Kelly
Scott Malzahn; Brian Grace; Jaime Marquart; Ehler, Rose; Lunsford, Julie; Bennett, Allyson
Re: Disney Enterprises, Inc., et al. v. VidAngel, Inc.; USDC Central District Case No. 16cv-04109 AB (PLAx)

From:

Sent:
To:

Cc:
Subject:

Kelly,
Happy holidays to you and your colleagues, as well!
Best,
Ryan
From: "Klaus, Kelly" <[e-mail]>

Date: Thursday, December 22, 2016 at 2:34 PM
To: Ryan Baker <[e-mail]>

Cc: Scott Malzahn <[e-mail]>, Brian Grace <[e-mail]>, Jaime Marquart
<[e-mail]>, "Ehler, Rose" <[e-mail]>, "Lunsford, Julie" <[e-mail]>,
"Bennett, Allyson" <[e-mail]>
Subject: RE : Disney Enterprises, Inc., et al. v. VidAngel, Inc.; USDC Central District Case No. 16-cv-04109 AB (PLAx)
Hi Ryan Thanks for your email. Given VidAngel's continued refusal to comply with the Preliminary Injunction, Plaintiffs cannot
stipulate to extend VidAngel' s time to respond to the ex parte application. VidAngel's conduct is unacceptable and
requires the Court's intervention as soon as possible.
I appreciate that you do not take this personally. I have extended courtesies to your team when possible; you have
reciprocated, which I appreciate; and I know that practice will continue on both sides when circumstances allow.
Notwithstanding all that is going on, I do wish you and your colleagues the best for the holidays and new year.
Regards,
Kelly

From: Ryan Baker [mailto:[e-mail]]
Sent: Thursday, December 22, 2016 1:33 PM
To: Klaus, Kelly
Cc: Scott Malzahn; Brian Grace; Jaime Marquart; Ehler, Rose; Lunsford, Julie; Bennett, Allyson
Subject: Re: Disney Enterprises, Inc., et al. v. VidAngel, Inc.; USDC Central District Case No. 16-cv-04109 AB (PLAx)
Kelly,
Hope you' re enjoying the holidays. By the looks of it, you' re enjoying them more now than you were yesterday! On a
related note, would your clients be willing to stipulate to permit VidAngel to file its opposition to your Ex Parte re
1

ER067

Case 2:16-cv-04109-AB-PLA Document 164-2 Filed 12/23/16 Page 9 of 10 Page ID
#:5286
Contempt Monday or Tuesday of next week? Many of our team are already traveling for the holidays and at least
temporarily unavailable. We would appreciate the courtesy.
Of course, I will not take it personally if we cannot agree to some accommodation.
Please let me know at your earliest convenience.
Thanks,
Ryan
Ryan G. Baker
Baker Marquart LLP
Direct : 424.652.7801
rbaker@bakerrnarguart. corn
www.bakermarquart.corn

From: "Ehler, Rose" <[e-mail]>
Date: Thursday, December 22, 2016 at 12:09 PM
To: "Lunsford, Julie" <Julie [e-mail]>, Jaime Marquart <[e-mail]>, Ryan Baker

<[e-mail]>, Brian Grace <[e-mail]>, David Quinto <[e-mail]>,
Scott Malzahn <[e-mail]>, "[e-mail]"
<[e-mail]>, "[e-mail]" <Elizabeth [e-mail]>,
"[e-mail]" <[e-mail]>, Peter Stris <[e-mail]>,
"[e-mail]" <twagniere@blechercollins .com>
Cc: "Klaus, Kelly" <[e-mail]>, "Bennett, Allyson" <[e-mail]>
Subject: RE: Disney Enterprises, Inc., et al. v. VidAngel, Inc.; USDC Central District Case No. 16-cv-04109 AB (PLAx)
Counsel :
Per chambers rules, Julie's email serves as notice that any opposition papers must be filed 24 hours (or one court day)
from this service.
Thank you,
Rose
Rose Leda Ehlar
415 .5l 2.40.i1

From: Lunsford, Julie

Sent: Thursday, December 22, 2016 12:05 PM
To: [e-mail]; [e-mail]; [e-mail]; [e-mail];
[e-mail]; [e-mail]; [e-mail];
mblecher@blechercol Ii ns.com; peter .stris@strisma her .com; twag niere@blechercol Ii ns .com
Cc: Klaus, Kelly; Ehler, Rose; Bennett, Allyson
Subject: Disney Enterprises, Inc., et al. v. VidAngel, Inc.; USDC Central District Case No. 16-cv-04109 AB (PLAx)

Counsel:
Attache d please find the Ex Pa rte Applica t ion, Klau s Declarat ion and [Proposed] Orde r that
were e-filed this morning. Please feel free to contact me if you have any questions.
2

ER068

Case 2:16-cv-04109-AB-PLA Document 164-2 Filed 12/23/16 Page 10 of 10 Page ID
#:5287
Thank you,
Julie Lunsford
Ju!ie IN. Lunsford · L•r:gal S;;;·eretary
Assistant to ;\;Ja rtin D. 80 ·n, Dav id H. Fry, Ke lly M. i'C I Ei u ~> ~'
Munger, Tolle$ & Olson LLP
560 Mi:::.sion Street : Sr> n i-ra,1
dsco . CA 94 105
Tel: 4 i 5Si 2.4003 [e-mail] www.mto.com

Joshua Patash n : ~<

3

ER069

Case 2:16-cv-04109-AB-PLA Document 164-3 Filed 12/23/16 Page 1 of 5 Page ID #:5288

1 Rxan G. Baker (Bar No. 214036)
rbaker(a), bakermarquart. com
2 Ja~me Marquart (Bar No. 200344)
Jmarquart(a), bakermarguart. com
3 Scott M. Mruzahn (Bar No. 229204)
[e-mail]
4 Brian T. Grace (Bar No. 307826)
bgrace@,bakermarquart.com
5 BAKER'MARQUARTLLP
2029 Century Park East, Sixteenth Floor
6 Los Angeles, California 90067
Telephone: [phone]
7 Facsimile: (424) 6527850
8 PeterK. Stris (Bar No. 216226)
[e-mail]
9 Brendan Maher (!3arNo. 217043)
brendan [e-mail]
1O Elizabeth Brannen ~ar No. 226234)
elizabeth.brannen strismaher.com
11 Daniel Geyser~ar o. 230405)
daniel.geyser strismaher.com
12 STRIS & MA R LLP
725 South Figueroa Street, Suite 1830
13 Los Angeles, California 9001 7
Telephone: [phone]
14 Facsimile: [phone]
15 David W. Quinto (Bar No. 106232)
[e-mail]
16 3007 Fran'Klin Canyon Drive
Beverly Hillst California 9021 o
17 Telephone: [phone]
Facsimile: 732) 377-0388
18 Attorneys for Defendant and
19 Counterclaimant VidAngel, Inc.
20

UNITED STATES DISTRICT COURT

21

CENTRAL DISTRICT OF CALIFORNIA

22
23
24
25

WESTER.."1\l" DIVISION
DISNEY ENTERPRISES, INC.; LUCASFILM
LTD. LLC; TWENTIETH CENTURY FOX
FILM CORPORATION; AND WARNER BROS.
ENTERTAINMENT, INC.,

Plaintiffs,

26
27
28

vs.

CASE NO. 16-cv-04109-AB (PLAx)
DECLARATION OF JAROM
MCDONALD IN SUPPORT OF
VIDANGEL, INC.'S OPPOSITION
TO PLAINTIFFS' EXPARTE
APPLICATION FOR AN ORDER
TO SHOW CAUSE

VIDANGEL, INC.,
DECLARATION OF JAROM MCDONALD IN
SUPPORT OF VIDANGEL'S OPPOSITION TO
PLAINTIFFS' EX PARTE APPLICATION

ER070

Case 2:16-cv-04109-AB-PLA Document 164-3 Filed 12/23/16 Page 2 of 5 Page ID #:5289

The Hon. Andre Birotte Jr.

Defendant.

1

Date Action Filed: June 9, 2016
2
3
4

VIDANGEL, INC.,
Counterclaimant,

5
vs.

6
7
8

DISNEY ENTERPRISES, INC.; LUCASFILM
LTD. LLC; TWENTIETH CENTURY FOX
FILM CORPORATION; AND WARNER BROS .
ENTERTAINMENT, INC.,

9

Counterclaim Defendants.

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2

ER071

DECLARATION OF JAROM MCDONALD IN
SUPPORT OF VIDANGEL'S OPPOSITION TO
PLAINTIFFS' EX PARTE APPLICATION

Case 2:16-cv-04109-AB-PLA Document 164-3 Filed 12/23/16 Page 3 of 5 Page ID #:5290

1

I, Jarom McDonald, declare as follows:

2

1.

I am the director of engineering for VidAngel and, as such, head its

3

Tech Team. I make this declaration of my personal and firsthand knowledge and, if

4

called and sworn as a witness, I could and would testify competently hereto.

5

2.

I learned that a preliminary injunction had issued in the studios' lawsuit

6

against VidAngel the night of December 12, 2016 when VidAngel's CEO, Neal

7

Harmon, sent an e-mail message to all VidAngel employees advising them of it.

8

Mr. Harmon scheduled a meeting of VidAngel's executive team (of which I am a

9

member) and its general counsel, David Quinto, for 6:30 a.m. on December 13 to

10

discuss compliance with the injunction.

11

3.

I cannot disclose what we discussed during that very early morning

12

meeting because our communications with our counsel are privileged but

13

immediately after the meeting concluded at 8:00 a.m., I commenced preliminary

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14

compliance planning to remove access to plaintiffs' works focusing on the

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15

technology side of VidAngel's various systems. I then initiated the process of

a::

16

removing certain third-party integrations from our back-end application program

17

interface or "APL" Various integrations had to be removed before we could remove

18

any of plaintiffs' titles from our system without causing the third-party integrations

19

to fail. The same day, our mobile apps lead, acting under my supervision, wrote to

20

our contacts at all the mobile apps stores VidAngel uses-Roku, Apple, Amazon,

21

and Google-to notify them of the entry of the preliminary injunction and of

22

VidAngel's intention to remove both plaintiffs' works and all other works we do not

23

control from our site if we could not obtain a stay of the preliminary injunction.

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4.

On December 14, 2016, I convened a meeting of the Tech Team to

25

begin sketching out all the changes that we would need to make to our core API

26

code, to the Web front end, and to our apps.

27

5.

By December 15, 2016, two other members of the Tech Team and I

28
3

ER072

DECLARATION OF JAROM MCDONALD IN
SUPPORT OF VIDANGEL'S OPPOSITION TO
PLAINTIFFS' EX PARTE APPLICATION

Case 2:16-cv-04109-AB-PLA Document 164-3 Filed 12/23/16 Page 4 of 5 Page ID #:5291

1 were poring through the codebase to annotate places we would have to touch to tum
2

off systems supporting the sale, streaming, and buy-back of plaintiffs' works. I also

3

reached out across the company to ask what features should be implemented to

4

mitigate the devastation to the user experience turning off all movies at once would

5

cause.

6

6.

On December 18, a database engineer acting at my direction began

7
8

rows in the database, meaning that we would have had transactions and lineups

10

linked to things that were no longer immediately visible. If we had not done the

11
V)

shut off access to the movies before doing so, we would have had 10 million stale

9

0

cleaning, vacuuming, and archiving old data from our production database. Had we

cleaning, vacuuming, and archiving work, we would have experienced severe

12

performance problems with our database. Cleaning, vacuuming, and archiving was

13

not an easy or quick task and we did not complete it until December 23, 2016.

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7.

On December 19, 2016, the Tech Team met to gather all the distributed

15

work assignments and create a formal plan enumerating exactly what the

16

consequences to the apps would be if we shut off access to all of plaintiffs' works.

17

As part of that effort, we consulted two outside mobile app developers to ensure that

18

we fully understood the consequences of switching off in-app purchases, including

19

consequences involving our payment processing provider. The same day, I

20

completed work on a "shutdown branch" intended to stop the streaming of filtered

21

movies that VidAngel customers currently own. The computer code for the

22

shutdown branch was then deployed to VidAngel's staging server for testing. Also

23

on December 19, a member of the Tech Team acting under my supervision began

24

writing code to short circuit all requests to purchase plaintiffs' titles while returning

25

an error message. Sending an error message would, of course, result in customer

26

complaints but we could not find a better solution without updating our apps.

27

Unfortunately, we are in the annual holiday "blackout period" during which the app

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28
4

ER073

DECLARATION OF JAROM MCDONALD IN
SUPPORT OF VIDANGEL'S OPPOSITION TO
PLAINTIFFS' EX PARTE APPLICATION

Case 2:16-cv-04109-AB-PLA Document 164-3 Filed 12/23/16 Page 5 of 5 Page ID #:5292

1

stores do not permit us to modify our apps. The code for the short circuit is now

2

being held locally on a VidAngel laptop computer.

3
4

8.

On December 22, 2016, we conducted a test run on our staging server

of our code to disable plaintiffs ' works and tum off their streaming. The results

5 reflected that we have lots of bugs to overcome. The API threw errors and neither
6

the apps nor the Web site responded.

7

9.

We are continuing to work through the holiday season to develop a

8

technological solution that will allow us to disable access to works owned or

9

controlled by plaintiffs or others, such as MGM, who object to allowing their works

10

to be filtered and streamed while preserving access to works whose owners or
distributers will allow their works to be filtered and streamed--all while preventing
our customers from being frustrated by error messages, the inability to sell back
discs they do not want to retain permanently, the inability to watch content they
already own, and other indignities.
I declare under penalty of perjury of the laws of the United States of America

that the foregoing is true and correct.
Executed this 23d day of December, 2016 at Provo,
Utah.

19
20
21
22
23
24
25
26
27

28

5

ER074

DECLARATION OF JAROM MCDONALD IN
SUPPORT OF VIDANGEL'S OPPOSITION TO
PLAINTIFFS ' EX PARTE APPLICATION

Case 2:16-cv-04109-AB-PLA Document 163 Filed 12/15/16 Page 1 of 5 Page ID #:5247

ER075

Case 2:16-cv-04109-AB-PLA Document 163 Filed 12/15/16 Page 2 of 5 Page ID #:5248

ER076

Case 2:16-cv-04109-AB-PLA Document 163 Filed 12/15/16 Page 3 of 5 Page ID #:5249

ER077

Case 2:16-cv-04109-AB-PLA Document 163 Filed 12/15/16 Page 4 of 5 Page ID #:5250

ER078

Case 2:16-cv-04109-AB-PLA Document 163 Filed 12/15/16 Page 5 of 5 Page ID #:5251

ER079

Case 2:16-cv-04109-AB-PLA Document 158 Filed 12/21/16 Page 1 of 8 Page ID #:5208

1 Ryan G. Baker (BarNo. 214036)

[e-mail]
2 Jaime Marquart (Bar No. 200344)
[e-mail]
3 Scott M. Mafzahn (Bar No. 229204)
[e-mail]
4 BrianT. Grace (Bar No. 307826)
[e-mail]
5 BAKER MARQUART LLP
2029 Century Park East, Sixteenth Floor
6 Los Angeles, California 90067
Telephone: [phone]
7 Facsimile: [phone]
8 PeterK. Stris (BarNo. 216226)
peter. stris@strismaher. com
9 Brendan Maher (!3ar No. 217043)
[e-mail]
10 Elizabeth Brannen~ar No. 226234)
elizabeth.brannen strismaher.com
11 Daniel Geys~r
Bar o. 230405)
daniel.ge_y~er strismaher.com
12 STRIS & M
RLLP
725 South Figueroa Street;.. Suite 1830
13 Los Angeles, California 9u0 17
Telephone: [phone]
14 Facsimile: [phone]
David W. Quinto (Bar No. 106232)
dquinto@ VidAngel. com
3007 Frallklin Canyon Drive
Beverly Hillsf California 9021 o
Telephone: [phone]
Facsimile: 732) 377-0388
Attorneys for Defendant and
19 Counterclaimant VidAngel, Inc.
20

UNITED STATES DISTRICT COURT

21

CENTRAL DISTRICT OF CALIFORNIA

22
23
24
25

WESTERN DIVISION
DISNEY ENTERPRISES, INC.;
LUCASFILMLTD. LLC;
TWENTIETH CENTURY FOX FILM
CORPORATION; AND WARNER
BROS. ENTERTAINMENT, INC.,

26
27
28

ER080

Plaintiffs,
vs.

CASE NO. 16-cv-04109-AB (PLAx)
DECLARATION OF NEAL
HARMON IN SUPPORT OF
VIDANGEL, INC.'S EX PARTE
APPLICATION TO STAY
PRELIMINARY INJUNCTION
PENDING APPEAL OR..
ALTERNATIVEL~ PENDING
DECISION BY THE NINTH
DECLARATION OF NEAL HARMON IN
SUPPORT OF EX PARTE APPLICATION TO
STAY

Case 2:16-cv-04109-AB-PLA Document 158 Filed 12/21/16 Page 2 of 8 Page ID #:5209

1

VIDANGEL, INC.,
Defendant.

2
3

CIRCUIT ON STAY PENDING
APPEAL

The Hon. Andre Birotte Jr.
Date Action Filed: June 9, 2016

4
5

VIDANGEL, INC.,

6

Counterclaimant,

7
8

vs.

10

DISNEY ENTERPRISES, INC.;
LUCASFILMLTD. LLC;
TWENTIETH CENTURY FOX FILM
CORPORATION; AND WARNER
BROS. ENTERTAINMENT, INC.,

11

Counterclaim Defendants.

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ER081

DECLARATION OF NEAL HARMON £N
SUP PORT OF EX PARTE APPLICATION TO
TAY

Case 2:16-cv-04109-AB-PLA Document 158 Filed 12/21/16 Page 3 of 8 Page ID #:5210

1

I, Neal Harmon, declare as follows:

2

3

4
5

1.

counterclaimant Vid.Angel, Inc. I have personal knowledge of the facts set forth
herein and if called and sworn as a witness, I could and would testify competently
hereto.

6
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19
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21
22
23
24
25

comply with the injunction without going out of business completely and without
causing unintended problems for our customers. I realized that we faced the
following problems, among others.
3.

First, unlike ClearPlay (which is able to offer its filtering of Google

Play's streaming only to customers who access its eCommerce website online
through a desktop browser), Vid.Angel makes 84.3 percent of its sales through app
stores such as Roku, Apple, Google Play, and Amazon Fire TV. To avoid risking
disruptions to their users' experience during a critical time of the year, the Apple
and Roku stores do not permit modifications to their applications during the holiday
season. These hard deadlines for publishing new apps, out of necessity, create
earlier deadlines for developers to submit builds of app updates for review and
approval by the respective app stores. For example, Roku, which has a thorough debug and user-interface testing process before publishing a company's app, will not
accept any new app updates after November 15. As of December 12, 2016, this
holiday blackout window had already begun for the largest platform through which
VidAngel sells content (Roku - over a third of our purchases). Because of its twoday review period, we are now in that holiday window for Apple too, meaning that
VidAngel cannot modify its most popular apps until early January.

26
27

When I learned of the issuance ofthe preliminary injunction the night

of December 12, 2016, I immediately began to investigate how VidAngel could

11
0::

I am a founder and the Chief Executive Officer of defendant and

4.

IfVidAngel were to remove existing titles from its library during the

black-out period for modifying apps, the system could not be modified to recognize

28
1

ER082

DECLARATION OF NEAL HARMON IN
SUPPORT OF EX PARTE APPLICATION TO
STAY

Case 2:16-cv-04109-AB-PLA Document 158 Filed 12/21/16 Page 4 of 8 Page ID #:5211

1 titles that were no longer available for sale. Those titles would still appear to be
2

available even though VidAngel had removed them. The only alternative would be

3

for VidAngel to completely turn off in-app purchasing across the board-which

4

would prevent VidAngel from offering content that it is directly licensed to filter

5

and stream or as to which the rights holders have no objection to VidAngel ' s

6

service. As a result, during the app black-out period, we are unable to modify our

7

system to block access to just the plaintiffs' titles without causing major customer

8

confusion about which titles are and are not available for purchase. To immediately

9

shutdown, we would have to block access to all titles.

10

5.

VidAngel has entered into licenses to filter and stream certain works

11
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0

12

0

released by entities that are not party to the Directors Guild of America' s collective
bargaining agreement. For example, on September 12, 20 16, we signed an

13

exclusive licensing contract with Excel Entertainment to filter and stream The Last

14

Descent commencing December 15, 2016. If we were required to shut down our

15

entire system immediately or disable in-app purchasing across the board because we

16

are currently unable to modify our apps to remove selected titles, we would

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necessarily have to block access to any works we are licensed to filter and stream
(because the works catalog and purchasing system are coupled together).

19

6.

The rights for our content are controlled by over 125 studios or

20

distributors, the vast majority of whom have neither joined in the litigation nor

21

expressed any complaint to VidAngel. Since the injunction issued, we have been

22

contacting them to let them know that ifVidAngel is unsuccessful in obtaining a

23

stay of the preliminary injunction, it will cease filtering and streaming them and will

24

also cease buying new DVD and Blu-ray discs of their movies unless they are

25

willing to enter into a covenant not to sue without waiver of any legal position or

26

argument for the duration of the appeal. To date, one such company-MGM-has

27

rejected our request for a covenant not to sue and we have yet to hear from many

28
2

ER083

DECLARATION OF NEAL HARMON IN
SUPPORT OF EX PARTE APPLICATION TO
STAY

Case 2:16-cv-04109-AB-PLA Document 158 Filed 12/21/16 Page 5 of 8 Page ID #:5212

1

others.

2

7.

Even ifVidAngel were able to update its apps despite the blackout

3
4

nothing option. As a technical matter, VidAngel has the ability completely to

7

disable in-app purchasing for all titles, but it cannot use the existing in-app

8

purchasing functionality to restrict certain titles that have previously been made

9

available for purchase. On the other hand, we cannot tum off in-app purchases

10

altogether because doing so would prevent us from selling and/or renting other

11

content.

12

0

the respective platform providers make in-app purchasing available as an ali-or-

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made available for purchase, rolling it back is not an easy process. This is because

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period, it is not an easy process to modify in-app purchasing. Once a title has been

8.

In addition, until VidAngel can update its apps after the blackout

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period, removing titles would also prevent customers from being able to use the app

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functionality that currently enables them to sell back and receive monetary credit for

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titles that they previously purchased. This would create confusion and a massive

16

customer support issue.

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9.

Similarly, more than 20,000 discs in our vault are permanently owned

:::!:,

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by VidAngel's customers. Because 56 percent of the discs we sell have content

19

owned or licensed by the plaintiffs, a similar percentage likely applies to the

20

permanently owned discs. To immediately block access to all (or all of plaintiffs')

21

existing titles, would cause a customer-relations nightmare to address the problem of

22

customers who permanently owned discs that they now could not watch, with no

23

explanation. VidAngel will need to communicate options to these customers, such

24

as receiving the physical DVD that they own.
10.

25

The app blackout period exacerbates these customer relations and

26

support issues. That is because until the apps can be updated (including to reflect

27

direct messaging to customers), there is no practical way to notify our customers of

28

3

ER084

DECLARATION OF NEAL HARMON IN
SUPPORT OF EX PARTE APPLICATION TO
STAY

Case 2:16-cv-04109-AB-PLA Document 158 Filed 12/21/16 Page 6 of 8 Page ID #:5213

1

what we are doing or to let them know that VidAngel will give them credit for

2

selling their discs back to VidAngel. Although we have our customer's e-mail

3

addresses, e-mail messages we send to our customers are typically opened only

4

about 20 percent of the time. As a consequence, many of our apps customers would

5

likely not understand why our system would neither permit them to sell their discs

6

back nor give them credit for doing so, or to stream content they previously

7

purchased and permanently own. We are trying to ensure that customers know

8

which movies they have purchased, even if they cannot watch them, and that they

9

have the opportunity to sell those movies back. To avoid creating enormous

10
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without having movies simply disappear from the apps without notice.

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consumer ill will, we need time to make our apps ready to explain what is happening

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requests if it is not afforded that opportunity. In the wake of the preliminary

14

injunction ruling alone, VidAngel's support tickets doubled from approximately

15

3,500 to 7000 per week. IfVidAngel were forced to shut down without messaging

16

within the apps to directly explain the situation for its approximately 200,000

17

customers, its team of 14 people would be unable to address the influx even if they

18

devoted their holidays entirely to damage control.

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19

Regardless of the app blackout period, it will take time for VidAngel to

20

develop updated apps to address the issues that result from the preliminary

21

injunction order. Because each of the apps is developed to use the interfaces native

22

to a given platform, there are some functions that must be hard-coded in, such as

23

how to handle errors, and how to disseminate app notifications. To appropriately

24

implement drastic changes of the kind necessitated by the preliminary injunction,

25

such as removing all or a significant number of titles from the site, or removing the

26

ability to purchase a significant number of movies, work of this nature will be

27

required. All changes have to be thoroughly vetted and tested before VidAngel can

28
4

ER085

DECLARATION OF NEAL HARMON IN
SUPPORT OF EX PARTE APPLICATION TO
STAY

Case 2:16-cv-04109-AB-PLA Document 158 Filed 12/21/16 Page 7 of 8 Page ID #:5214

1

submit them to the app stores; otherwise, the app review process will reject them

2

and/or we run the risk of publishing bugs. In addition, VidAngel has to ensure that

3

any changes do not break older versions of the apps, which customers may continue

4

to run.
13.

5

To avoid the foregoing problems, we estimate that we will require until

6

January 5, 2017, to modify our Apple app based on our previous experience with its

7

app store and its resumption date for modifying apps, and until January 25,2017, for

8

the Roku apps because it does not permit modifications to be submitted until

9

January and then requires two weeks for expedited review. Allowing VidAngel that

10
11
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preliminary injunction order is granted in the interim.

12

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VidAngel today learned that its payment processing company has

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time would allow at least some of these issues to be mitigated if no stay of the

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indicated that, absent a stay, it might sever relations with VidAngel as early as next

14

week.

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15.

On December 20,2016, plaintiffs complained (through the

Supplemental Declaration of Kelly Klaus) that VidAngel had just added two new

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titles they own. This was not intended to be disrespectful or a flout of anything, and

18

VidAngel has asked for a stay. Nevertheless, to address the concern identified in the
supplemental declaration, VidAngel will not add any other titles owned or licensed

20

~

17

19

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by plaintiffs unless and until it obtains a stay of the preliminary injunction.
16.

21

In conclusion, I would like to emphasize that VidAngel wishes to

22

operate in a fully lawful manner and fully respects the authority of this Court. It is,

23

and always has been, VidAngel 's intent to comply fully and in all respects with all

24

orders the Court has issued or may issue. But in view of the facts that VidAngel has

25

now offered its service for just under two years; the plaintiffs waited 11 months after

26

receiving written notice explaining VidAngel's service simply to file their complaint

27

(and never sent any preliminary cease-and-desist letters); the plaintiffs never sought

28
5

ER086

DECLARATION OF NEAL HARMON IN
SUPPORT OF EX PARTE APPLICATION TO
STAY

Case 2:16-cv-04109-AB-PLA Document 158 Filed 12/21/16 Page 8 of 8 Page ID #:5215

mrrtewttertr::rmrn nwr r ;;wv·"' 'WfrY

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WTr"netrr 't

a temporary restraining order but took another four months after filing suit to
2

conduct discovery and have their motion heard; and the Court understandably took

3

several weeks to consider the parties' various arguments and issue its ruling,

4

VidAngel requests that it be allowed a reasonable time to comply fully with the

5

terms ofthe preliminary injunction if no stay is granted in the interim.

6
7
8

I declare under penalty of perjury of the laws of the United States of
America that the foregoing is true and correct.
Executed on 21 51 day of Decem

Provo, Utah.

9
10
11
a:

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Q....

Neal Harmon

12

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19
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21

22

23

24

25
26

27

281r---------------------------------------------------_,
6

ER087

DECLARATION OF NEAL HARMON IN
SUPPORT OF EX PARTE APPLICATION TO
STAY

Case 2:16-cv-04109-AB-PLA Document 149 Filed 12/14/16 Page 1 of 6 Page ID #:5098

1 Ryan G. Baker (Bar No. 214036)
[e-mail]
2 Jaime Marquart (Bar No. 200344)
[e-mail]
3 Scott M. Malzahn (Bar No. 229204)
[e-mail]
4 Brian T. Grace (Bar No. 307826)
[e-mail]
5 BAKER MARQUART LLP
2029 Century Park East, Sixteenth Floor
6 Los Angeles, California 90067
Telephone: [phone]
7 Facsimile: [phone]
8 Peter K. Stris (Bar No. 216226)
[e-mail]
9 Brendan Maher (Bar No. 217043)
[e-mail]
10 Elizabeth Brannen (Bar No. 226234)
[e-mail]
11 Daniel Geyser (Bar No. 230405)
[e-mail]
12 STRIS & MAHER LLP
725 South Figueroa Street, Suite 1830
13 Los Angeles, California 90017
Telephone: [phone]
14 Facsimile: [phone]
15 David W. Quinto (Bar No. 106232)
[e-mail]
16 3007 Franklin Canyon Drive
Beverly Hills, California 90210
17 Telephone: [phone]
Facsimile: [phone]
18
19 Attorneys for Defendant and
Counterclaimant VidAngel, Inc.
20
UNITED STATES DISTRICT COURT
21
CENTRAL DISTRICT OF CALIFORNIA
22
WESTERN DIVISION
23
DISNEY ENTERPRISES, INC.;
CASE NO. CV16-04109-AB (PLAx)
24 LUCASFILM LTD. LLC;
TWENTIETH CENTURY FOX FILM
VIDANGEL, INC.’S NOTICE OF
APPEAL FROM ORDER
25 CORPORATION; AND WARNER
BROS. ENTERTAINMENT, INC.,
GRANTING MOTION FOR
PRELIMINARY INJUNCTION;
26
Plaintiffs,
REPRESENTATION STATEMENT
27
vs.
PRELIMINARY INJUNCTION
APPEAL
28

ER088

NOTICE OF APPEAL AND REPRESENTATION STATEMENT

Case 2:16-cv-04109-AB-PLA Document 149 Filed 12/14/16 Page 2 of 6 Page ID #:5099

1

VIDANGEL, INC.,
Defendant.

2

3 VIDANGEL, INC.,
4
Counterclaimant,

5
6

vs.

DISNEY ENTERPRISES, INC.;
7 LUCASFILM LTD. LLC;
TWENTIETH CENTURY FOX FILM
8 CORPORATION; AND WARNER
BROS. ENTERTAINMENT, INC.,
9
10

Counterclaim Defendants.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ER089

1
NOTICE OF APPEAL AND REPRESENTATION STATEMENT

Case 2:16-cv-04109-AB-PLA Document 149 Filed 12/14/16 Page 3 of 6 Page ID #:5100

1

Notice of Appeal

2
3
4
5
6
7

Notice is hereby given that VidAngel, Inc. (“VidAngel”), defendant and
counter-claimant in the above-captioned action, hereby appeals to the United States
Court of Appeals for the Ninth Circuit from the Court’s Order Granting Plaintiff’s
Motion for Preliminary Injunction entered in this action on December 12, 2016 (Dkt.
No. 144). A copy of that order from which VidAngel takes its appeal is attached as
Exhibit A.

8
9 DATED: December 14, 2016

Respectfully submitted,

10
11

BAKER MARQUART LLP

2029 CENTURY PARK EAST, 16TH FLOOR
LOS ANGELES, CA 90067
Tel: [phone] ● Fax: [phone]

12
13
14
15
16

By: /s/ Jaime W. Marquart
Jaime W. Marquart
BAKER MARQUART LLP
2029 Century Park East, Sixteenth Floor
Los Angeles, California 90067
[phone]
[phone] (facsimile)
Attorneys for Defendant/CounterclaimantAppellant VidAngel, Inc.

17
18
19
20
21
22
23
24
25
26
27
28

ER090

1
NOTICE OF APPEAL AND REPRESENTATION STATEMENT

Case 2:16-cv-04109-AB-PLA Document 149 Filed 12/14/16 Page 4 of 6 Page ID #:5101

1

Representation Statement

2

Pursuant to Circuit Rule 3-2(b) and Federal Rule of Appellate Procedure 12(b),

3

the names, addresses and telephone numbers of the parties and their respective counsel

4

are as follows:

5
6
7
8
9
10
11

BAKER MARQUART LLP

2029 CENTURY PARK EAST, 16TH FLOOR
LOS ANGELES, CA 90067
Tel: [phone] ● Fax: [phone]

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

1.

Defendant/Counterclaimant-Appellant VidAngel, Inc.
Ryan G. Baker (Bar No. 214036)
[e-mail]
Jaime Marquart (Bar No. 200344)
[e-mail]
Scott M. Malzahn (Bar No. 229204)
[e-mail]
Brian T. Grace (Bar No. 307826)
[e-mail]
BAKER MARQUART LLP
2029 Century Park East, Sixteenth Floor
Los Angeles, California 90067
Telephone: [phone]
Facsimile: [phone]
Maxwell M. Blecher (Bar No. 26202)
[e-mail]
Donald R. Pepperman (Bar No. 109809)
[e-mail]
Taylor C. Wagniere (Bar No. 293379)
[e-mail]
BLECHER COLLINS & PEPPERMAN, P.C.
515 S. Figueroa St., Suite 1750
Los Angeles, California 90071
Telephone: [phone]
Facsimile: [phone]
Peter K. Stris (Bar No. 216226)
[e-mail]
Brendan Maher (Bar No. 217043)
[e-mail]
Elizabeth Brannen (Bar No. 226234)
[e-mail]
Daniel Geyser (Bar No. 230405)
[e-mail]
STRIS & MAHER LLP
725 South Figueroa Street, Suite 1830
Los Angeles, California 90017
Telephone: [phone]
Facsimile: [phone]

27
28

ER091

2
NOTICE OF APPEAL AND REPRESENTATION STATEMENT

Case 2:16-cv-04109-AB-PLA Document 149 Filed 12/14/16 Page 5 of 6 Page ID #:5102

1

David W. Quinto (Bar No. 106232)
[e-mail]
VIDANGEL, INC.
3007 Franklin Canyon Drive
Beverly Hills, California 90210
Telephone: [phone]
Facsimile: [phone]

2
3
4
5

2.

6
7

Glenn D. Pomerantz (Bar No. 112503)
[e-mail]
Kelly M. Klaus (Bar No. 161091)
[e-mail]
Rose Leda Ehler (Bar No. 296523)
[e-mail]
Allyson R. Bennett (Bar No. 302090)
[e-mail]
MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue, Thirty-Fifth Floor
Los Angeles, California 90071-1560
Telephone: [phone]
Facsimile: [phone]

8
9
10
11

BAKER MARQUART LLP

12
2029 CENTURY PARK EAST, 16TH FLOOR
LOS ANGELES, CA 90067
Tel: [phone] ● Fax: [phone]

Plaintiffs/Counterdefendants-Appellees Disney Enterprises, Inc.,
LucasFilm Ltd., LLC, Twentieth Century Fox Film Corporation and
Warner Bros. Entertainment, Inc.

13
14
15

DATED: December 14, 2016

Respectfully submitted,

16
17
18
19
20
21
22

By: /s/ Jaime W. Marquart
Jaime W. Marquart
BAKER MARQUART LLP
2029 Century Park East, Sixteenth Floor
Los Angeles, California 90067
[phone]
[phone] (facsimile)
Attorneys for Defendant/CounterclaimantAppellant VidAngel, Inc.

23
24
25
26
27
28

ER092

3
NOTICE OF APPEAL AND REPRESENTATION STATEMENT

Case 2:16-cv-04109-AB-PLA Document 149 Filed 12/14/16 Page 6 of 6 Page ID #:5103

1

CERTIFICATE OF SERVICE

2

The undersigned hereby certifies that counsel of record who are deemed to have

3

consented to electronic service are being served with a copy of this document via the

4

Court’s CM/ECF system per Local Rule 5-4.7.2 on December 14, 2016.

5
6
7

/s/ Jaime W. Marquart
Jaime W. Marquart

8
9
10
11

BAKER MARQUART LLP

2029 CENTURY PARK EAST, 16TH FLOOR
LOS ANGELES, CA 90067
Tel: [phone] ● Fax: [phone]

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
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ER093

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NOTICE OF APPEAL AND REPRESENTATION STATEMENT

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION

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HONORABLE ANDRÉ BIROTTE JR., U.S. DISTRICT JUDGE

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DISNEY ENTERPRISES, INC.;
LUCASFILM LTD.LLC; TWENTIETH
CENTURY FOX FILM CORPORATION
AND WARNER BROS. ENTERTAINMENT
INC.,

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PLAINTIFFS AND
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COUNTERCLAIM DEFENDANTS,
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vs.
) No. CV 16-04109-AB
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VIDANGEL, INC.,
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DEFENDANT AND
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COUNTERCLAIMANT.
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________________________________)

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REPORTER'S TRANSCRIPT OF PROCEEDINGS

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MONDAY, NOVEMBER 14, 2016

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10:35 A.M.

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LOS ANGELES, CALIFORNIA

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____________________________________________________________

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CHIA MEI JUI, CSR 3287, CCRR, FCRR
FEDERAL OFFICIAL COURT REPORTER
255 EAST TEMPLE STREET, ROOM 181-C
LOS ANGELES, CALIFORNIA 90012
[e-mail]

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CHIA MEI JUI, CSR 3287, CCRR, FCRR
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

ER094

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APPEARANCES OF COUNSEL:

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FOR THE PLAINTIFFS AND COUNTERCLAIM DEFENDANTS:
MUNGER, TOLLES & OLSON LLP
BY: GLENN D. POMERANTZ, ATTORNEY AT LAW
BY: ALLYSON R. BENNETT, ATTORNEY AT LAW
355 SOUTH GRAND AVENUE
35TH FLOOR
LOS ANGELES, CALIFORNIA 90071
[phone]
- AND MUNGER, TOLLES & OLSON LLP
BY: KELLY M. KLAUS, ATTORNEY AT LAW
BY: ROSA LEDA EHLER, ATTORNEY AT LAW
560 MISSION STREET
27TH FLOOR
SAN FRANCISCO, 94105
[phone]

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FOR THE DEFENDANT AND COUNTERCLAIMANT:
DAVID QUINTO, ATTORNEY AT LAW
3007 FRANKLIN CANYON DRIVE
BEVERLY HILLS, CALIFORNIA 90210-1633
[phone]
- AND BAKER MARQUART LLP
BY: RYAN G. BAKER, ATTORNEY AT LAW
BY: JAIME MARQUART, ATTORNEY AT LAW
BY: BRIAN T. GRACE, ATTORNEY AT LAW
2029 CENTURY PARK EAST
16TH FLOOR
LOS ANGELES, CALIFORNIA 90067
[phone]

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CHIA MEI JUI, CSR 3287, CCRR, FCRR
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

ER095

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LOS ANGELES, CALIFORNIA; MONDAY, NOVEMBER 14, 2016

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10:35 A.M.

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- - THE CLERK:

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Disney Enterprises, Inc., et al., versus VidAngel, Inc.
Counsel, please step forward and state your

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appearances for the record.
MR. KLAUS:

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Calling Item No. 2, CV 16-4109-AB,

Good morning, Your Honor.

Klaus from Munger, Tolles & Olson.

I'm Kelly

I am joined by my

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colleagues, Rose Ehler, Allyson Bennett, and Glenn

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Pomerantz, at counsel table for the plaintiffs.
MR. QUINTO:

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Good morning, Your Honor.

David

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Quinto, general counsel of VidAngel, Inc.

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Marquart and Brian Grace of the Baker Marquart firm.

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also have a video operator who will also show slides.
THE COURT:

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MR. QUINTO:

Are we going to play the "Star Wars

The filtered version, Your Honor, a

lot shorter.
THE COURT:

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We

Rogue One" movie?

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With me are Jaime

No opening credits?

Just kidding.

All right.
Good morning to you all.

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about today.

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a chance to review the papers.

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questions.

We have a lot to talk

The motion for preliminary injunction -- I had
I have a number of

I guess I will just start off -- I don't know if

CHIA MEI JUI, CSR 3287, CCRR, FCRR
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

ER096

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it's Mr. Quinto.

I want to make sure I understand the

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business model, and I will ask some questions to help walk

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me through it.

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So customer says, "I want to watch 'Star Wars,'"

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they purchase the DVD legally through VidAngel for $20.00,

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let's just -- is that correct?

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MR. QUINTO:

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THE COURT:

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Yes, Your Honor.
So then VidAngel decrypts the video in

order to make a version that can be streamed back to the
customer.

Is that correct?

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MR. QUINTO:

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streamed without the decryption.

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filtered without the decryption.
THE COURT:

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It could not be

It also could not be

It's decrypted for both filtering and

streaming purposes.
MR. QUINTO:

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Sort of, yes.

Yes.

That is a technological

necessity today, and it was in 2005.
THE COURT:

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So then the DVD is sold to the

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customer, and then the DVD is then placed in a vault.

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that correct?
MR. QUINTO:

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Yes, Your Honor.

Is

Each DVD is

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individually barcoded.

When a DVD is sold to a customer,

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the customer owns a specific DVD that is identifiable by its

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barcode.

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firm go through and audit the vault to make sure that all

VidAngel has had an outside independent accounting

CHIA MEI JUI, CSR 3287, CCRR, FCRR
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

ER097

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the DVDs that are supposed to be there are there and to

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confirm that no DVD has ever been sold to two customers

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simultaneously, that there is a one-to-one correspondence

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between the person who gets to use the DVD and the person

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who owns the DVD.

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THE COURT:

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MR. QUINTO:

Okay.
And VidAngel even makes sure that the

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customer cannot -- that the same customer cannot watch the

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DVD on two devices simultaneously.

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watch it only on one device.

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So you are allowed to

upfront.
THE COURT:

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Right.

The entire $20.00 is paid

Let me go through this just so

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I understand.

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streams the movie.

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purchase the movie back for $19.00.

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customer says yes or no.

The customer

VidAngel makes a request or offer to
Is that -- and then the

If the customer says yes, then you give them back

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The $20.00 gets paid upfront.

$19.00.

What happens to that DVD?
MR. QUINTO:

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Well, let me first note that

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Your Honor's description is almost correct but not quite.

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So the repurchase price for a DVD declines a dollar a day.

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The repurchase price for a Blu-ray disk declines $2.00 a

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day.

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the DVD, the customer would get $19.00 in store credit.

So if a customer chooses to sell back within 24 hours,

If the customer waits two days --

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CHIA MEI JUI, CSR 3287, CCRR, FCRR
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

ER098

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THE COURT:

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He will get $18.00.

Let's assume they

do it in that same day.
MR. QUINTO:

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I want to note that, at this point,

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there are over 20,000 DVDs that have -- that have been held

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by the customer so long that there is no sell-back value.

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So they're being stored for the customers in perpetuity.
THE COURT:

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I understand that, but just work with

me here.

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MR. QUINTO:

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THE COURT:

Yes, Your Honor.
Let's say the customer on that day,

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they watch the movie, and they say, "Okay.

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it back."

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Okay?

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vault in perpetuity?

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customer now that they've bought it back?

Then VidAngel gives them a $19.00 store credit.

Then what happens to that DVD?

MR. QUINTO:

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I want to sell

Does it remain in the

Or is it sold again to another

Yes, it can be sold to another

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customer.

The analogy -- probably all of us, at least

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members of the Bar are familiar with, would be the college

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bookstore.

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looked at the prices of the books, and we had heart

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palpitations, and the people at the bookstore said, "But

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take good care of the book.

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book again next term, we will buy it back from you at the

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end of the semester."

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early hoping to find used and less expensive copies of the

We went there at the start of every term, and we

If the professor is using the

And we always went to the bookstore

CHIA MEI JUI, CSR 3287, CCRR, FCRR
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

ER099

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books.

It's the same thing.
THE COURT:

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I understand.

So what happens, then,

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the next day when someone wants to watch that same movie?

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Are they sold a used copy of the video?

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what's the price point on that, assuming my scenario, the

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next day someone wants to watch that same movie?
MR. QUINTO:

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Right.

Or are they sold --

The next customer would pay

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$20.00 and would own that DVD for as long as he or she

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wanted.
THE COURT:

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And then, when they sell it back, then

VidAngel owns it to be able to resell to the next person.
MR. QUINTO:

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That's correct.

And one of the

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problems with this model is that, if VidAngel estimates that

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2,500 people might want to own a DVD of a particular movie

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simultaneously and VidAngel, therefore, buys 2,500 DVDs to

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sell to its customers, if it guesses wrong and no more than

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2,000 watch it at a time, VidAngel has purchased 2,000 --

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has purchased 500 DVDs that will never be used.
On the other hand, if 3,000 people want to watch,

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VidAngel has to send out of stock notices to 500 customers

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saying, "Sorry.

We don't have it."

THE COURT:

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That's the part I'm not sure I follow

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then.

Because, if you buy 2,000 copies and on Day 1, 2,000

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people buy it and sell it back; on Day 2, another 2,000

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people want it.

Then it's available for sale; correct?

CHIA MEI JUI, CSR 3287, CCRR, FCRR
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

ER100

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MR. QUINTO:

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VidAngel.

Yes, Your Honor.
THE COURT:

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That would be the ideal situation for

And I am just trying to make sure I

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understand.

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reselling those DVDs; correct?

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MR. QUINTO:

Yes.

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THE COURT:

Right.

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MR. QUINTO:

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That's how VidAngel makes its money, by

That's where it derives its

revenue.

But it's not in the -- it doesn't

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view itself as in the DVD sale and resale business.

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value it adds is the filtering.

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movies rented from VidAngel -- rented, used, sold -- sorry.

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96 percent of the DVDs sold and watched are watched by

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consumers who choose two or more filters.
THE COURT:

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filters?

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moment.

The

And 96 percent of all

What are generally those two or more

Because I was going to talk about that in a
There is some back-and-forth.
Are they really filtering for violence, profanity,

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what have you?

Or are they just filtering out either the

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opening or closing credits, if you know?
MR. QUINTO:

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It's not just the credits.

And I

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want to say something about the credits, Your Honor, because

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that's, I think, a real canard.
The credit filter didn't exist so that people

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could game the system.

It wasn't installed so that people

CHIA MEI JUI, CSR 3287, CCRR, FCRR
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

ER101

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could choose to filter something they didn't want to see

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anyway and thereby watch a filtered movie -- thereby watch a

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streamed movie for a lower price.

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many movies contain outtakes in the credits.

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most outrageous parts of the movie, some of the largest acts

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of violence or the bloodiest scenes or the worst language

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appear in those outtakes in the credits.

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VidAngel customers insisted on having a closing credits.

Rather, Your Honor, today

That's why

But the system has been modified.

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And often the

VidAngel

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represented to the studios in July 2005 that, if they wanted

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some modification to the system to the technology, VidAngel

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would be happy to try to accommodate.
Now that Disney has raised that as an issue,

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VidAngel requires that, to watch a movie, if you choose to

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filter credits, you must also choose to filter something

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else.

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THE COURT:

What's that something else?

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MR. QUINTO:

Well, Your Honor, if I may, I would

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ask the Court's indulgence to watch a video that's about

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2 1/2 minutes long.

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it shows a -- it shows exactly what the consumer would see

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if the consumer went to the VidAngel Web site.

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somebody walking through the Web site, choosing the filters.

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The Court can see what sorts of filters are available and

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how that system works.

What it -- I will tell you.

It is --

And it shows

CHIA MEI JUI, CSR 3287, CCRR, FCRR
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

ER102

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THE COURT:

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Mr. Klaus, I assume you are not

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standing up just for exercise, and I assume you have some

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issue with the Court watching the video.

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be heard.

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MR. KLAUS:

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Two points.

So I will let you

Thank you, Your Honor.
One is that we do object to the

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showing of the video that Mr. Quinto just described.

It was

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provided to us on Saturday evening.

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narration by someone -- we assume it's VidAngel's chief

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operating officer -- but it contains narration that has

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commentary on why she happens to be selecting particular

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filters.

The video contains

The part that is very objectionable is that, at

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the end of the video, there is a comment during the

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sell-back process where the narrator says there is a certain

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percentage of DVDs that are permanently owned.
Mr. Quinto, during his remarks just now, made a

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reference to there being 20,000 DVDs that have been checked

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out for so long that they are permanently owned.

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in the record.

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object to Mr. Quinto's attempt to bring that in in his

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argument and also to bring it in through the video.

That's not

There is zero evidence of that, and so we

The other thing I would say, Your Honor, is I do

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believe there were some points in the question and answering

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where Mr. Quinto was describing the system that I would like

CHIA MEI JUI, CSR 3287, CCRR, FCRR
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

ER103

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the opportunity to be heard on.

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flow of his question.
THE COURT:

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I don't want to break the

I can assure you you will have an

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opportunity to be heard.

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I just was more focused on the

video.
Why don't we do this, Mr. Quinto.

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through my questions.

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Let me get

Let's hear the arguments, and then I

will decide if I need to see the video.
Mr. Klaus, I understand you are representing your

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client.

It's not in front of a jury.

I would like to

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think -- some might disagree that I have a modicum of

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intelligence to filter out that which is relevant to these

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proceedings and that which is not.

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noted.

But your objection is

Let me kind of go through this, if I could.
Mr. Quinto, I thought you said 96 percent of the

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people filter -- do some form of filtering in the -- when

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they engage?
MR. QUINTO:

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Choose more -- choose at least two

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filters and frequently many more than two filters when they

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watch the movie.
THE COURT:

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Do you know specifically what those

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filters are that they're choosing?

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Is it closing credits?
MR. QUINTO:

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Your Honor.

Is it opening credits?

Is it violence?

Is it profanity?

It's all matter of things,

I don't know the breakdown among the various

CHIA MEI JUI, CSR 3287, CCRR, FCRR
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

ER104

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categories.

VidAngel has 82 general categories of content

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that can be filtered, including smoking, drinking, violence,

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blood, guts, gore, sex.
THE COURT:

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You don't keep statistics on what

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things get filtered out -- or at least you don't have that

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information today?
MR. QUINTO:

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I don't have that information,

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Your Honor, but the average number of filters selected is

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far greater than two.

I do know that.

And although there are 82 general categories, if

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one includes the subcategories, there are hundreds of

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possible filters.

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And when a consumer goes to the VidAngel site, the

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consumer can go through the general categories and open them

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up and look at all the subcategories and decide which

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specific subcategories to include or can take out an entire

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category.
And as this process goes on, the site will in real

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time show where in the movie, if it's language, the movie

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will be muted.

And when I say "muted" I mean only the voice

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track is muted.

You still hear the background noises, the

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music --

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THE COURT:

I'm not challenging the filtering.

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MR. QUINTO:

And if you choose to have scenes

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deleted, it will show you where.

It will show you how much

CHIA MEI JUI, CSR 3287, CCRR, FCRR
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

ER105

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of the movie is being shorted.

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THE COURT:

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Let me go through some of the other questions that

Okay.

Fair enough.

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I have for you.

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this.

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disputing -- that there is no fair use defense to the

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Digital Millennium Copyright Act violation; is that correct?

Disney contends -- and I don't think you are

MR. QUINTO:

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So I just want to make sure we're clear on

I'm sorry.

That there is no fair use

defense?

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THE COURT:

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MR. QUINTO:

Yes.
Yes, there is.

And if I may ask the

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Court to give me a couple of minutes, I would walk the Court

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through the DMCA argument because it is stuff and nonsense

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for several reasons as I can demonstrate.
THE COURT:

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I will give you an opportunity.

I

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just want to make sure I understand these are the issues

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that I had in going through the papers.
If I understand your papers correctly, you argue

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that your business model doesn't violate the DMCA because

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you buy these authorized copies of these DVDs and then sell

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them to the customers and then the customers are then able

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to watch the streamed content that they own without

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violating the DMCA.

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Is that a fair statement of your argument?

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MR. QUINTO:

Not quite, Your Honor.

CHIA MEI JUI, CSR 3287, CCRR, FCRR
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

ER106

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THE COURT:

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MR. QUINTO:

Okay.
Sure.

Tell me what I am missing.
The first sentence of the DMCA

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at Section 1201(a)(1)(A) which is the section that VidAngel

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is relying on and which, by the way, is the subject of a

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pending action in the district court for the District of

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Columbia, seeking to have that precise provision declared

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unconstitutional.

The first sentence says:

(Reading:)

No persons shall -- no person shall

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circumvent a technological measure that

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effectively controls access to a work

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protected under this title.

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So there are two requirements for that to apply.

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THE COURT:

I just want to make sure -- I am

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seeing this stuff on the screen.

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opposing counsel?
MR. QUINTO:

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Has this been shared with

No, but this is just part of the

statute -THE COURT:

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I understand but, Mr. Quinto.

You are

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coming here, putting up these video screens.

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going to have Disney jumping up in arms saying, "I haven't

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seen this."

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this whole PowerPoint, you should share it with opposing

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counsel.

It seems to me, if you are going to go through

Mr. Klaus, I am sure you will object at the

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Then I am

appropriate time.

CHIA MEI JUI, CSR 3287, CCRR, FCRR
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

ER107

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MR. KLAUS:

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I will, Your Honor.

I have a complete

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version of the statute that I am happy to hand up to

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Your Honor, but I don't mind, for purposes of this

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discussion right now, if Mr. Quinto goes through this

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sentence.

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THE COURT:

All right.

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Go ahead, Mr. Quinto.

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MR. QUINTO:

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So I have bolded the two critical elements there.

Thank you.

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First, there must be effective control; and, secondly, it

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must be of a work protected under Title 17, which is the

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Copyright Act.
We have submitted a declaration from our expert

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which explains in some detail that the control is quite

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ineffective.

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there is not an effective control.

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Mr. Klaus, refer to 17 USC 1201(b)(2)(B).

And if I may now,

This section defines what it means to have

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But putting that aside, as a matter of law,

effective protection.

It says (reading:)

A technological measure effectively

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protects a right of a copyright owner under

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this title if the measure prevents, restricts,

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or otherwise limits the exercise of a right of

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a copyright owner under this title.

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So the first requirement here is that there be a

CHIA MEI JUI, CSR 3287, CCRR, FCRR
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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right of a copyright owner.
THE COURT:

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Okay.

Let me stop you there because

Mr. Klaus is standing up.

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So what is the issue, Mr. Klaus?

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MR. KLAUS:

He is reading from the definition of

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effective protection and Section 1201(b)(2)(B), whereas the

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actual definition of what it means to effectively protect a

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work for purposes of Section 1201(a)(1) is in a different

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section.

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It's in Section 1201(a)(3)(B).

And what that

section -- that's the one that's at issue here.

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THE COURT:

Let me stop you there.

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We're going to be here all day if we go through

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this.

So just note where you have issue.

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Then I will give

you a chance to respond.

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Mr. Quinto, continue.

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MR. QUINTO:

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the right of a copyright owner.

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involved.

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that a service that meets the requirements of a Family Movie

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Act is exempt from all the exclusive rights of copyright

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under that statute, there is no right of a copyright owner

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here to be protected because the studios don't have any of

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the -- don't enjoy any of the exclusive rights of copyright

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vis-à-vis a service operating as required by the Family

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Movie Act.

So first it must effectively protect
So there must be a right

But under the Family Movie Act which provides

CHIA MEI JUI, CSR 3287, CCRR, FCRR
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

ER109

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THE COURT:

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You are saying that this is exempt

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under the Family Movie Act?

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Family Movie Act?

Is that your contention?

MR. QUINTO:

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That it's exempt under the

The Family Movie Act says that any

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service operating in accordance with its terms -- that is,

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17 USC Section 110, Subsection 11, that any service that

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meets those requirements is -- does not violate any of the

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exclusive rights of copyright, does not violate Section 106

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which lists -- which sets forth all the exclusive rights

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that copyright owners enjoy.
THE COURT:

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So, Mr. Quinto, what's your response?

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The plaintiff touched upon this -- Disney touched upon the

13

legislative history that suggests that the FMA was not

14

intended to be a defense to a DMCA violation.
I think there is some verbiage from Senator Hatch

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specifically where he states it would not be a defense to

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claim a violation of Section 1201, that the circumvention is

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for the purpose of engaging in the conduct covered by this

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new exemption in Section 110(11), which is FMA.
And then he further states that the FMA does not

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provide any exemption from the anti-circumvention provisions

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of Section 1201 of Title 17.

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What's your response to that?

24

MR. QUINTO:

25

Well, several, Your Honor.

First,

the -- Senator Hatch's statement has to be read in

CHIA MEI JUI, CSR 3287, CCRR, FCRR
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

ER110

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conjunction with all the statements, all the numerous

2

statements in the legislative history, including statements

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made by Disney's allies that the FMA, if it became law,

4

would provide a blanket immunity, would provide a complete

5

exemption for a service operating under the Family Movie

6

Act.
And, in fact, Disney's -- one of Disney's allies

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8

making that point that there would be total immunity even

9

complained that, if the FMA became law, teenagers would be

10

deciding what the American public got to watch in the

11

privacy of their homes.
Now, obviously, it's the families who decide.

12

But

13

the point is that they recognized that the FMA would provide

14

a total immunity.

15

Very easy.

So how to reconcile those statements?

At the time, the state of the law was as it had

16
17

been for hundreds of years in Anglo American jurisprudence,

18

that there is no injury -- that there is no action, there is

19

no actionable harm absent injury, and, therefore, there had

20

to be an injury before there could be a legal wrong, de

21

minimis non curat lex.
All the cases at the time reflect -- and this is

22
23

even acknowledged by the Ninth Circuit in the MDY Industries

24

versus Blizzard Entertainment case at page 951, I believe --

25

that the cases had all required that there be some -- that

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1

for it to be actionable under the DMCA, there had to be a

2

nexus between the decryption and some kind of harm to the

3

studios.
And a long line of cases, including those from the

4
5

Federal Circuit and from the Second Circuit, had held that,

6

absent any kind of harm, any kind of injury, there could be

7

no actionable claim under the DMCA.

8

And, of course, the Family Movie Act represented a

9

grand compromise made by Congress that wanted to ensure that

10

American families had the right to enjoy filtered content

11

streamed to them for private in-home viewing,

12

notwithstanding that the studios had sued every company that

13

ever offered filtering services, including several companies

14

that, according to the Register of Copyrights, were

15

operating lawfully under existing law but were sued anyway.
And the directors were so opposed to the Family

16
17

Movie Act that they refused invitations from Congress to

18

provide somebody to testify.

19

Congress fashioned a system to attempt to protect the rights

20

of all stakeholders.

21

economic interests in that consumers were required to first

22

lawfully purchase a copy; so the studios were guaranteed a

23

revenue stream because they would sell DVDs.

The studios were protected in their

The directors were protected in that services such

24
25

So the grand bargain was that

as VidAngel were prohibited from making any fixed copy of

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1

the filtered work and from performing the filtered work

2

publicly.

3

would be the work that the directors had authorized.

So the only work the public would get to see

The consumers were protected because they would

4
5

have the right and the ability to watch filtered content in

6

their home, filtered to their specifications.
And finally, the fourth stakeholder, the

7
8

for-profit companies that Congress expressly envisioned

9

would provide the service, knowing that the studios

10

wouldn't, the for-profit companies such as VidAngel were

11

protected in that they would in theory be immune from

12

litigation.

13

And I might add that the studios were suing the

14

company called ClearPlay when the Family Movie Act became

15

law.

16

When it became law, the judge in the ClearPlay

17

action -- and the plaintiffs there included three of the

18

plaintiffs herein -- Disney, Warner Bros., and Fox.

19

THE COURT:

20

MR. QUINTO:

I know all about that.
Yeah.

The judge asked them, "Do you

21

have any claim left?" and they said, "No," and the action

22

was then dismissed.
So in all those copyright arguments, infringement

23
24

arguments that the studios make, are arguments that they

25

recognized were out the window in that case.

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So in light of this grand compromise, the point

1
2

was to create a system that did not depend on studio

3

consent.
So, obviously, if a service such as VidAngel

4
5

needed to say -- needed to go to the studios to say, "Well,

6

we have this wonderful statute, the FMA, but it means

7

nothing unless you will grant us permission to decrypt,"

8

would give the studios a veto power, the very thing that

9

Congress wanted to take away from the studios because

10

Congress knew the studios would never say yes.
So if one looks at the existing case law at the

11
12

time, all the cases said that there must be an injury before

13

you could bring an action under the DMCA.
Here there is not and cannot be any injury.

14
15

Remember, the history of the DMCA was it was enacted in

16

response to the rampant file sharing occurring in the music

17

industry and the -- there was a further concern that perhaps

18

one person might decrypt a file and a second person, perhaps

19

in another country, might then share that file worldwide.

20

And Congress wanted to find a way to reach that first person

21

who decrypted the file and thereby made the worldwide

22

infringement possible.
Here that potential does not exist.

23

There is no

24

file sharing occurring.

Everybody who watches content is

25

somebody who has first lawfully purchased a copy of the

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work.

2

watched by every VidAngel customer.

3

of file sharing.

There is no possibility

In short, there is no injury.

So under existing case law, there could not have

4
5

The studios have derived revenue from every DVD

been a claim under the DMCA.
Further, Your Honor, I would point out that the

6
7

MDY Industries versus Blizzard case that the studios want to

8

hang their hat on, addresses among other things at page 941,

9

addresses copyright misuse, which, as Your Honor knows, is

10

an affirmative defense that VidAngel has asserted in this

11

case.
The Ninth Circuit said (reading:)

12

Copyright misuse is a equitable

13
14

defense to copyright infringement, and the

15

remedy for copyright misuse is to deny the

16

copyright holder the right to enforce its

17

copyright during the period of misuse.

18

So while the misuse is occurring as to the party

19

alleging copyright misuse, the plaintiffs do not have an

20

enforceable copyright, and having an enforceable copyright

21

is a prerequisite to protection under the DMCA.

22

reason as well, the DMCA does not apply.

23

note in the same case, the same case, the Ninth Circuit at

24

page 951 addressed a situation we have here as well.

25

Ninth Circuit said --

So for that

Finally, I would

The

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(Reading:)

1

Concerning anti-trust

2

law, we note that there is no clear issue of

3

anti-competitive behavior in this case because

4

Blizzard does not seek to put a direct

5

competitor who offers a competing role-playing

6

game out of business and the parties have not

7

argued this issue.

8

defendant in a future case claims that a

9

plaintiff is attempting to enforce the DMCA

If a Section 1201(a)(2)

10

anti-circumvention right in a manner that

11

violates anti-trust law, we will then consider

12

the interplay between this new

13

anti-circumvention right and anti-trust law.

14

And that is precisely the situation here.

On

15

December 19, Your Honor will hear the studio's motion to

16

dismiss VidAngel's anti-trust counterclaim and, well, all

17

other counterclaims as well.
So, finally, Footnote 12 of that same opinion says

18
19

that -(Reading:)

20

Like the Chamberlain

21

Court -- referring to the Federal Circuit

22

decision, the principal Federal Circuit

23

decision that had held that there was no DMCA

24

action permissible absent injury -(Reading:)

25

Like the Chamberlain

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1

Court, we need not and do not reach

2

relationship between fair use under

3

Section 107 of the Copyright Act and

4

violations of Section 1201, citing

5

Chamberlain.
MDY has not claimed that Glider use

6
7

is a "fair use" of WoW's, World of Warcraft's,

8

dynamic literal [sic] elements.

9

we too leave open the question whether fair

Accordingly,

10

use might serve as an affirmative defense to a

11

prima facie violation of Section 1201.

12

So for those various reasons, I submit that the

13

studio DMCA argument is unfounded.

And when one goes back

14

to the legislative history to try to understand that

15

comment, I think it's quite clear, especially from other

16

similar remarks, that what Congress was saying or what

17

specific congressmen were saying was that you cannot rely on

18

the FMA to -- as an excuse to justify something that was

19

inexcusable to start with.
For example, the studios in their reply papers

20
21

contend that we had no answer to their point that the -- I'm

22

blanking.
Their point that their -- they had quoted language

23
24

saying that the FMA cannot be used to make legal conduct

25

that was unlawful to start with.

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Well, to start with, meaning that, if somebody had

1
2

done something in violation of copyright law, trying to

3

bring it under the penumbra of the Family Movie Act would

4

not then provide a defense.
Elsewhere in the congressional record, there is a

5
6

more specific reference to the notion that one could not,

7

say, obtain bootleg copies of a work and then filter and

8

stream them and thereby gain the protection of the Family

9

Movie Act because there was a copyright violation ab initio

10

at the very outset.

And that is precisely the point, that

11

you cannot sanitize something that was wrong at the outset

12

by trying to bring it under the FMA.
But when the FMA was enacted, it was and remains

13
14

today impossible to filter or stream filtered content,

15

indeed stream any kind of content without -- well, to stream

16

the filtered content without first decrypting it.

17

a technological measure then.

18

necessity now.

19

encrypted, it cannot be filtered, and a filtered work cannot

20

be transmitted.

That was

It's a technological

Nothing has changed.

While a work is

So absent the decryption, the FMA is meaningless.

21
22

And we have, as Your Honor may have seen, challenged the

23

studios to tell us what the FMA accomplished, what did the

24

FMA add to the law, what new right do people have to watch

25

filtered, streamed content that they didn't have before the

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1

FMA was enacted?
All we've been told is the FMA does not permit

2
3

this, the FMA does not permit that, the FMA prohibits

4

something else.

5

what did the FMA accomplish?

The studios have no answer to the question

And as I have just explained, it accomplished

6
7

allowing people, allowing American families to watch

8

filtered content filtered to their desire, to their

9

specifications, in the privacy of their homes without

10

suffering a veto from the studios or the directors.
THE COURT:

11

All right.

Mr. Quinto, let me hear

12

from Mr. Klaus as it relates to this issue, if I could,

13

please.
And I have some questions.

14
15

I would appreciate it,

if you wouldn't mind, answering them.
The question I had for you really was how -- could

16
17

you describe at least from your client's perspective a

18

scenario where a company could operate legally under the

19

FMA, if they're not licensed to stream movie content.

20

that an impossibility?

Is

Because you heard Mr. Quinto talk at length about

21
22

the fact that -- basically, he says that your client takes

23

the position that the FMA really is -- it can't be utilized

24

in a practical sense.
MR. KLAUS:

25

Yes, Your Honor.

He's wrong about

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1

that.

He's wrong about a number of things that he said.

2

There were a number of arguments that Mr. Quinto raised this

3

morning, many of them that are nowhere made in their

4

opposing papers.

I have tried to take notes on all of them.

But to the beginning, which is that the FMA

5
6

accomplished nothing when it was passed, absolutely false.

7

What Congress did was it decided that there -- there was

8

existing litigation going on in Utah at the time in 2004 and

9

2005.
There were two -- in general, two types of

10
11

services that were providing filtering.

There was one type

12

that was actually making edited copies of movies, the

13

CleanFlicks people.

14

cited.

And that's one of the cases that we

15

And it was clear from the language of the statute

16

that the CleanFlicks people who were making copies and then

17

distributing those copies of edited movies to users had no

18

defense.

19

defense either," and we can get to that in a moment.

And the Court said, "You don't have a fair use

There were another group of companies, one of

20
21

which the lead one was called ClearPlay.

Those were the

22

subject of the Huntsman case which Mr. Quinto has held out

23

the Huntsman decision as saying that the studios essentially

24

said "We have absolutely no claim against any service that

25

filters."

Absolutely false.

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What the Huntsman defendants, the ClearPlay

1
2

defendants, did was they provided a separate filter that,

3

when somebody had their own DVD lawfully purchased at home

4

in a ClearPlay machine, they could put their DVD in.

5

could put the ClearPlay filter technology that went over

6

it --

7

THE COURT:

And they would filter it.

8

MR. KLAUS:

-- and they could play it.

They

9

So the

idea that there was nothing accomplished in the studio's

10

view by the FMA is just false.

11

THE COURT:

How is that different from what

12

VidAngel does?

Aren't they -- they claim someone has

13

purchased the copy, they have filtered that copy, and then,

14

when they're done with it, they sell it back to the company

15

so someone else can purchase it and then filter it.
MR. KLAUS:

16

Well, that requires me to go back to

17

one of the first things that Mr. Quinto said in response to

18

your questions about how the service works.

19

some details I just want to make sure we're clear on.

And there were

I don't have a stack of DVDs with me, but if you

20
21

will indulge me, I will use my binder.

22

are too many in this case to demonstrate my point.
One of the things that Your Honor said, "Was is it

23
24

Unfortunately, there

the case that the user buys a DVD for $20.00?"
Mr. Quinto said, "Yes."

25

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1

You said, "VidAngel, then, decrypts the DVD?"

2

He said, "Yes."

3

What happens is at the beginning VidAngel buys a

That's wrong.

4

stack of DVDs or Blu-ray disks.

5

Imagine this has 500 or

2,000 and I take one.
If I am VidAngel, what I do is I take this one

6
7

DVD, and I rip it.

I use -- I use software that is plainly

8

circumvention software that's illegal for distribution in

9

the United States.

I know it's illegal for distribution in

10

the United States, and I use it to rip the movie out.

And

11

from that one DVD I have made a master copy that I then put

12

on to a server, just that one master copy.
All the others, the whole stack of 500 or 1,000

13
14

that they estimate is going to be used, those in the

15

cellophane, those get put in a vault.

16

barcode.

17

the fiction is that what the customer is buying and

18

streaming is the copy that's over here in the vault.

They have a little

And when somebody goes and says, "I am buying it,"

19

The reality is that, what the customer is seeing,

20

all of them, the thousands of customers who stream the same

21

movie over and over again, they're seeing the copy that was

22

taken from DVD Number 1, and that became the master copy.
THE COURT:

23

So let me ask you, then.

Would your

24

position change if every time someone purchased a DVD they

25

took one from that stack to the side and put it up on the

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server?

2

MR. KLAUS:

No.

3

THE COURT:

And rip it?

4

MR. KLAUS:

It would still be ripping.

5

still be copying.

6

It would

It would still be publicly performing the

movie.
THE COURT:

7

What's your response to the notion

8

that -- to Mr. Quinto's point that you can't filter without

9

ripping?
MR. KLAUS:

10

That is wrong.

We pointed out that

11

there is another service, one of their competitors,

12

ClearPlay, the same company that made the DVDs.

13

a service that -- they offer a service that works in

14

conjunction with authorized streams from Google Play.

They offer

So Google Play has licenses with copyright owners.

15
16

They stream -- they will stream movies to you, to you, to

17

everyone in this courtroom for a fee.

18

into it the acquisition cost of having to stream a copy.
And ClearPlay has a service.

19

The fee has built

What we know is what

20

Mr. Harmon has said is he thinks it's similar to the one

21

that VidAngel for a time was trying to use, but they have a

22

service that puts a filter over a stream.
Now, I can't tell you that I know all of the in's

23
24

and out's of it, but based on what we do know, it appears

25

that they have -- it appears to us at least, that what they

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1

have done is that ClearPlay has figured out a way to put a

2

filter on top of an authorized stream.
So there is some other way.

3

When he says that --

4

he points to us and says, "You have absolutely no answer."

5

He is just not reading our papers.

6

evidence that we put in that shows that there is some other

7

way to do it.

8

Act -- let me get to some of the points that Mr. Quinto

9

raised.

He is not reading the

Beyond that, Your Honor, the Family Movie

So the Family Movie Act -- it's a statute that

10
11

we're talking about here.

We heard a lot this morning about

12

there being a grand bargain, about there being an awareness

13

in the air that the existing law at the time said no injury.

14

None of that, by the way, none of that is in their papers.

15

It's not in their papers for good reason because we would

16

have shown that it was wrong.
So it's a statute.

17

And the first and best

18

evidence of what it means for purposes of construing the

19

statute is to look to see what the language is.

20

to hand up the language of the statute, Your Honor, if it

21

will be helpful.

I'm happy

22

THE COURT:

I think I have it.

23

MR. KLAUS:

Let me start with what the Family

24

Movie Act says.

25

statute.

Your Honor, I do have two copies of the

May I approach.

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1

THE COURT:

Yes.

2

MR. KLAUS:

I have copies --

3

THE COURT:

You have provided it to the defense?

4

MR. KLAUS:

Yes.

5

THE COURT:

All right.

6

MR. KLAUS:

Thank you.

7

The text of the statute of the FMA is at Tab 3,

8

Your Honor.

This is 17 USC Section 110.

And Section --

9

what Section 110 does is it sets out a whole bunch of

10

various exemptions to the exclusive rights of copyright.

11

The Family Movie Act happens to be in

12

paragraph 11, but the preamble, what introduces the entirety

13

of it is, notwithstanding the provisions of Section 106 --

14

doesn't say 1201 which is a separate section of the title --

15

the following are not infringements of copyright.
If Your Honor then skips ahead several pages to

16
17

the actual text -- what is not an infringement is the making

18

imperceptible.

19

conduct of making it imperceptible.

That conduct is not an infringement, the

And it describes what the requirements are for

20
21

something to be making imperceptible but not within it.

22

it makes clear that, if you are making imperceptible during

23

a performance and/or transmitted to the household, it has to

24

be from an authorized copy.
THE COURT:

25

Right.

And

But VidAngel says it is an

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1

authorized copy.

"We bought it.

2

bought it, and they bought it from us."
MR. KLAUS:

3

You get money from when we
So it's authorized.

But it's clearly not authorized,

4

Your Honor, for two reasons.

One is -- remember if we go

5

back to the example that I raised at the outset.
When Mr. Quinto is having something streamed, it's

6
7

not coming from the DVD that he supposedly bought.

8

coming from the copy that they created by ripping the DVD

9

that they had no authorization to do and the copy that they

10

made and then put onto a server that they have no

11

authorization to make.

12

that they are doing it.

It's

THE COURT:

13

That's not -- that is simply the way
It is not an authorized copy.

Let me play devil's advocate for a

14

second.

Isn't that really a function of semantics?

They

15

bought it.

16

And I assume you don't dispute that you got revenue from

17

that.

You don't dispute that they bought those copies.

Their purchase was authorized.
They have put this copy of this CD onto the server

18
19

to use multiple times, but it doesn't negate the fact that

20

their original purchase of the CD -- or DVD, I should say,

21

was an authorized purchase; correct?
MR. KLAUS:

22

The original DVD is itself -- the

23

movie that is on that particular DVD is an authorized copy.

24

The copy that is made to the computer server is

25

unauthorized.

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And that is the -- Your Honor, we think it's plain

1
2

from the language of the law, but if you look at the

3

Capitol Records versus the ReDigi case, that was the case

4

about moving the used iTunes store purchases, your downloads

5

from iTunes to a server.

6

"No.

7

reproduction rights."

You have made a new copy.

You have violated the

To answer your question, that is not an

8
9

And what Judge Sullivan said is,

authorized -- that's not an authorized copy.
THE COURT:

10

From your perspective, then, the only

11

authorized method to do this would be the ClearPlay model

12

where there is a DVD and somehow some way ClearPlay or --

13

has designed sort of a filter onto that DVD so, as it's

14

playing, it can filter.
MR. KLAUS:

15

Somebody can do that technology.

16

Somebody could actually try to go out and get a license.

17

And I do want to get under this point, Your Honor, because

18

Mr. Quinto said, "Copyright misuse.

19

why you can't enforce your rights."

That's another reason

Well, copyright misuse is alleged when they

20
21

amended their affirmative defenses in the case.

22

facts in to support it.

23

that they are relying on are their anti-trust allegations.

I presume that what the facts are

This is a preliminary injunction hearing,

24
25

They put no

Your Honor.

They are supposed to put in facts into the

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1

record, not just hurling statements that the studios don't

2

want this, the studios will never do this, the studios have

3

interfered with us at every turn without pointing to the

4

actual evidence showing it.
And the reason they're not doing it is they don't

5
6

have any evidence.

The business plan -- the business plan

7

of VidAngel from the get-go, when it went to this model, was

8

to try to develop a huge base of users so that then, when

9

they would come to the studios to negotiate a license, they

10

would have significant leverage during the licensing

11

negotiations.
I am getting a little ahead here, Your Honor, but

12
13

I would submit that goes directly to the balance of the

14

equities and the hardships and the fact that they have not

15

behaved equitably.
THE COURT:

16

Their argument is, look.

17

gnat become a hornet's nest.

18

approached you, all right.

19

You're not a problem.

20

Disney is says, "Time out.

You let the

I mean, when they first

Whatever.

Do your thing.

And now people are using it and
Houston, we have a problem."

21

MR. KLAUS:

Let me talk about their delay.

22

THE COURT:

I am asking these questions because I

23

just want to hear from the parties.

Your answer -- you cite

24

the cases that talk about litigation, the cost of

25

litigation, and things of that nature.

But I guess I really

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1

would like to hear from you, sort of, did Disney let this

2

gnat turn into a hornet's nest?

3

MR. KLAUS:

It's not that we let a gnat turn into

4

a hornet's nest.

It's the reality of the world that we live

5

in in 2015, 2016 is that there are a lot of gnats, and a lot

6

of the gnats go away and die of their own weight because

7

they just don't take off.
And the law -- the law says that we are entitled

8
9

to wait and we don't have to bring suit and we don't forfeit

10

the right to obtain a preliminary injunction if they turned

11

into a hornet in the meantime.
The reality is that my client spent -- once they

12
13

received Mr. Quinto's letters, which were not business

14

person to business letters.

15

litigator in this city.

16

business development people but to the general counsel of

17

the various companies.

18

letter that was saying, "Here is all the things we're doing.

19

We think we're legal.

20

disagree that we're legal."

Mr. Quinto is a very well-known

He addressed his letters not to

It had all the markings of being a

You go ahead and tell us if you

And, in fact, Mr. Harmon said that the one thing

21
22

he could identify that they might have done actually

23

concretely differently if they had been sued if they

24

perceived some sort of response was to then go off and force

25

us to litigate through the context of a declaratory judgment

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claim.
What the law says is -- again, this is the --

2
3

starting with the Arc of California case from the

4

Ninth Circuit -- makes it clear that courts are loath to

5

withhold injunctive relief on this basis alone, that you are

6

entitled to see what happens to the harm.

7

And the harm here, Your Honor, is not simply the

8

fact that they grew from 5,000 users during a limited beta

9

test as described in Mr. Quinto's letter to a hundred

10

thousand users and growing with many more projected into the

11

future when we filed suit.

12

continues to add works.

It's that this is a service that

So we have 79 titles listed in Exhibit A to the

13
14

Complaint.

They continue to add them.

If you go to

15

VidAngel today and go to what their press room and news says

16

is, the very first thing that you will see is a whole slew

17

of titles that they're going to add in November, a whole

18

slew of them, a whole bunch of pictures of the DVD covers.
And it says "Please stay tuned because there will

19
20

be more."

So Arc of California makes clear that, where you

21

have ongoing, continuing, worsening harm, that can justify

22

relief as well.
THE COURT:

23

Mr. Klaus, I appreciate you going back

24

and forth.

And I have some other questions -- I am sure you

25

have some other points -- but let's talk about, sort of,

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this issue for a minute, if we could, a little further.
The harm -- isn't the harm really economic?

2
3

Or is

there more than that?
MR. KLAUS:

The harm is definitely more than

6

THE COURT:

Tell me why.

7

MR. KLAUS:

For several reasons.

4
5

economic.

First of all,

8

just with respect to the idea that money damages would be

9

adequate here to compensate us for our loss -- wrong.
Just taking the 79 works that are at issue in the

10
11

Complaint, the potential statutory damages just for the

12

infringement of those works is $11.85 million.

13

are just those works.

14

continuing to accrue as they continue to add more.

And they're the ones that are

There is no evidence that VidAngel would be able

15
16

And those

to pay an actual damages award at the end of the case.
And if you look at the Second Circuit decision in

17
18

WPIX versus ivi, it's one of many cases.

But what the

19

Second Circuit said there was, "This defendant will not be

20

able to pay those damages at the end of the day.

21

that is that itself is irreparable harm."

Therefore,

Second point -- the other thing is that they are

22
23

the relationships that we have with our licensees like

24

Google Play, like Amazon and Apple's iTunes who come to us

25

and legitimately negotiate for and receive licenses.

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You have a service here that has decided that it

1
2

will appropriate for itself the decision of when, where, for

3

how much, under what circumstances, under what security

4

considerations, under what type of user experience they will

5

make our content available to build their business, to have

6

the money go from their revenues directly to the principals

7

and the owners of their company through their advertising

8

agency.

9

the back of our content.

They have made the decision to build a business on

And the cases are -- it's the WTV Systems or the

10
11

Zediva case from this district which outlines in detail the

12

type of harm -- and I will give you the cite for that,

13

Your Honor.

14

THE COURT:

I have the case up here.

15

MR. KLAUS:

Okay.

There is extensive discussion

16

in that opinion.

It's hardly alone.

They're also in the

17

BarryDriller.com cases from this district as well.
There is discussion of the fact that, when a

18
19

service comes in and says, "We're going to use your content,

20

we're going to build our business based on your content" --

21

and the cases say that that in itself is a harm, it harms

22

your relationship with your licensees.
As Mr. Cittadine says in his declaration -- he

23
24

points to examples of Fox titles that were attached to the

25

Complaint.

He says, "Those titles are right now within an

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exclusivity window for one of our authorized distributors."

2

This happened to be HBO.
We have a period of time where they're the only

3
4

ones -- they're the only service who can stream, and that is

5

there is an economic relationship there.

6

get that exclusive right.

7

copyright owner, have the right to determine.

It's something that we, as the

And when somebody like VidAngel comes in and says,

8
9

They pay money to

"We're going to help ourselves to this, we're going to

10

make -- we're going to decide what to do," that then, that

11

type of harm has been recognized repeatedly in the law as

12

being irreparable.
There is also the point, Your Honor, that there is

13
14

a -- one of the things that Judge Walter said in the Zediva

15

case is that there is a confusion of what consumer

16

expectations are and consumer beliefs are about what is

17

legal.
One of the other things that you will see if you

18
19

go to the VidAngel site -- and they have a whole blog

20

devoted to this lawsuit.

21

say "We're legal.

22

changing the minds of consumers about what is legal when we

23

submit, Your Honor, is the law is clear that what they are

24

doing in terms of ripping DVDs and circumventing is plainly

25

illegal and should be enjoined.

They have lots of statements that

What we're doing is legal."

And you are

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They are making copies to computer servers without

1
2

any authorization to do so, also illegal and infringement.

3

They are streaming, transmitting, performances of the same

4

movie, the same television shows to an enormous public

5

audience without any streaming license, the type that other

6

services have to obtain.
If there are other questions you have on the

7
8

adequacy of money damages -- I did want to turn back to the

9

1201.
THE COURT:

11

No, I don't have any further questions

MR. KLAUS:

10

Okay.

on that.

12

Let me turn back, if I may,

13

Your Honor, to the Section 1201 arguments.

14

we're clear, if you could turn in your binder, Your Honor --

15

I put the text of the DMCA.

16

Tab Number 1.

17

first sentence of Subsection (a)(1)(A) --

Section 1201 is behind

Just so we're clear, what it says is, the

(Reading:)

18

And just so

No person shall

19

circumvent a technological measure that

20

effectively controls access to a work

21

protected under this title.

22

Now, the definition section for this particular

23

subsection, circumventing access controls, is on the next

24

page at Subsection (a)(3).

25

subsection."

And it says "As used in this

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And this is important, Your Honor, because the

1
2

section that Mr. Quinto put up to try to make his argument

3

about there being some connection between a work being

4

protected under this title and the Family Movie Act deals

5

with a separate circumvention violation in a separate

6

definition.
The one that controls this case says, first, to

7
8

circumvent a technological measure means to descramble,

9

decrypt, otherwise avoid, bypass, remove the technological

10

measure without the authority of the copyright owner.
They admit in their answer, they admit in their

11
12

pleadings they circumvent.

13

encryption."

14

They say, "We remove the

they plainly do that.

We'll get to their defenses in a moment, but

The second point is they say a technological

15
16

measure effectively controls access to a work -- that's in

17

Subsection capital (B) -- if the measure, in the ordinary

18

course of its operation, requires the application of

19

information, a process, or treatment with the authority of

20

the copyright owner to gain access to the work.
That's what it means, whether there is -- whether

21
22

something effectively protects access to the work.
Now, Mr. Quinto made a reference to his expert,

23
24

Dr. Meldahl, having said in his declaration that the

25

protection measures that are at issue here on DVDs and

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Blu-ray disks don't effectively protect the right of a

2

copyright owner to secure access to the work.
This is an important point, Your Honor, because,

3
4

number one, it wasn't raised in their opposition brief.

We

5

did because Dr. Meldahl raised it -- respond to it in our

6

reply brief.
The point here on whether something effectively

7
8

controls access, Dr. Meldahl says, well, CSS, which is the

9

protection measures for DVDs, and AACS and DD Plus which are

10

for Blu-ray disks, those don't effectively control access

11

because there are all these illegal circumvention devices

12

that are out there like any DVD HD which they use.

13

Therefore, it doesn't control it.
Just to be clear, the cases, when somebody has

14
15

raised this argument, have squarely rejected it.

16

the 321 Studios against MGM case which we cite in our

17

papers.

18

cite in our papers where Judge Patel said this argument is

19

equivalent to somebody saying that, because there are

20

skeleton keys to break through locks, a lock doesn't

21

effectively control acts.

22

reading of the -- that's simply not a tenable reading of the

23

statute.

There is also the RealNetworks decision that we

And that is just not a tenable

Now, you have it so that the 1201 violation, we

24
25

There is

would submit, is established.

So then we go to the question

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of whether the Family Movie Act creates an exemption for

2

circumvention.

3

which I think makes clear that it is limited to Section 106.

4

With respect to the legislative history,

I went through the language of Section 110,

5

Your Honor asked about the statements that were made by

6

Senator Hatch who was the Senate sponsor of the bill.

7

statements are at Tab 5 of the binder.
And they are at the page at the bottom that has

8
9

His

the number Exhibit G, RJN 269.

And he was quite clear.

He

10

said it would not be a defense to a claim of violation of

11

Section 1201 that the circumvention is for the purpose of

12

engaging in the conduct covered by this new exemption in

13

Section 110(11).
Mr. Quinto threw up a whole bunch of statements

14
15

about why he thought the legislative history actually

16

supported his view that, even though the statute is plain,

17

that the Family Movie Act does not apply to or excuse the

18

Section 1201 violation, why he thought there was necessarily

19

some grand bargain.
What he doesn't point to is a single sentence

20
21

anywhere from any legislator that says something the

22

opposite of what Senator Hatch did.

23

the actual legislative -- if one looks beyond the statute

24

which is plain as can be, the only specific statement in --

25

by a member of Congress dealing with circumvention is what

And so if one looks at

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Senator Hatch said, and the other point in the legislative

2

history that we cited in our papers is that this wasn't an

3

oversight.
The House committee actually considered whether or

4
5

not to say specifically this has nothing to do with

6

Section 1201.

7

she thought that would be something that should be added,

8

and Register Peters sent a letter back which we put into the

9

record that said, "No, you don't need to have it."

They asked the Register of Copyrights whether

So it

10

showed that Congress actually considered what was being

11

discussed here and decided not to do it.

12

inadvertent.

It's not

It's not accidental.

Let me turn to fair use because you asked

13
14

Mr. Quinto if there was a concession by VidAngel that fair

15

use is not a defense to circumvention.

16

not conceding that even though they didn't say anything

17

about it in their opposition papers.

He said now they're

Just to be clear, Your Honor, this isn't an area

18
19

where there is not case law on this.

And I would ask

20

Your Honor to look -- the first and I think still the most

21

authoritative discussion of this is in Judge Kaplan's

22

decision in the Universal versus Reimerdes case.

23

on that is 111 F.Supp.2d 294, and the discussion is around

24

page 322.

The cite

And just to be clear, the Reimerdes case -- this

25

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was the big challenge to the constitutionality of the DMCA

2

circumvention provision.

3

led to -- this very opinion led to the case called

4

United States versus Corley which is the Second Circuit

5

decision which squarely rejected the constitutional denial

6

of fair use arguments that Mr. Quinto was trying to

7

incorporate by reference from the Green case in the

8

District of Columbia.

It was brought in New York.

It

I will get to that in a moment.

But what Judge Kaplan said in the Reimerdes case

9
10

is that this wasn't an oversight that fair use was not a

11

defense to a DMCA claim.

12

at Section 107 of Title 17.

13

starts by saying that notwithstanding the provisions of

14

Section 106 -- meaning fair use is a defense to the

15

violation of those exclusive rights.

16

a claim of circumvention.

The fair use defense is codified
Just like Section 110, it

It is not a defense to

What the judge said -- and I won't go through it

17
18

in excruciating detail -- but he said the legislative

19

history of the DMCA showed that Congress was encouraged to

20

extend the fair use defense to a claim of circumvention.

21

And Congress made the deliberate decision to say, no.

22

is separate.

23

law to break through the locks that protect these works.

24

What somebody does with the work later on when

25

That

What circumvention, it is a violation of the

they -- if and when they violate one of the exclusive rights

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of copyright, you then may be able to have that subject to a

2

fair use defense.

3

the violation itself, the act of circumventing is not

4

subject to a fair use defense.

But until the point where that happens,

Now, the other thing I would point out is that

5
6

there is a mechanism that Congress did put in place.

It's

7

called a Triennial Rulemaking Proceeding by the Librarian of

8

Congress.

9

come forward and they say, "We think that, when you balance

What happens is every three years various groups

10

the interests that Congress told you to balance in the

11

statute, this should be added to the list of enumerated

12

exemptions."

13

Congress has promulgated that covers VidAngel's defense

14

here, simply does not exist.

There is no exemption that the Librarian of

Beyond the Reimerdes case, there is

15
16

Judge Gutierrez's decision in this district in the

17

United States versus Crippen case, which clearly says fair

18

use is not a defense.

19

we cited from the Southern District that says that.

20

is no case that they cited on the other side that says that

21

fair use is a defense.

There is the Dish Network case that
There

They do say that the MDY Court said, "We don't

22
23

have to make the decision."

But that's not the

24

Ninth Circuit saying there is a fair use defense.

25

the Ninth Circuit saying, "We're not going to get involved

That's

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with this question."

So the state of the law now is that

2

there is no fair use defense to the circumvention claim.
And, Your Honor, if the -- so there is no Family

3
4

Movie Act defense to the circumvention claim.

There is no

5

fair use defense to the circumvention claim.

The -- there

6

is no -- they haven't even put in authority for the

7

proposition that copyright misuse, if they had supported it,

8

which they haven't, would be a defense to a circumvention

9

claim.
So what you have at the end of the day is they

10
11

are -- they have violated in the past.

They have made clear

12

they will continue to violate in the future the

13

anti-circumvention provision unless a court tells them, "No,

14

you can't rip disks.

15

stop doing it."

This is illegal conduct.

You have to

That in and of itself is one grounds for an

16
17

injunction.

There are two other claims that we've made,

18

Your Honor.

Happy to go into them with as much detail as

19

you would like.
The first is the violation of the reproduction

20
21

right and the violation of the reproduction right to make

22

the copy and to put it on the server so that it can be

23

streamed.
Again, we would -- the defenses that VidAngel

24
25

raises here -- they raise the Family Movie Act as a defense,

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but the Family Movie Act does not say -- simply does not say

2

that so long as you are filtering, you get to copy to your

3

heart's content, doesn't say it.
Is says, "You will not be liable for infringing

4
5

copyright by reason of the act of making imperceptible."

6

Doesn't say anything about "You also have a right under the

7

statute to make a copy."
Second thing they say on the violation of the

8
9

reproduction right.

They say, "Well, the copies that we're

10

making are intermediate copies because they are a means to

11

an end for us to be able to stream."
Well, there is nothing intermediate about the

12
13

copies that are made.

They're permanent.

They stay on the

14

server.

15

one copy that they ripped here that's their master copy.

16

That stays there.

It's the one copy, going back to my example, the

That's not intermediate or temporary.

And the other point is, Your Honor, the cases that

17
18

they are relying on, as we've pointed out, the Sega versus

19

Accolade and the Sony versus Connectix case, those

20

intermediate copying is a term of art in copyright law.
It deals with a very specific, very particular

21
22

situation where somebody makes a copy of the interface

23

between two computer programs to discover what the courts

24

have said are the functional elements to allow two computer

25

programs to interoperate.

That has nothing to do with what

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they're doing.

They're making copies so that they can

2

stream them to users and make money from the streaming

3

service that they operate.
Third claim is the public performance right.

4

And

5

the public performance right, I am happy to go through the

6

statutory definitions of this if you would like, Your Honor.

7

THE COURT:

Yes.

8

MR. KLAUS:

The defense on this -- twofold.

9

Family Movie Act, to the public performance right.

And as

10

said before, Your Honor, what they are doing is they are not

11

streaming from an authorized copy.

12

a master copy to a mass public audience.

They are streaming from

Nothing in the statute says you get a license to

13
14

do that, you are excused from the requirement if you are

15

going to operate a streaming business and actually stream

16

the movies yourself, that you are excused from that.
The other defense they raise is fair use.

17
18

of points on fair use.

19

establish at the preliminary injunction stage.

20

Perfect 10 versus Amazon.com case.

21

be clearer.

22

Couple

Number one, it's their burden to

will prevail on their fair use defense.

That's the

Ninth Circuit couldn't

They haven't come close to showing that they

Four factors under fair use, go through them

23
24

quickly, Your Honor.

First factor, ask whether the use is

25

commercial, whether it's transformative.

Plainly, it's

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commercial -- this is a for-profit enterprise that's going

2

on here -- and not transformative under the case law,

3

including the Worldwide Church of God case that we've cited

4

from this circuit, the Monge versus Maya Magazines case that

5

we've cited from this circuit, the Elvis Presley Enterprises

6

case.

7

to people for the same intrinsic purpose that we do.

They are showing movies.

They are streaming movies

The fact that they put filters on and that some

8
9

language may be skipped over or that some scenes may be cut

10

doesn't change the fact that they are streaming the movies.
THE COURT:

11

What about the notion that by taking

12

out -- whatever, smoking, foul language, violence?

13

that change the nature of the movie, therefore, at least,

14

from the defendant's perspective, making it transformative?
MR. KLAUS:

15

Doesn't

No, it doesn't, Your Honor, and for

16

the following reason, which is the movie that they are still

17

showing is "Star Wars."

18

they are advertising to people is "Star Wars."

19

or three minutes is taken out, it's no different than a

20

photograph being cropped in a particular way, which is the

21

case from the Ninth Circuit on the Monge case, the same

22

extrinsic purpose.
THE COURT:

23

That's not -- they're not -- what
And if two

Even though the violent portions of

24

the movie are taken out?

I don't think I have seen -- I am

25

just trying to think of a movie where, if you take out some

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of the violence, it could change the tenor of the movie.

2

The story is the same, but you are taking out the bloods and

3

guts.
MR. KLAUS:

4

You are taking out some things, but

5

the question under the case law is generally whether it's

6

the heart of the work.
THE COURT:

7

Your position is, even when you take

8

those things out, "Star Wars" is still "Star Wars," "Fast

9

and Furious" is still "Fast and Furious."
MR. KLAUS:

10

Absolutely, Your Honor.

And if it was

11

not that case, then when in airplane -- on the airplane when

12

you have seen a movie and it's sitting there so that

13

everybody in the plane can see right in the middle of the

14

cabin and they had -- it says "Edited for inflight service,"

15

what -- if what they were saying is right, that that's a

16

fair use to take that out and transform it in that way, that

17

that's transformative, then that would be a different work.

18

And nobody believes that, Your Honor.

19

that is somehow a different work.
THE COURT:

20
21

Nobody believes that

I think at least three or four people

over there do.
MR. KLAUS:

22

When I say "nobody," let me be clear.

23

No case has ever said that something like that is

24

transformative.
THE COURT:

25

I appreciate the clarification.

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MR. KLAUS:

Thank you, Your Honor.

2

The second point, the nature of the work, nature

3

of the work, movies, TV shows are at the heart of copyright

4

protection.
Third factor, the amount, the substantiality of

5
6

the use, with respect to the copying that's being done, it's

7

a hundred percent.

With respect to the amount and substantiality for

8
9

It's verbatim.

the stream -- now, you did ask the question, and we don't

10

know for certain, but I believe I heard Mr. Quinto say that

11

on average people select two filters.

And the --

12

THE COURT:

Ninety-six percent I think he said.

13

MR. KLAUS:

Ninety-six percent.

14

But the filters are taken out, still leave the

15

heart of the work.

That's what the question is.

16

question is is it the heart of the work?
THE COURT:

17

The

Is it -- I am going back to this

18

point.

I just want to make sure I understand.

19

view that there is no amount of filtering that really

20

changes a movie from the heart of its work?
MR. KLAUS:

21

Is it your

Your Honor, I can't imagine a filter

22

that would be applied here.

They certainly didn't come

23

forward with one in opposition here saying, "Look, user

24

Number 97,322, they took a two-hour movie and they applied

25

so many filters to it that what they got was 90 seconds or

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1

they got 2 1/2 minutes."

2

credible, Your Honor.

3

copying.

I just don't think that's

And, again, it's not verbatim

It's the heart of the work that's the test.
The fourth factor which the Supreme Court has said

4
5

is the most important factor is the effect of this on the

6

market for the work.
And a couple of points on that, Your Honor.

7

One

8

is, because it's a commercial use, there is a presumption

9

that they have to rebut that they don't harm the market.

10

And the second thing is that the question isn't -- well,

11

what if VidAngel just keeps operating its business this way?

12

That's not what the fourth factor says.

The

13

fourth factor says, "You don't just look at VidAngel.

You

14

look at what would happen if VidAngel was allowed to do this

15

and lots of other people were allowed to come in and copy.

16

What would the effect of that be on the market for the

17

work?"

18

And it doesn't take a lot of imagination here,

19

Your Honor, to think if what VidAngel is doing is legal,

20

there is nothing stopping another service from setting up a

21

DVD buying and streaming service.

22

The Family Movie Act is content neutral.

Doesn't

23

say what you have to take out, doesn't have a requirement of

24

what the percentage of content that's taken out so long as

25

it's limited.

Congress left that deliberately open.

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1

So you could have -- frankly, another motion

2

picture studio could decide -- one of my clients could

3

decide that they wanted another client's repertoire, and

4

they'll simply go out and buy the DVDs, and they'll put a

5

filter on.

6

particular type of filters.

They don't have to advertise it as being any

They can say, "You know what?

7

The last ten

8

seconds of the credit, here is the filter for that."

9

because the statute is content neutral, that could be done

10

And

that way.
There is no reason to think that Congress thought

11
12

that that was what it was doing with the Family Movie Act,

13

was setting up a massive end-run around these established

14

rights.

15

believe that that's not the type of use that if widespread

16

would disrupt and destabilize the entire system.

And there is no reason under the case law to

The other point I would say is, respect to

17
18

evidence that we put in, we put in evidence of user comments

19

that we found and users who have said repeatedly things

20

like, "I really like VidAngel.

21

when I don't use any or most of the filters."

22

cites to YouTube how-to videos that said, "Hey, there is a

23

great new service out there.

24

only a dollar a day."

It's a great service even
We put in

And do you know what?

It's

People who say on these YouTube videos, "I don't

25

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1

like paying 5.99 to iTunes, and so I will go to VidAngel and

2

I will use a -- I will take a snippet away, like at this

3

point in time the opening or the closing credits."

4

say, "This is the service that I will use and it's a dollar

5

alternative."

And they

That is, by the way, exactly the way that they

6
7

have marketed this service.

Just to be clear, to come back

8

to the question of the -- whether or not what's going on

9

here is that they're actually selling all that big stack of

10

DVDs and they're just engaging in the repeated sale, we

11

think, Your Honor, that the evidence is clear that the

12

sale/buyback, it's a gimmick.

13

in place so that, when they were sued, they would be able to

14

say, "Well, we're actually just streaming the content that

15

the user owns."

It's a gimmick that was put

What the evidence shows -- Mr. Quinto made

16
17

reference to 20,000 -- which is nowhere in the record about

18

there being 20,000 permanently owned copies.

19

been brought in for purposes of this hearing.

20

nothing in the record about that.

That has just
There is

But the important point is what they have said,

21
22

and when they have said this to the Securities and Exchange

23

Commission in the document that we submitted with our

24

supplemental request for judicial notice.

25

investment prospectus to investors.

This is their

There they have got to

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be honest.

They have got to completely open the kimono and

2

say, "Here is what's really going on."
And what they pointed out is that 99 1/2 percent

3
4

of all their million and a half transactions that have

5

happened so far have been short term.

6

short term is that the movie has been sold back within five

7

hours somebody having rented it.

8

way they promote the service.

And the definition of

Meaning that this is the

If you go to their Web site, Your Honor, the very

9
10

first thing you see on the landing page is a video that

11

says -- it doesn't say how does filtering work.

12

"How do you get one dollar movies and explained to you in 15

13

seconds."

14

the program to their users.

15

people and reminders to people.

16

back now."

17

the system.

That's the way they have advertised and marketed
It is full of incentives to
"Please sell your movie

And that's exactly the way that people have used

I -- I believe we've covered irreparable harm,

18
19

It says

their delay argument.
On the balance of the equities, Your Honor, very

20
21

briefly.

First of all, we think the law is clear in the

22

Ninth Circuit there is no hardship to a defendant from

23

having to comply with the law.

24

Triad case and the Cadence case from the Ninth Circuit that

25

we've cited.

Those are the -- that's the

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We also think that VidAngel here behaved

1
2

inequitably.

They decided deliberately that they would

3

pursue a strategy of seeking forgiveness rather than

4

permission.
And in the binder that you have, Your Honor,

5
6

behind Tab 7, one of the documents that we've put in, which

7

is Mr. Harmon responding to a user comment about why they've

8

got to go through this buy/sell back thing, this is what he

9

says in February of 2015.

Mr. Harmon says, "We'll have to

10

be" -- he says, "We can't change to a rental," in the bottom

11

paragraph, "We can't change to a rental unless we get

12

licensing from Hollywood.

13

do that.

14

vault them at our warehouse, and stream you a filtered

15

movie.

16

could come up with in order to offer you the value of a

17

Redbox while staying buttoned up legally."

We'll have to be a lot bigger to

Until then, we sell DVDs and Blu-rays to you,

The buyback system was the most creative way we

And then at Tab 13, Your Honor, there is an e-mail

18
19

from Mr. Harmon, the very top, September 29th, 2015.

20

This

is him talking to his main investors.
And what he says in that second paragraph -- this

21
22

is where he's talking about why they're going with the

23

dollar a day system.

24

model that -- this is the model that worked with consumers.

25

Based on our data, we need to get to around a 20 percent

He said, "It worked.

This is the

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1

increase in conversion rates to justify the loss in revenue

2

on the SD content" -- that means standard definition.

3

"Given the results, we're running with it because we think

4

it's going to better achieve our goal of building a

5

distribution platform.

6

possible."

We need to acquire users as fast as

The strategy here, Your Honor, always has been "We

7
8

will help ourselves to the plaintiffs' content.

9

decide how we will do it.

We will

We will do it in a way that

10

offers a price advantage, that offers availability

11

advantages to users, and we will build up a user base so

12

that, when we then go and try to negotiate licenses, we'll

13

have better leverage in those licensing negotiations."

14

Manifestly inequitable, Your Honor.

15

In terms of

the balancing of the equities, nothing to commend it.
The other point I will make, Your Honor, is there

16
17

are statements that VidAngel makes about the harm --

18

statements that VidAngel makes about the harm to its

19

employees and that it's a small start-up.

20

And we've pointed out again because we have the

21

SEC filing -- and they had to be open and honest with the

22

SEC -- turns out that, in the first half of this calendar

23

year, what they've made through their -- the Freudian slip

24

that Mr. Quinto made, their rental service, but whatever you

25

want to call it, their short-term transactions,

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$2.4 million.

The amount that they've turned around and

2

paid to Harmon Brothers, LLC, an Internet advertising

3

company that is owned by the same people who own this,

4

$2.2 million, Your Honor.
What they are doing is they are simply cycling the

5
6

money that they are making from exploiting our content and

7

paying it directly to themselves, to the owners of the

8

business.
Final factor, the public interest.

9

Public

10

interest is served by requiring that the law be complied

11

with.

12

alternatives that people can go to who really do want to

13

filter.

And as we pointed out as well, Your Honor, there are

And there is no --

14

THE COURT:

15

"alternatives," in the plural.

16

ClearPlay?

Isn't there really only this

Or is there another service out there?

MR. KLAUS:

17

Is there -- you are saying there are

The streaming service that I am aware

18

of is ClearPlay.

I do know that there is ClearPlay.

I

19

believe, although I can't quote just off the top of my head,

20

Your Honor -- there are other services that may provide the

21

DVD-type filtering.

22

THE COURT:

Other services apart from VidAngel?

23

MR. KLAUS:

When I say the "DVD filtering," what I

24

mean is somebody who has a DVD player at home and they get a

25

DVD and they then -- they are then able to watch it that

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1

way.
THE COURT:

2

Mr. Quinto, you are standing up.

3

there something you want to say?

4

MR. QUINTO:

Is

Yes, Your Honor.

The Court was very

5

generous in allowing me to explain VidAngel's case, and I

6

understand that the studios have a lot of argument they want

7

to present to the Court, but I am cognizant of the time and

8

hoping the Court will allow me a reasonable brief period to

9

respond -THE COURT:

10

Oh, no.

We may take a break, but you

11

all aren't going anywhere, if that's your concern, is that I

12

was going to shut off at 12:00.

13

intention.

14

You may be hungry, but you will have a chance to respond.

So you are going to have a chance to respond.

15

MR. QUINTO:

16

THE COURT:

17

I can live with hunger, Your Honor.
I'm sorry.

Mr. Klaus, is there

anything further you wish to add?
MR. KLAUS:

18
19

No, that's not my

Unless Your Honor has any other

questions -THE COURT:

20

I am just curious, while I have you up

21

here.

The defendants talk about a security bond.

22

your response to that?
MR. KLAUS:

23

What's

That a -- looking to the reasonable

24

precedence, what we've cited, the ones that have been

25

entered in cases in this district, including the WTV case,

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including in the BarryDriller cases, in the range of 50,000

2

to $250,000, they've asked for a security bond of

3

$50 million, which is orders of magnitude beyond anything

4

that we're aware of in any remotely analogous context.
I would point out, for example, they say that in

5
6

the Napster case there was a requirement of a $5 million

7

bond.

One was -- it seemed like a long time ago,

8
9

Couple things to take into consideration there.

in 2000, when Judge Patel enjoined the Napster service, it

10

had more than 56 -- maybe 70 million users.

It had drawn

11

significant investments, millions and millions of dollars of

12

investments.

13

Ninth Circuit thought merited a stay pending appeal.

14

out they lost on all of them, but the Ninth Circuit stayed

15

them.

And it also had arguments that the
Turned

We think, in this case, the liability is

16
17

absolutely clear that the idea that somehow this is -- we

18

are interfering with or destabilizing a business that

19

without an injunction will be worth billions of dollars is a

20

pie in the sky and that the bond that's required here should

21

be in line with the cases that -- the cases that we've

22

discussed, the BarryDriller case, the Zediva case -- again,

23

in the range in the low six figures.

24

even to the Napster level of the type of risk that we're

25

talking about on the other side.

Doesn't come close

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THE COURT:

1
2

Thank you.

Let me just check.

One

moment here.

3

Why don't we take a ten-minute recess.

4

eyesight is correct, we'll resume at 12:20, and then I will

5

give you an opportunity to respond.

6

until 1:30, although I would hope that we don't go until

7

then, but I'll give you an opportunity to respond at that

8

time.

I don't have anything

We'll take a ten-minute recess.
MR. QUINTO:

9

If my

Thank you, Your Honor.

(Recess taken 12:12 to 12:24 P.M.)

10

THE COURT:

11

Mr. Quinto, before you begin, I just

12

want to ask Mr. Klaus one last question, at least for now,

13

just so it doesn't escape my memory.

14

When you talk about irreparable harm in that vein,

15

you talk about -- and the goodwill, sort of, with licensees.

16

Did -- I just want to make sure I didn't miss the needle in

17

the haystack of paper that's been filed.

18

Have licensees specifically complained?

Was there

19

any sort of declarations that talk about, you know, iTunes,

20

Amazon, saying, "Hey, what's going on here?

21

when so-and-so doesn't have to do that?"

22

like that?

23

make sure -- whether or not I missed that.

Why am I paying

Is there anything

If there is not, that's fine.

I just want to

24

MR. KLAUS:

There is not, Your Honor.

25

THE COURT:

There isn't.

Okay.

Thank you.

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All right.

2

I do and first I beg to differ with

say.

3
4

Mr. Quinto, I'm sure you have a lot to

MR. QUINTO:

1

that last response from opposing counsel.
There was a licensee who complained in December,

5
6

complained to the studios in December 2015, specifically

7

concerning VidAngel's aggressive marketing techniques.
So that is the record with respect to complaints

8
9
10

with respect to licensees, that there was a complaint in
December 2015.

11

THE COURT:

12

MR. QUINTO:

Okay.
At the time -- well, VidAngel

13

launched its service as a private beta test in January 2015.

14

As I disclosed in my letter to the studios in July 2015, the

15

number of users had grown by 10,000 percent from the end of

16

January to the end of June.

17

tremendously when VidAngel went public with its service.

And, of course, it took off

I would note that the studios, Disney in

18
19

particular, opened a VidAngel account on August 6th, 2015.

20

Disney was represented, in the Zediva case, by Mr. Klaus and

21

his colleagues at Munger, Tolles.
The privilege log that we were given reflects

22
23

that, in August 2015, there were a number of communications

24

between the studios and Mr. Klaus.

25

clearly taking this seriously as of August 2015.

So the studios were

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The -- I mentioned a moment ago the Zediva case --

1
2

that is very instructive, Your Honor.

There the defendant,

3

Zediva, had been offering 138 movies for streaming.

4

July 2015, when I sent my letter to the studios, VidAngel

5

was already offering 750 movies, far more.

In

In Zediva, the studios waited 18 days to file

6
7

suit, just 18 days.

8

submitted a declaration of counsel that took pains to

9

explain that 18-day delay -- took pains to explain why that

10

And when they did so, your Honor, they

18-day delay should not be viewed as unreasonable.

11

The point, obviously, is that, when the studios

12

believe there is a pirate, believe they're being injured,

13

they know how to act quickly.
Here, I'm afraid to say, that, we believe, that

14
15

something quite different is at issue.

We have, as the

16

Court knows, made a Regulation A Plus stock offering

17

approved by the SEC.

18

VidAngel announced late last spring that it

19

planned to have the Regulation A Plus stock offering.

20

was shortly after that that the studios chose to file suit.

21

And that was consistent with the conduct the studios have

22

always engaged in with respect to VidAngel trying to prevent

23

it from offering its service by whatever means possible,

24

including earlier objecting to Google, allowing the service

25

to be based on the Chromecast device, persuading Google that

It

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1

Google would violate its terms of service agreements with

2

the studios if VidAngel could use the Chromecast device to

3

filter.

4

pulled the rug out from VidAngel.

And at several other times, the studios had also

So we believe that the Complaint was filed for the

5
6

purpose of trying to disrupt the Regulation A Plus stock

7

offering.
In support of that theory, Your Honor, I would

8
9

note that the studios did not request a temporary

10

restraining order, notwithstanding the claim that they were

11

being irreparably injured.

12

immediate preliminary injunction.

13

the preliminary injunction hearing for late October.
Why?

14

They also did not seek an
Rather, they scheduled

We believe, Your Honor, that they wanted to

15

schedule the preliminary injunction hearing so late that the

16

pendency of the preliminary injunction application would be

17

a proverbial, sort of, Damocles hanging over VidAngel during

18

its Regulation A Plus stock offering.
I am happy to say that VidAngel has completed its

19
20

Regulation A Plus stock offering.

21

$10 million in just a few days, and, notwithstanding the

22

threat from the studios, VidAngel has succeeded with that

23

and is moving forward.
That I submit is the true rationale for the

24
25

It raised over

studios' delay in bringing the action.

And I also note

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1

that, of the six major motion picture studios, Sony,

2

Universal, and MGM, who were extensively copied on in e-mail

3

messages, indeed the studios exchanged over 1,300 or

4

approximately 1,300 privileged e-mail messages concerning

5

VidAngel before they filed suit, Sony, MGM, and Universal

6

chose not to be involved and have expressed interest in

7

working with VidAngel if VidAngel can overcome the problem

8

caused by the collective bargaining agreement with the DGA.
THE COURT:

9

That's all interesting, but how is

10

that relevant to the decision on whether there should be a

11

preliminary injunction -- whether or not these other

12

companies are in the plaintiffs' chair as well?
MR. QUINTO:

13

I think it runs to irreparable

14

injury, Your Honor.

You have got three companies, three

15

major motion picture studios that are saying, no, there is

16

no irreparable injury that VidAngel is causing.
THE COURT:

17

Is that fair to say?

Are you saying,

18

by virtue of them not willing to pay lawyers exorbitant

19

fees, that they are saying they agree that there is no

20

irreparable harm?
MR. QUINTO:

21

The studios have been --

22

historically, been very quick to act when they believed --

23

when they really believed they were being irreparably

24

harmed.
THE COURT:

25

But in fairness, Mr. Quinto -- let me

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just stop you.

You don't know per se -- or do you know that

2

the other studios have said, "No, we don't care what

3

VidAngel does?"

4

they're not in the plaintiffs' chair, that's one thing.

5

I -- it's another to say, "We know that they are not

6

interested in this."

I mean, it's one thing to speculate because

MR. QUINTO:

7

But

I do know that VidAngel has had

8

communications with them, and I do know that they have said

9

that they would be willing to work with VidAngel to allow a

10

filtered streaming service but for the problems posed by the

11

group boycott and the DGA agreement.

12

THE COURT:

13

Let's move on.

MR. QUINTO:

I would note that the cost to them to

14

join in the litigation would have been fairly de minimis

15

given that they could have used the --

16

THE COURT:

Why don't we --

17

MR. QUINTO:

18

So Your Honor had asked earlier about the most

-- same counsel.

19

common filters selected.

I now have that answer.

The most

20

common is female nudity.

Following that are filters for the

21

F-bomb and the C word.
I believe that the average -- I'm not positive,

22
23

but I believe that the average number of filters selected by

24

VidAngel users when watching a given movie is 17.

25

event, 96 percent -- 96 percent select more than one.

In any

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And the studios have suggested unfairly that

1
2

VidAngel is simply an inexpensive, a cheaper, alternative to

3

watching streamed content provided by a provider the studios

4

have agreed to license.
That is factually incorrect.

5

Here is why.

When a

6

motion picture is released, it goes through a standard cycle

7

by which the studios attempt to maximize the revenue that

8

they derive from that motion picture.

9

appropriate.

And that's perfectly

First, a new release is shown theatrically in

10
11

first run motion picture theaters.

That's frequently done

12

even if it's a dog because foreign distribution agreements

13

require an American theatrical release.
So first is the theatrical release.

14

Then there

15

might be a release to second run motion picture theaters.

16

After that, the studios typically release a collectors

17

edition DVD or Blu-ray that has lots of extra content.

18

has outtakes.

19

actors, et cetera.

20

they are very expensive, and VidAngel does not buy them.

It

It has interviews with the director, the
And although those are sold as DVDs,

After that, the studios will release a motion

21
22

picture for streaming.

And at that point, services that

23

have a streaming license can offer that picture to their

24

customers.

25

for reasons the Court knows well.

But VidAngel doesn't have a streaming license

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So VidAngel customers are not able to watch a

1
2

movie when it's released for streaming.
THE COURT:

3
4

They are able to watch it.

They're

just not able to watch it on VidAngel.
MR. QUINTO:

5

Okay.

Fair enough.

They're not able

6

to watch a filtered movie, meaning they cannot watch it on

7

VidAngel.

8

want.

They can watch the unfiltered version if they

That's out there.

9

But if they want to watch a filtered version, they

10

have to wait until the studios finally sell DVDs and Blu-ray

11

disks where VidAngel buys them at retail.
Then and only then can VidAngel stream the

12
13

filtered content, and then and only then can VidAngel

14

customers watch filtered content.
So VidAngel is not competing with the streaming

15
16

services.

They get to offer content first.

A VidAngel

17

customer has to wait until the studios release the movie in

18

DVD and Blu-ray.

19

Then after that, the studios will typically

20

release a movie for pay television, for the pay cable

21

stations, and finally it will be released for what used to

22

be known as over-the-air television but the stations that --

23

you don't pay for it.

24

VidAngel is required to wait its turn.
THE COURT:

25

So there is that entire cycle, and

You are saying that VidAngel doesn't

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1

jump in line ahead of the other streaming companies that

2

have a license with, in this case, Disney?
MR. QUINTO:

3

As an almost universal rule, yes,

4

that's correct.

The studios have pointed to two exceptions.

5

One occurred in early 2015 before VidAngel had written to

6

the studios, and the other evidently occurred for purposes

7

of creating a record for this litigation because it occurred

8

earlier this year.

9

And we know from the limited discovery we've had

10

that the studios knew the release date, had determined the

11

release date several months before they released the movie,

12

and they had decided that, in that instance, they would sell

13

streaming customers the right to buy, as they define "buy,"

14

streamed content, at the same time that they would sell DVDs

15

and Blu-ray disks but they would delay for several days

16

releasing the movies to be streamed.
So a streaming customer could buy the movie at the

17
18

same time that VidAngel was offering its service, but a

19

streaming customer who wanted to watch a streamed unfiltered

20

movie without buying it had to wait, I believe, four days

21

after VidAngel acquired the DVDs.

22

Now, had the -- had that caused -- had the studios

23

believed that would cause an irreparable harm, I submit that

24

they would have sent a cease and desist letter to VidAngel,

25

they would have reached out to VidAngel to warn it to wait

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four days, they would have done something if they had

2

believed that there would be an irreparable injury.

3

didn't.

4

for the Court.

They

I would submit they were simply creating a record

Apart from those two instances, the streaming

5
6

companies under their licenses get the right to stream well

7

before the studios sell the DVDs and Blu-ray disks that

8

VidAngel depends on to offer its services.
Now, the studios have also tried to

9
10

mischaracterize VidAngel's interest in getting a streaming

11

license as somehow an acknowledgment by VidAngel that its

12

service is not lawful.

13

truth.

14

lawful under the Family Movie Act, as I have explained.

VidAngel believes that its current service is fully

THE COURT:

15

Nothing could be further from the

Let me stop you there.

Can we shift

16

then -- you heard Mr. Klaus talk at length about you making

17

copies of these movies onto a server and that violates the

18

production rights that they have.

19

that?
MR. QUINTO:

20

Sure.

What's your response to

I would like to, if I may,

21

just walk the Court through the FMA, through the language of

22

the FMA, and I will explain it in that context.
THE COURT:

23

In the interest of time -- I have

24

given you a lot of time.

25

FMA.

I don't need a recitation of the

I just want some answers to my questions.

Just walk

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me through.

What's incorrect about that point?

Do those

2

movies, the movies that the purchaser buys, are they copied?

3

Are they put on a server?
It seems to me these are somewhat yes-or-no

4
5

answers, but I'm not as knowledgeable as you all as it

6

relates to the -- how these movies or DVDs end up onto the

7

servers that stream it.
MR. QUINTO:

8

So --

Sure.

Well, Your Honor, Section 110

9

Subsection 11 of the FMA provides that the following are not

10

infringements of copyright -- the making imperceptible by or

11

at the direction of a member of a private household of

12

limited portions of audio or video content of a motion

13

picture during a performance transmitted to that household

14

for private home viewing from an authorized copy of the

15

motion picture.
From an authorized copy, not necessarily the

16
17

customer's authorized copy.

18

THE COURT:

So your point is "an authorized copy"

19

means just any authorized copy?

20

MR. QUINTO:

Yes, but let me keep going.

The

21

statute then provides -- if no fixed copy of the altered

22

version of the motion picture is created by such computer

23

program or other technology.
So what the FMA prohibited was not making an

24
25

intermediate copy or any copy of the original work.

It

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prohibited making a fixed copy of the altered version.
And this, again, reflects that you cannot

2
3

filter -- or at least in 2005, you could not filter a movie

4

and then transmit it without making a copy.
THE COURT:

5

What's your response to the Title

6

17 -- USC Section 1201 says "No person shall circumvent a

7

technological measure that effectively controls access to a

8

work protected under this title"?
MR. QUINTO:

9
10

Well, I have several responses,

Your Honor.
First, as I noted earlier, under 17 USC 110

11
12

Subsection 11, a service that -- a company that provides the

13

service described therein is not engaging in an infringement

14

of copyright.

15

Section 110 says, "the following are not infringements of

16

copyright."

That's what the entry -- the first line of

So where there is no copyright infringement, where

17
18

there is no violation of copyright, the DMCA, by its own

19

terms, doesn't apply.

20

Copyrights, Mary Beth Peters, is absolutely consistent with

21

that.

The letter from the Register of

She said that no modification of the DMCA was

22
23

required, obviously, because no modification -- she

24

recommended that DMCA not be -- that there not be an express

25

exception for the DMCA for the obvious reason that no

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express exception was needed.

A service that operates as

2

provided by Section 110 Subsection 11 does not infringe

3

copyright.
Further, the Ninth Circuit opinion in the Blizzard

4
5

case that I discussed earlier further says that there is no

6

infringement so long as a copyright owner is engaging in an

7

abuse of copyright and further says that the DMCA might not

8

apply when the -- it's being used in -- as part of an

9

anti-trust violation.

10

So for all those reasons, opposing

counsel is wrong in his construction of the FMA.

11

Does that sufficiently answer --

12

THE COURT:

13

MR. QUINTO:

It answers it.
There was also discussion about

14

whether it is or was possible to provide streamed, filtered

15

content without decryption.
There is no debate that, in 2005, that ability did

16
17

not exist.

As explained in the Meldahl declaration, there

18

is still no such ability today.
Now, what counsel was referring to is the fact

19
20

that ClearPlay -- and, by the way, Your Honor was correct.

21

ClearPlay is the only other surviving filtering company.

22

There are no other filtering companies out there.
What counsel was referring to is that ClearPlay

23
24

uses a system based on the same basic idea that VidAngel had

25

in 2014 with the Chromecast, that it would ride on top of

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someone else's system, allow someone else to decrypt, and

2

then would filter that content.
In VidAngel's case, the studios contacted Google

3
4

and said, "That is a violation of your terms and service

5

agreement with us."

6

litigation with VidAngel is concluded, the studios will go

7

back to YouTube and say, "You're violating our terms and

8

service agreement.

And I submit that the moment the studio

You have got to cut ClearPlay off."

So ClearPlay, at a minimum, is operating in

9
10

violation of a terms of use agreement imposed by the

11

studios.
But more to the point -- and this is reflected in

12
13

the Supplemental Declaration we provided from

14

Elizabeth Ellis, the ClearPlay system at its best is

15

extremely limited and offers the consumer, when it works,

16

offers the consumer a really unsatisfactory experience.
It works only with a standard definition stream.

17
18

So it doesn't work at all with high def or Blu-ray, and it's

19

error ridden.

20

frequent mistakes in its application, and, of course, it

21

works only if a consumer is also purchasing or obtaining

22

content through YouTube.

It's difficult to sign up for.

There are

The Google Play plus YouTube combination that

23
24

ClearPlay relies on was created in 2012.

25

It did not exist

in 2005.

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So as a legal matter, we submit that ClearPlay has

2

no right to do what it's doing and is being tolerated by the

3

studios because it is not very successful.

4

not growing, and the studios wish to say that it's an

5

alternative to what we're doing.

Its business is

6

Now, if we go back to first principles, Congress,

7

obviously, wanted to make filtered content available to the

8

American public on a reasonable basis.

9

raised a number of arguments that, if accepted, would

The studios have

10

benefit the studios not at all and would serve only to make

11

a service such as VidAngel prohibitively expensive and could

12

potentially be the death knell of cloud computing.
Here is why:

13

The studios contend that -- I can

14

imagine if this were several hundred years ago, they would

15

say, "It's okay to make handwritten copies of the Bible but

16

you can't use Gutenberg's printing press because it's an

17

unapproved technology," that we would have to separately

18

filter every DVD, but we couldn't do it just once.

19

have to filter every one, which, you know, doing that for

20

every DVD for every customer would mean that the customer

21

would have to pay thousands of dollars to watch a filtered

22

movie.
THE COURT:

23
24

Explain that to me.

We would

Why would they

have to pay thousands of dollars?
MR. QUINTO:

25

Because the process that VidAngel

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goes through is very expensive.

You first decrypt what's on

2

the disk and convert it into a Matroska file, which is an

3

intermediate file that is incapable of being viewed.
From there it's put into a different form of

4
5

intermediate file and various taggers in different parts of

6

the country -- and VidAngel uses a number of taggers and

7

deliberately uses taggers in different parts of the country

8

because they have different sensitivities.

9

through the same movie, and they tag things that they

10

So they all go

believe might be objectionable.
So as I said earlier, there are 82 general tagging

11
12

categories, but with the subcategories there are many

13

hundreds.
So you have a number of people doing this.

14

You

15

have somebody who has to watch and review to make sure that

16

all the tags are correctly placed --

17

THE COURT:

That happens now; right?

18

MR. QUINTO:

Yes.

19

THE COURT:

Okay.

20

MR. QUINTO:

But that happens once -- right now

21

that happens once per movie.

22

saying is that it should happen once per disk, which is

23

crazy.
THE COURT:

24
25

And what the studios are

But doesn't the filtering -- but it's

interesting because every user or customer might have

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different filters; correct?

2

MR. QUINTO:

3

THE COURT:

Correct.
So you are saying that your client has

4

done it one time and so they are able to filter out any of

5

all of the different 82 options when they click on?
MR. QUINTO:

6

What they do is they tag everything

7

that might be objectionable -- and the tags fall into 82

8

broad categories and numerous subcategories.

9

that's done, the movie is chopped up into little tiny

10

Then after

bits --

11

THE COURT:

12

MR. QUINTO:

I understand your point.
A maximum length is ten seconds, but

13

many, many bits are shorter.

14

second, two seconds.

15

has been tagged or frequently contained something -THE COURT:

16

Might be half a second, a

And those bits contain something that

Let me ask you this, Mr. Quinto.

Do

17

you believe that the FMA contemplated streaming when it was

18

enacted?
MR. QUINTO:

19

Of course, on its face, the making

20

imperceptible by or at the direction of a member of a

21

private household -- so private household telling third

22

party do something -- make imperceptible at my direction

23

limited portions of audio/video content of a motion picture

24

during a performance transmitted to that household for

25

private home viewing, in other words, streaming.

So you

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filter it, and then you transmit it or streamed.

I think it

2

couldn't be clearer that that's what the FMA intended.
And part of the problem -- as a side note, part of

3
4

the problem with the legislative history is, as the Court

5

knows, every two years Congress ends and we get a new

6

Congress.

7

is out the door and legislation has to be reintroduced in

8

the following Congress.

When one Congress ends, everything that's pending

So there was a Family Movie Act of 2004 that was

9
10

pending when that Congress ended.

Significantly, the 2004

11

version was not identical to the 2005 version.

12

version contemplated only the service or device used in the

13

house to filter content there.

The 2004

So it was only with the 2005 version that the

14
15

streaming was added.

And that was done actually at

16

ClearPlay's request because it could see that that was the

17

future, that consumer preferences would change, that

18

consumers would want to be able to watch content

19

immediately.

20

buy a disk or order a disk to be delivered to them.

21

wouldn't want to have to insert it into a special DVD player

22

at home and be tied to watching it on family television.

23

They might want to watch it on their laptop.

24

want to watch it on their iPad, on their tablet.

25

want to watch it on their smartphone.

They wouldn't want to have to go to a store to
They

They might
They might

They would want to

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have such freedom.
And that is what this portion of the Family Movie

2
3

Act allows.

And it's what -- it's why this portion is so

4

important because this is the portion that American families

5

today want to use.

6

available to the American public now.

This is how you make filtered content

But having to do the whole process -- and let me

7
8

just finish with the process of preparing a movie -- so it's

9

then -THE COURT:

10
11

the process.

I think I understand the process.

MR. QUINTO:

12

Mr. Quinto, I don't need you to finish

Okay.

So counsel stated incorrectly

13

that VidAngel keeps a -- or stores a permanent copy of the

14

filtered work.

15

those little tiny bits up in the cloud and then, when a

16

consumer requests a movie with specific filters, VidAngel

17

sends the instructions concerning what bits to transmit to

18

the consumer.

Not true.

THE COURT:

19

All VidAngel does is put all

I think what Mr. Klaus was saying

20

what's stored is not the filtered content.

It's the

21

original content.

22

VidAngel copies it and takes that copy -- puts it on the

23

cloud, for lack of a better term, and the actual DVD or

24

Blu-ray disk is stored.

25

copy that remains that is used over and over -- that is the

So someone wants to watch "Star Wars,"

That's stored.

But there is this

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source by which the filtering -- the filtering mechanism

2

pulls its information from.

3

that the person purchased.
MR. QUINTO:

4

It's not from that original DVD

I think he was talking about two

5

things, Your Honor.

6

a copy stored on the cloud.
THE COURT:

7
8

Yes, there is a sense in which there is

And you believe that that is

authorized?

9

MR. QUINTO:

10

THE COURT:

11

MR. QUINTO:

Clearly.
Why?
Well, again, let's go back to the

12

statute.

13

a copy, even though, if you -- if a third party were somehow

14

to intercept and collect all those bits, the third party

15

would have no way to arrange them to reconstitute the movie.

16

It's sort of like saying a book that has gone through a

17

shredder is still a book.
THE COURT:

I'm talking about the unfiltered

movie?

20
21

Are you talking about the filtered

MR. QUINTO:

18
19

Even assuming all those encrypted bits constitute

movie.

I think Mr. Klaus was talking about two things.
So first let's talk about what's stored in bits.

22
23

What's stored in those little tiny bits in the cloud, which

24

are floating around and would not be -- are not a copy in

25

the sense that, if you were somehow to gain access to the

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cloud and intercept those bits, you could say, "Aah, I have

2

got the movie."
It would be analogous to saying the book went

3
4

through a shredder.

5

there is a sense in which I have the book.

6

But it's not -- the book wouldn't be readable.

7

not watchable, and those bits are encrypted.

In a sense, yes.
The movie is

But importantly, at this point nothing is altered.

8
9

I have got all the shredded papers; so

Everything is tagged, and things are broken up into little

10

tiny bits that reflect the tags, but it's still the original

11

work up there.
Now, the statute -- going back to the statute --

12
13

says that the service is lawful if no fixed copy of the

14

altered version of the motion picture is created.

15

doesn't prohibit the creation of making a copy of the

16

original.

17

of the altered version.

It

What's prohibited is making a copy, a fixed copy

And the doctrine of the inclusion of one to the

18
19

exclusion of the other applies here.

Congress has expressly

20

said, "It's not a problem.

21

the altered version."

22

to make a copy of the unaltered version.

It's a problem only if you make

So implicit in that is that it's fine

Now, the second copy that I think Mr. Klaus was

23
24

talking about is so now you have all these little encrypted

25

bits floating around in the cloud, and a consumer chooses a

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movie and selects the filters.
So if the consumer selects what I believe is the

2
3

average number of filters selected, 17, bits that don't

4

include anything falling within those 17 categories will be

5

transmitted to the consumer.
Now, the bits are stored by Google in the cloud,

6
7

and Google's default is to keep that arrangement of bits for

8

24 hours in case any other consumer decides to order, to

9

request the same movie with the exact same filters during

10

that 24-hour period.
But that is simply Google's default.

11

It's not

12

something -- it's not necessary for the service.

It's not

13

something that Google -- that VidAngel requests.

It's

14

entirely unnecessary to VidAngel's service and is not

15

something that VidAngel is responsible for.
Now, I talked about the effect that Mr. Klaus's

16
17

argument would have on cloud computing.

Apart from the fact

18

that it would prohibitively expensive to go through this

19

whole process with respect to every disk as opposed to every

20

movie and apart from the fact that it would totally

21

undermine congressional intent to make filtered content

22

readily available to American families if carried to its

23

logical conclusion, it would be the death of the cloud

24

because you would have enormous numbers, enormous quantities

25

of identical works stored there.

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So, for example, if instead of having one copy of

2

a movie broken up into hundreds and hundreds of little bits

3

you had, say, 2,500 copies of that movie broken up into

4

2,500 times as many little bits, one can readily see how

5

quickly storage space in the cloud would be exhausted.
So for this reason, the cloud computing companies

6
7

intervened in the Aereo case to call this to -- this problem

8

to the attention of the Supreme Court.
And they also have their own technological

9
10

measures to try to weed out duplicate copies so that they

11

are not keeping 2,500 copies of something when one copy

12

would suffice.
And, again, Mr. Klaus's argument is totally

13
14

divorced from prejudice, from harm, from irreparable injury.

15

Whatever the effect on the studios is from having a movie

16

decrypted and being made available to VidAngel's users, that

17

effect is identical whether it's one copy that's decrypted

18

or 2,500 copies that are decrypted.
The effect on the studios is no different.

19

This

20

is just a case of the dog in the manger, the dog who gets no

21

benefit from being in the manger, occupies the manger to

22

deny the animals that would benefit, to deny them of that

23

benefit.

24

Now, let me turn to irreparable injury.

It's

25

preliminarily -- I note that it's -- and has been for five

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years now -- well established that irreparable injury may

2

not be presumed but must be proved.

3

that.

Winter and Salinger say

Irreparable injury is discussed only in the

4
5

declaration of Mr. Cittadine.

Mr. Cittadine begins with the

6

proposition that VidAngel is your stereotypical pirate,

7

maybe even an archetype pirate.

8

proposition.

But he starts with that

VidAngel is a pirate.

From there he says, "Well, based on the studio's

9
10

experience with pirates, we can anticipate the following

11

harms."
Now, as I said, VidAngel began offering its

12
13

service over 22 months ago.

14

2015.

15

August 6th, 2015.

16

It went public in August of

since then.

The studios have had an account since
And VidAngel has had incredible growth

In fact, the two best months for month-over-month

17
18

growth were November and December of 2015.

Notwithstanding

19

the 22-month history, the studios have not identified any

20

actual injury.
All they have is Mr. Cittadine's declaration that,

21
22

based on his experience with pirates, this is what could be

23

expected.

24

pirate?

25

dollars to buy authorized copies of plaintiffs' works.

But -- so that raises the question is VidAngel a

I submit that pirates don't spend millions of
Or

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studios' works.

Here, as of today, VidAngel has spent just

2

shy of $1.7 million to buy authorized copies of DVDs.
THE COURT:

3

Mr. Quinto, how do you respond to

4

Disney's contention that you or your client has pleaded

5

financial hardship and would not be able to pay off any

6

final judgment?

7

suggest that that fact in and of itself might make an

8

injunction appropriate.

And they cite to a number of cases that

MR. QUINTO:

9

As follows, Your Honor.

First, the

10

damages calculation was based on the assumption that the

11

studios would, A, prove willful copyright infringement, not

12

ordinary copyright infringement, but willful; and, B, based

13

on the assumption that having proved willful copyright

14

infringement, the Court would choose to award the maximum

15

statutory damages per infringement.
So we have -- those are two assumptions that I

16
17

don't think should -- two assumptions that should be

18

weighed.
Beyond that, VidAngel's monthly revenues are now

19
20

in excess of $1 million.

We've just completed a

21

Regulation A Plus stock offering, as Your Honor knows, in

22

which we terminated it after we had raised a little over

23

$10 million.

24

of money to pay any kind of reasonable damages award, should

25

there be one.

So that's now in the bank.

So there is plenty

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But I notice that in other cases such as ReDigi,

1
2

preliminary injunction was denied.

3

Court held that, because the defendant had kept very

4

accurate records, damages could be calculated and,

5

therefore, there was no need, it would be inappropriate to

6

impose a preliminary injunction.
So for those reasons, Your Honor, I submit that

7
8

In another case, the

there is no irreparable injury here.
THE COURT:

9

All right.

Can you talk a little bit

10

about claim of fair use.

And I guess I would like to hear a

11

little about, sort of, the transformative prong.

12

position that, once they apply the filter, it's now changed

13

the movie?

Is it your

It strikes me that, filter or not, "Trolls" is

14
15

"Trolls," "Star Wars" is "Star Wars."

16

curse word or a scene but the movie, the heart of the movie,

17

doesn't change, does it?
MR. QUINTO:

18

It may not have a

Your Honor, I wish the studios agreed

19

with that proposition because, if they agreed with it, they

20

would surely sell us a streaming license.
Their basis for withholding a streaming license is

21
22

that the filtering alters the content of the movie,

23

significantly changes the director's vision.

24

really the same thing, there is no basis to withhold the

25

streaming license.

But if it's

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I think it's self-evident that the -- that what we

1
2

do is transformative.

3

held that taking a thumbnail photo is a transformative

4

use -- using a thumbnail photo or republishing a thumbnail

5

is a transformative use of a full photograph even though

6

it's of the exact same image because it has a different

7

purpose.

10

of VidAngel customers who say they would not watch certain
movies without filtering, just wouldn't watch it at all.
THE COURT:

11
12

It satisfies a different need.
And here we have 50 percent of -- over 50 percent

8
9

For example, the Ninth Circuit has

Is the filter of content or just

opening credits?
MR. QUINTO:

13

No, no, no.

It's content.

14

opening credits was never an issue.

15

complaining about the closing credits.

16

The

The studios were

there was a very good reason for that.

And as I explained,

17

And, again, going back to my letter of last July,

18

I told the studios that, if they had any problems with what

19

we were doing, we would be happy to work with them, modify

20

our service.
Consistent with that, when we read in their papers

21
22

filed with this Court that they thought that allowing

23

filtering of a closing credits was a way to game the system,

24

we changed that and now you may still -- if you want to

25

filter closing credits, you have to filter something else as

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well.

That is no longer sufficient.
Another thing they complained of was the

2
3

automatic -- that consumers could choose -- when they

4

purchased a movie, they could choose the automatic sellback

5

feature.
Studios complained about that.

6

We eliminated it.

7

So now it's up to the consumer to decide -- the consumer no

8

longer has that option to have that done automatically.

9

consumer has to affirmatively go back to VidAngel when he or

The

10

she is done with the movie and say, "Now I want to sell it

11

back" and -- surprise.

12

over 24 hours; so VidAngel's profits have increased.

13

thank you, studios.

The average sellback time is now
So

So this is clearly transformative because it opens

14
15

movies to a new audience.

16

audiences, such as parents who might be willing to watch the

17

movies themselves, it opens the movie up further because

18

those parents who are willing to watch the movie themselves

19

might not be willing to watch with their children.

20

THE COURT:

21

MR. QUINTO:

22

use.

And even with respect to existing

That makes it transformative?
Yes.

Of course.

It's a different

It's a purpose.
Now, remember, with the thumbnail images, nothing

23
24

was filtered, nothing was removed.

It's just that the

25

thumbnail served a different purpose than the full

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high-resolution photograph because it allowed consumers to

2

quickly look at photographs and decide which ones they may

3

want to acquire in the high definition version.
THE COURT:

4

Okay.

I got your point, Counsel.

I'm

5

going to just give you a few minutes to wrap up because I

6

want to hear from the moving party before we end this

7

proceeding.
MR. QUINTO:

8
9

Counsel has also suggested that what

VidAngel is doing is somehow attempting an end-run around

10

established rights of copyright, and they've envisioned

11

filtering services that can filter anything.
Well, that problem was discussed in Congress, and

12
13

it's reflected in the legislative history.

Congress

14

considered trying to limit the content that could be

15

filtered to things that families find offensive or things

16

that the American Medical Association, the American

17

Pediatric Society had found, had declared that in over

18

2,000, studies could cause injury to -- permanent injury to

19

children such as the repeated exposure to violence on screen

20

as a child had been demonstrated to lead to a "propensed"

21

likelihood of exhibiting violent conduct by some

22

individuals, as adults.
So they considered that, but then they considered

23
24

the First Amendment and said, "Well, under the

25

First Amendment, we cannot allow -- we cannot decide that

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certain things can be eliminated but not other things."

So

2

owing to the First Amendment, they said, "Well, people have

3

to be able to filter whatever they want."
Now, counsel raised the specter, incorrectly, that

4
5

perhaps somebody could decide that it had an objection to

6

one thing and just filter that one thing out of movies and

7

go into competition with the streaming services -- maybe

8

just arbitrarily filter out the closing credits or the

9

opening credits.

Nonsense.

Under the Family Movie Act, it's the individual

10
11

family owner, family member, who decides what gets filtered.

12

So the individual member of the family purchasing the

13

content has to decide what is filtered, not some competitor

14

choosing to filter only credits and compete.
Secondly, as a practical matter, that doesn't work

15
16

anyway because the movie goes through the whole release

17

cycle, and, if you are trying to operate under the Family

18

Movie Act, as counsel has suggested, then you have to wait

19

until the movie comes out on DVD and Blu-ray disk.
So if Warner Bros. wanted to compete with

20
21

Universal, Universal would be able to stream its movies for

22

as long as it wanted before it released those movies on DVD,

23

and Warner Bros. wouldn't be able to compete by offering

24

some kind of filtering service until Universal had finally

25

released the content on DVD.

So the specter that one studio

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would compete with another is stuff and nonsense.

2

THE COURT:

3

MR. QUINTO:

4

Anything further, Mr. Quinto?
No, Your Honor, but I would like to

reserve three minutes, if I may, to respond to -THE COURT:

5

You have had over an hour -- or close

6

to an hour, I should say.

7

But let me -- I just have a couple of questions of -- I'm

8

sorry.

9

have an afternoon criminal calendar; so I have to get to

10

I am not inclined to do that.

I'm drawing a blank on the name -- Mr. Klaus.

And I

that in a moment as well.
Mr. Klaus, the question I have for you is I

11
12

thought I heard Mr. Quinto -- and I may have misheard it --

13

saying that the VidAngel -- they have to wait in line just

14

like everyone else.

15

don't gain an advantage or jump on consumer's access to

16

movies?

What's your response to that?
MR. KLAUS:

17

What's your response to that, that they

That's not true.

They wait in line

18

until the DVD release date.

19

release, they then go into competition with other services

20

who may or may not have access to the content in that

21

window.
THE COURT:

22
23

Who would not have access to the

content during that window?
MR. KLAUS:

24
25

And the moment there is a DVD

During that window.

And there are

some distributors, whether they are streaming services,

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whether they are sometimes subscription services like

2

Netflix, for example -THE COURT:

3
4

the time line.

5

date.

I just want to make sure I understand

You are suggesting a DVD gets released on X

Netflix may not be authorized to stream on that date.

6

MR. KLAUS:

Correct.

7

THE COURT:

ITunes, if a DVD is released, iTunes

8

may or may not be authorized to release on that date?
MR. KLAUS:

9

There are a couple of important

10

concepts that Mr. Quinto jumbled together, and let's be sure

11

that we break them apart.
One is he talks about whether they are available

12
13

for access on a streaming service.

And a streaming

14

service -- let's take iTunes, for example -- may have two

15

different types of streams that it can offer.

16

where you buy the movie through iTunes.

17

price, 19.99 to buy, than you would for the one-night

18

rental.

One is the --

You pay a higher

That's the essence of the window.
And depending on the particular company's

19
20

relationship with a particular service -- and it varies

21

because this is the subject of commercial negotiations

22

between copyright owners and services.

23

the ability to have the purchase where it's in your

24

permanent iTunes collection.

25

rent on a nightly or daily basis.

A service may get

It may have the ability to
They may get them on the

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same date.

They may get them on different dates.

2

Those are

two different points.
The DVD release date, however, once that is --

3
4

and, again, each studio makes its own decision about how it

5

wants -- how and when it will release its content.
The DVD release date may be the same date that you

6
7

have content that's available for purchase.

The DVD release

8

date may be the same date that you have content available

9

for a single day rental.

It really does depend.

But this idea that somehow they -- what Mr. Quinto

10
11

is saying is, "We're not in competition with those services

12

because we have to wait in line for the DVD," is just not

13

true.

14

movie for a day or a five-day or a week period, that may in

15

some cases be true, may not be true.

Whether he may be in competition on a particular

What is clear is that VidAngel views itself as

16
17

being in competition with these other services.

18

would -- if Mr. Quinto's statement is the Netflixes, the

19

other streaming services of the world, they serve a

20

different market that we don't care about.

21

an entire section that you can filter their movies for

22

things that are not available on Netflix if they don't view

23

themselves as being in competition with something that's

24

available on Netflix?
THE COURT:

25

Why else

Why do they have

Isn't the answer to that "We have

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these movies, but we have them in a format so that those

2

that might be offended by strong language, nudity, violence,

3

you can watch them through our service"?
MR. KLAUS:

4

Well, so -- but they -- my point to

5

you, Your Honor, is they are making them available for a

6

significantly lower price than they're available on the

7

other services.

8

them available for the price.

9

to this, Your Honor.

10

They are promoting the fact that they make
And users are not oblivious

And I just point to you to a couple of

examples of what we pointed out in our papers.
THE COURT:

11

Go ahead, briefly.

I remember reading

12

about the users saying, "Hey, I can get this quicker,

13

easier."
MR. KLAUS:

14

Yeah.

"We bought 'Star Wars'" -- I am

15

just reading from page 9 of our opening brief.

"We bought

16

'Star Wars.'

17

was, like, $5.00 to rent on Amazon.

18

the content cleaned, it's a great video service."

We sold it back for a total of $1.00 when it
Even if you don't need

19

Same comments to that effect on page 17.

20

THE COURT:

I am going to jump around for a

21

minute.

What's your response to -- what's the purpose of

22

the Family Movie Act?

23

a reason, to allow those individuals to watch content --

24

watch feature films, what have you, in a manner that is not

25

objectionable to that individual family.

The Family Movie Act was enacted for

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MR. KLAUS:

1

Subject to the requirements of the

2

statute, Your Honor, subject to the requirements of the

3

statute.
And the best evidence again of what Congress

4
5

ultimately intended, setting aside all the -- I have got one

6

version in 2004 and another version that the Congress in

7

2005 -- focusing on the language of the statute,

8

Your Honor -- what the language of the statute says is that

9

it has to be from an authorized copy.
When Mr. Quinto was going through his argument

10
11

about why it was clear that Congress intended for there be

12

streaming, he very noticeably stopped right before the

13

critical language that the transmission that is subject to

14

the exemption that the Family Movie Act creates has to be

15

from an authorized copy.
THE COURT:

16

Right.

But he says -- we've kind of

17

gone over this before.

18

I, customer, buy a DVD, and so I am -- VidAngel is giving

19

the customer that authorized copy.
MR. KLAUS:

20

He says it is an authorized copy.

But then, as I think Mr. Quinto

21

ultimately conceded when he said, in a sense, there is a

22

copy in the cloud, the copy in the cloud is a different

23

copy.

24

indulging in the fiction that the consumer owns the DVD,

25

even though only four people have ever requested to get

It is not the copy that the consumer -- even

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their DVD back and 99 1/2 percent have returned them as the

2

rental that Mr. Quinto described earlier today within the

3

five-hour period, even indulging that fiction, the copy from

4

which the movie is streamed, from which it is transmitted,

5

is the copy that they have made to the cloud.
They do apply filters to it, but it's still not an

6
7

authorized copy.

And, again, Your Honor beyond the language

8

of the statute, this is another area where the legislative

9

history actually did discuss this issue.
It's again in Senator Hatch's statement which is

10
11

at Tab 5 of my binder.

Senator Hatch said -- this is the

12

only -- by the way, the only legislative history that's in

13

the record that speaks to the question of transmission and

14

performance.
(Reading:)

15

An infringing

16

performance in a household or an infringing

17

transmission of a performance to a household,

18

those are not rendered non-infringing by

19

Section 110(11) by virtue of the fact that

20

limited portions of audio or video content to

21

the motion picture being performed are made

22

imperceptible during such performance or

23

transmission in a manner consistent with that

24

section.

25

The only legislative history, absolutely, the only

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one that speaks to this transmission issue is that

2

statement.

3

it is clear that what they are doing is plainly a

4

violation -- the only legislative history that's on point

5

specifically says that the argument that they are making is

6

wrong.
THE COURT:

7
8

So if the statute wasn't clear -- and we believe

All right.

Anything further,

Mr. Klaus?
MR. KLAUS:

9

One brief point, Your Honor, because

10

Mr. Quinto was very liberally saying that the plaintiffs in

11

this case had gone to Google and had directed Google not --

12

to shut off support, to stop the Chromecast filtering,

13

et cetera.

14

round with Mr. Harmon at his deposition on this to ask him

15

what the specific evidence was that he had.

We went round and round -- I went round and

16

We put this -- it's in -- Tab 15 of our binder are

17

all of the excerpts from Mr. Harmon's deposition transcript.

18

Between pages 273 and 277 are the pages in question, and I

19

said to Mr. Harmon -(Reading:)

20

Tell me every fact you

21

have to believe that one of the plaintiffs in

22

this case went to Google and said to Google,

23

"cut off service, cut off support for them.""

24

And Mr. and Mr. Harmon said, "Well,

25

I have seen things that I got from WikiLeaks"

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that suggest there are provisions and

2

contracts.
He says, "I am suspicious about the

3
4

timing."

5

And on page 277, I said to him -- and I am reading

6

277 of the deposition transcript.

7

Exhibit M from Miss Bennett's Reply Declaration.
(Reading:)

8

This was page 70 of

I want to be very

precise here, Mr. Harmon.

9

Do you believe that

10

a studio -- or multiple studios went to Google

11

and specifically said "Do not provide support

12

to VidAngel"?
ANSWER:

13

I don't have that

14

information, but that's what we believe based

15

on the facts that we have.

16

So I say that, Your Honor, when Mr. Quinto stands

17

here and says that we have constantly gone to other services

18

and told them not to do business with VidAngel, he has in

19

fact no evidence to support that.

20

that he's put in for the benefit of the hearing.

That's simply conjecture

21

THE COURT:

22

Mr. Quinto, do you have something urgent that you

23

need to bring to the Court's attention?
MR. QUINTO:

24
25

Thank you, Mr. Klaus.

I will limit myself to 30 seconds.

The Court may strictly --

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THE COURT:

1
2

here.

I wish I had my civil trial clock

I would put you to that, but go ahead.

3

MR. QUINTO:

Thank you, Your Honor.

4

First, if the studios were really concerned that

5

VidAngel, by relying on the Family Movie Act, can charge

6

consumers $1.00, they would license VidAngel to stream.

7

they did that, VidAngel would not only be happy to but would

8

be required to, by economics, charge as much as anybody

9

else.

If

Second, Mr. Klaus was incorrect about the number

10
11

of DVDs permanently owned.

12

are permanently owned that have no sellback value, and

13

that's over 20,000.

14

THE COURT:

15

It's 12 percent of all DVDs that

movies to come back?

16

MR. QUINTO:

17

THE COURT:

Twelve percent of people ask for the

Twelve percent of all DVDs -But he was talking about how many

18

people asked to have the movies sent back to them.

19

I think

that was four percent.

20

MR. KLAUS:

That was four disks total, Your Honor.

21

THE COURT:

Sorry.

22

MR. KLAUS:

And, again, I will say there is no

23

evidence in the record to support the 12 1/2 percent

24

statement that Mr. Quinto is now -THE COURT:

25

I am more concerned -- I think his

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point was how many people said, "Give me the DVD back"?
MR. QUINTO:

2

Somewhere around four, six, somewhere

3

in that vicinity.

But, of course, the DVD is unfiltered.

4

They have the right and VidAngel will mail it to them.

5

it's a true sale, not a rental.

So

But more to the point, people who want to watch

6
7

filtered content have kept over 20,000 DVDs that now have no

8

sellback value.

9

THE COURT:

10

MR. QUINTO:

Okay.
Final point, Your Honor.

The comment

11

that an infringing performance is not rendered acceptable

12

because it was decrypted and was transmitted under the --

13

filtered and transmitted under the Family Movie Act is

14

perfectly logical.

15

It means that, if somebody unlawfully obtains a

16

DVD, then it cannot be decrypted and filtered and thereby

17

gain the protection of the Family Movie Act.

18

means.
THE COURT:

19

All right.

That's what it

Thank you, both counsel.

20

I appreciate the robust arguments on both sides of this.

I

21

am going to take a little time to review some of my notes as

22

well as some of the evidence in the case, and the matter

23

will remain under submission until the Court issues its

24

final order.

25

So until then, thank you.

I am certain I will see you on December 19th.

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MR. KLAUS:

2

MR. QUINTO:

3

THE CLERK:

Thank you, Your Honor.
Thank you.
All rise.

This Court is in recess.

(Proceedings concluded at 1:41 p.m.)

4

--oOo--

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CERTIFICATE

2
3

I hereby certify that pursuant to Section 753,

4

Title 28, United States Code, the foregoing is a true and

5

correct transcript of the stenographically reported

6

proceedings held in the above-entitled matter and that the

7

transcript page format is in conformance with the

8

regulations of the Judicial Conference of the United States.

9
10

Date:

December 13, 2016.

11
12
13
14

/S/ CHIA MEI JUI _______

15

Chia Mei Jui, CSR No. 3287

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ER197

MR. KLAUS: [48] 3/7 10/4 14/25 16/4
26/24 28/7 28/15 30/1 30/3 30/9 31/22
32/1 32/3 32/5 33/2 33/21 34/14 35/20
36/2 38/3 38/6 39/14 41/11 50/7 51/14
52/3 52/9 52/21 52/25 53/12 53/20
60/16 60/22 61/17 61/22 63/23 93/16
93/23 94/5 94/8 96/3 96/13 96/25
97/19 99/8 101/19 101/21 102/25
MR. QUINTO: [73] 3/11 3/17 4/6 4/10
4/15 4/20 5/6 5/18 6/2 6/8 6/15 7/6
7/11 7/25 8/5 8/8 8/20 9/17 11/17
11/23 12/6 12/23 13/7 13/10 13/24
14/1 14/15 15/7 16/15 17/3 17/23
20/19 61/3 61/14 63/8 64/2 64/11
67/12 67/20 68/6 68/12 68/16 70/4
71/2 72/19 73/7 73/19 74/8 75/12
77/24 78/17 78/19 79/1 79/5 79/11
79/18 81/11 82/3 82/8 82/10 82/19
87/8 88/17 89/12 90/20 91/7 93/2
100/23 101/2 101/15 102/1 102/9
103/1
THE CLERK: [2] 3/3 103/2
THE COURT: [118]

$
$1 [1] 87/20
$1 million [1] 87/20
$1.00 [2] 96/16 101/6
$1.7 [1] 87/2
$1.7 million [1] 87/2
$10 [2] 66/21 87/23
$10 million [2] 66/21 87/23
$11.85 [1] 38/12
$11.85 million [1] 38/12
$18.00 [1] 6/1
$19.00 [4] 5/15 5/18 5/24 6/12
$2.00 [1] 5/22
$2.2 [1] 60/4
$2.2 million [1] 60/4
$2.4 [1] 60/1
$2.4 million [1] 60/1
$20.00 [5] 4/5 5/10 5/13 7/8 28/24
$250,000 [1] 62/2
$5 [1] 62/6
$5 million [1] 62/6
$5.00 [1] 96/17
$50 [1] 62/3
$50 million [1] 62/3

'
'Star [3] 4/4 96/14 96/16
'Star Wars' [1] 96/14
'Star Wars,' [1] 4/4
'Star Wars.' [1] 96/16

--oOo [1] 103/5

/
/S [1] 104/14

1
1,000 [1] 29/13
1,300 [2] 67/3 67/4
10 [1] 50/20
10,000 percent [1] 64/15
106 [4] 17/8 32/13 44/3 46/14
107 [2] 24/3 46/12
10:35 [2] 1/18 3/2

ER198

11 [8] 17/6 17/19 32/12 44/13 73/9
74/12 75/2 98/19
110 [12] 17/6 17/19 32/8 32/9 44/2
44/13 46/12 73/8 74/11 74/15 75/2
98/19
111 [1] 45/23
12 [1] 23/18
12 1/2 [1] 101/23
12 percent [1] 101/11
1201 [19] 14/3 15/17 16/6 16/8 16/9
17/17 17/22 23/7 24/4 24/11 32/14
41/9 41/13 41/15 43/24 44/11 44/18
45/6 74/6
12:00 [1] 61/12
12:12 [1] 63/10
12:20 [1] 63/4
12:24 [1] 63/10
13 [2] 58/18 104/10
138 [1] 65/3
14 [2] 1/17 3/1
15 [2] 57/12 99/16
16-04109-AB [1] 1/9
16-4109-AB [1] 3/4
1633 [1] 2/13
16TH [1] 2/17
17 [12] 15/11 15/17 17/6 17/22 32/8
46/12 68/24 74/6 74/11 84/3 84/4
96/19
1777 [1] 2/13
18 [2] 65/6 65/7
18-day [2] 65/9 65/10
181-C [1] 1/24
19 [1] 23/15
19.99 [1] 94/17
19th [1] 102/24
1:30 [1] 63/6
1:41 [1] 103/4

2
2 1/2 [2] 9/20 54/1
2,000 [7] 7/17 7/17 7/23 7/23 7/24 29/5
91/18
2,500 [6] 7/14 7/15 85/3 85/4 85/11
85/18
20 percent [1] 58/25
20,000 [6] 6/4 10/18 56/17 56/18
101/13 102/7
2000 [1] 62/9
2004 [5] 27/8 80/9 80/10 80/11 97/6
2005 [9] 4/17 9/10 27/9 74/3 75/16
76/25 80/11 80/14 97/7
2012 [1] 76/24
2014 [1] 75/25
2015 [15] 36/5 58/9 58/19 64/6 64/10
64/13 64/14 64/19 64/23 64/25 65/4
71/5 86/14 86/15 86/18
2016 [4] 1/17 3/1 36/5 104/10
2029 [1] 2/16
213 [2] 2/6 2/13
22 [1] 86/13
22-month [1] 86/19
24 [3] 5/23 84/8 90/12
24-hour [1] 84/10
255 [1] 1/24
269 [1] 44/9
273 [1] 99/18
277 [3] 99/18 100/5 100/6
27TH [1] 2/9
28 [1] 104/4
294 [1] 45/23

3
3,000 [1] 7/19
30 [1] 100/24
3007 [1] 2/12
321 [1] 43/16
322 [1] 45/24
3287 [2] 1/23 104/15
355 [1] 2/4
35TH [1] 2/5

4
4017 [1] 2/10
415 [1] 2/10
424 [1] 2/18

5
5,000 [1] 37/8
5.99 [1] 56/1
50 [1] 89/8
50 percent [1] 89/8
50,000 [1] 62/1
500 [4] 7/18 7/20 29/4 29/13
512-4017 [1] 2/10
56 [1] 62/10
560 [1] 2/8

6
604-1777 [1] 2/13
652-7800 [1] 2/18
683-9132 [1] 2/6

7
70 [1] 100/6
70 million [1] 62/10
750 [1] 65/5
753 [1] 104/3
7800 [1] 2/18
79 [2] 37/13 38/10

8
82 [5] 12/1 12/10 78/11 79/5 79/7

9
90 [1] 53/25
90012 [1] 1/24
90067 [1] 2/17
90071 [1] 2/5
90210-1633 [1] 2/13
9132 [1] 2/6
941 [1] 22/8
94105 [1] 2/9
951 [2] 18/24 22/24
96 [2] 68/25 68/25
96 percent [3] 8/11 8/13 11/15
97,322 [1] 53/24
99 1/2 [2] 57/3 98/1

A
A.M [2] 1/18 3/2
AACS [1] 43/9
Aah [1] 83/1
ab [3] 1/9 3/4 25/9
ab initio [1] 25/9
ability [5] 20/5 75/16 75/18 94/23 94/24
able [18] 7/11 13/21 38/15 38/20 47/1
49/11 56/13 60/25 70/1 70/3 70/4 70/5
79/4 80/18 87/5 92/3 92/21 92/23
about [59] 3/23 8/16 8/22 9/19 20/19
26/21 26/25 27/1 28/18 31/11 31/11
31/12 34/4 35/21 35/24 37/25 40/16

A
about... [42] 40/22 42/3 44/5 44/15
45/17 49/6 49/12 51/11 56/17 56/20
58/7 58/22 59/17 59/18 61/21 62/25
63/14 63/15 63/19 68/18 72/16 73/1
75/13 82/4 82/18 82/20 82/21 82/22
83/24 84/16 88/10 88/11 89/15 90/6
94/12 95/4 95/20 96/12 97/11 100/3
101/10 101/17
above [1] 104/6
above-entitled [1] 104/6
absent [4] 18/19 19/6 23/24 25/21
absolutely [8] 27/6 27/24 27/25 31/4
52/10 62/17 74/20 98/25
abuse [1] 75/7
acceptable [1] 102/11
accepted [1] 77/9
access [15] 14/10 41/20 41/23 42/16
42/20 42/22 43/2 43/8 43/10 74/7
82/25 93/15 93/20 93/22 94/13
accidental [1] 45/12
Accolade [1] 49/19
accommodate [1] 9/12
accomplish [1] 26/5
accomplished [4] 25/23 26/6 27/6 28/9
accordance [1] 17/5
according [1] 19/14
Accordingly [1] 24/8
account [2] 64/19 86/14
accounting [1] 4/24
accrue [1] 38/14
accurate [1] 88/4
achieve [1] 59/4
acknowledged [1] 18/23
acknowledgment [1] 72/11
acquire [2] 59/5 91/3
acquired [1] 71/21
acquisition [1] 30/18
act [43] 13/7 15/12 16/18 16/20 16/25
17/2 17/3 17/4 18/6 19/8 19/17 20/14
24/3 25/3 25/9 31/8 31/10 31/24 32/11
42/4 44/1 44/17 47/3 48/4 48/25 49/1
49/5 50/9 54/22 55/12 65/13 67/22
72/14 80/9 81/3 92/10 92/18 96/22
96/22 97/14 101/5 102/13 102/17
action [7] 14/5 18/18 20/17 20/21
21/13 23/24 66/25
actionable [3] 18/19 19/1 19/7
actors [1] 69/19
acts [2] 9/5 43/21
actual [7] 16/7 32/17 35/4 38/16 44/23
81/23 86/20
actually [11] 27/12 34/16 36/22 44/15
45/4 45/10 50/15 56/9 56/14 80/15
98/9
add [7] 20/13 25/24 37/12 37/14 37/17
38/14 61/17
added [3] 45/7 47/11 80/15
addressed [2] 22/24 36/15
addresses [2] 22/8 22/9
adds [1] 8/11
adequacy [1] 41/8
adequate [1] 38/9
admit [2] 42/11 42/11
adults [1] 91/22
advantage [2] 59/10 93/15
advantages [1] 59/11
advertise [1] 55/5
advertised [1] 57/13
advertising [3] 39/7 51/18 60/2

ER199

advocate [1] 33/13
Aereo [1] 85/7
affirmative [3] 22/10 24/10 34/21
affirmatively [1] 90/9
afraid [1] 65/14
after [7] 65/20 69/16 69/21 70/19 71/21
79/8 87/22
afternoon [1] 93/9
again [17] 6/14 6/23 29/21 37/2 48/24
54/2 59/20 62/22 74/2 82/11 85/13
89/17 95/4 97/4 98/7 98/10 101/22
against [2] 27/24 43/16
agency [1] 39/8
aggressive [1] 64/7
ago [4] 62/8 65/1 77/14 86/13
agree [1] 67/19
agreed [3] 69/4 88/18 88/19
agreement [5] 67/8 68/11 76/5 76/8
76/10
agreements [2] 66/1 69/12
ahead [7] 15/7 32/16 35/12 36/19 71/1
96/11 101/2
air [2] 31/13 70/22
airplane [2] 52/11 52/11
al [1] 3/5
all [62] 3/21 3/22 4/25 6/17 8/11 11/24
12/15 15/6 16/12 16/20 17/9 18/1 18/1
18/22 18/25 19/20 20/19 20/23 21/12
23/16 26/2 26/11 27/4 29/13 29/20
30/23 32/5 35/18 36/17 36/18 38/7
43/11 56/9 57/4 57/21 61/11 62/14
64/1 67/9 73/5 75/9 76/18 77/10 78/8
78/16 79/5 81/14 81/14 82/12 82/14
83/4 83/24 86/21 88/9 89/10 97/5 99/7
99/17 101/11 101/16 102/19 103/3
allegations [1] 34/23
alleged [1] 34/20
alleging [1] 22/19
allies [2] 18/3 18/7
allow [6] 49/24 61/8 68/9 76/1 91/25
96/23
allowed [4] 5/9 54/14 54/15 91/1
allowing [5] 26/7 26/7 61/5 65/24 89/22
allows [1] 81/3
ALLYSON [2] 2/4 3/10
almost [2] 5/20 71/3
alone [2] 37/5 39/16
already [1] 65/5
also [20] 3/15 3/15 4/12 9/15 10/22
39/16 40/13 41/2 43/17 49/6 58/1
62/12 66/3 66/11 66/25 72/9 75/13
76/21 85/9 91/8
altered [6] 73/21 74/1 83/8 83/14 83/17
83/21
alternative [3] 56/5 69/2 77/5
alternatives [2] 60/12 60/15
alters [1] 88/22
although [4] 12/10 60/19 63/6 69/19
always [3] 6/24 59/7 65/22
am [29] 3/9 8/3 14/1 14/13 14/19 14/24
15/2 29/6 29/16 35/12 35/22 37/24
50/5 51/24 53/17 60/17 61/7 61/20
63/20 66/19 93/6 96/14 96/20 97/18
100/3 100/5 101/25 102/21 102/24
Amazon [3] 38/24 63/20 96/17
Amazon.com [1] 50/20
amended [1] 34/21
Amendment [3] 91/24 91/25 92/2
American [11] 18/10 18/17 19/10 26/7
69/13 77/8 81/4 81/6 84/22 91/16

91/16
among [2] 11/25 22/8
amount [4] 53/5 53/8 53/19 60/1
analogous [2] 62/4 83/3
analogy [1] 6/17
and/or [1] 32/23
ANDRÉ [1] 1/3
ANGELES [5] 1/19 1/24 2/5 2/17 3/1
Anglo [1] 18/17
animals [1] 85/22
announced [1] 65/18
another [17] 6/14 6/16 7/24 21/19
27/20 30/11 34/18 54/20 55/1 55/3
60/16 68/5 88/2 90/2 93/1 97/6 98/8
answer [10] 24/21 26/4 31/4 34/8 35/23
42/11 68/19 75/11 95/25 100/13
answering [2] 10/24 26/15
answers [3] 72/25 73/5 75/12
anti [11] 17/21 23/1 23/3 23/10 23/11
23/13 23/13 23/16 34/23 48/13 75/9
anti-circumvention [4] 17/21 23/10
23/13 48/13
anti-competitive [1] 23/3
anti-trust [6] 23/1 23/11 23/13 23/16
34/23 75/9
anticipate [1] 86/10
any [33] 16/22 16/23 17/4 17/6 17/7
17/21 19/6 19/6 19/25 20/21 21/14
25/15 27/24 35/6 41/2 41/5 41/10
43/12 44/21 55/5 55/21 61/18 62/4
63/19 68/24 73/19 73/25 79/4 84/8
86/19 87/5 87/24 89/18
anybody [1] 101/8
anything [10] 45/16 49/6 61/17 62/3
63/5 63/21 84/4 91/11 93/2 99/7
anyway [3] 9/2 19/15 92/16
anywhere [2] 44/21 61/11
apart [5] 60/22 72/5 84/17 84/20 94/11
appeal [1] 62/13
appear [1] 9/7
appearances [2] 2/1 3/7
appears [2] 30/24 30/25
Apple's [1] 38/24
application [3] 42/18 66/16 76/20
applied [2] 53/22 53/24
applies [1] 83/19
apply [7] 14/12 22/22 44/17 74/19 75/8
88/12 98/6
appreciate [4] 26/14 37/23 52/25
102/20
approach [1] 31/25
approached [1] 35/18
appropriate [4] 14/25 39/2 69/9 87/8
approved [1] 65/17
approximately [1] 67/4
arbitrarily [1] 92/8
Arc [2] 37/3 37/20
archetype [1] 86/7
are [157]
area [2] 45/18 98/8
aren't [2] 28/12 61/11
argue [1] 13/18
argued [1] 23/7
argument [14] 10/22 13/13 13/24 24/13
35/16 42/2 43/15 43/18 57/19 61/6
84/17 85/13 97/10 99/5
arguments [10] 11/7 20/23 20/24 20/24
27/2 41/13 46/6 62/12 77/9 102/20
arms [1] 14/20
around [9] 45/23 55/13 58/25 60/1

A
around... [5] 82/24 83/25 91/9 96/20
102/2
arrange [1] 82/15
arrangement [1] 84/7
art [1] 49/20
as [96] 7/8 7/8 8/10 9/13 12/18 13/14
15/15 16/24 18/16 19/25 20/10 21/4
22/9 22/18 22/22 22/24 23/17 24/10
24/18 25/22 26/6 26/12 27/23 34/13
37/9 37/22 38/14 39/17 39/23 40/6
40/11 41/24 44/24 48/18 48/18 48/25
49/2 49/18 50/9 54/24 55/5 59/5 59/5
60/11 60/11 64/13 64/14 64/25 65/10
65/15 67/12 69/19 70/22 71/3 71/13
72/11 72/14 73/5 73/5 73/5 74/11 75/1
75/6 75/8 75/17 77/1 77/11 78/11 80/3
80/4 84/19 85/4 86/12 87/1 87/9 87/21
88/1 89/15 89/25 90/16 91/19 91/20
91/22 92/15 92/18 92/22 92/22 93/10
95/16 95/23 97/20 98/1 101/8 101/8
102/21 102/22
aside [2] 15/15 97/5
ask [11] 4/2 9/19 13/11 29/23 45/19
50/24 53/9 63/12 79/16 99/14 101/14
asked [7] 20/20 44/5 45/6 45/13 62/2
68/18 101/18
asking [1] 35/22
asserted [1] 22/10
Association [1] 91/16
assume [5] 6/1 10/1 10/2 10/9 33/16
assuming [2] 7/5 82/12
assumption [2] 87/10 87/13
assumptions [2] 87/16 87/17
assure [1] 11/3
attached [1] 39/24
attempt [3] 10/21 19/19 69/7
attempting [2] 23/9 91/9
attention [2] 85/8 100/23
ATTORNEY [8] 2/3 2/4 2/7 2/8 2/12
2/15 2/15 2/16
audience [3] 41/5 50/12 90/15
audiences [1] 90/16
audio [3] 73/12 79/23 98/20
audio/video [1] 79/23
audit [1] 4/25
August [5] 64/19 64/23 64/25 86/13
86/15
August 2015 [2] 64/23 64/25
August 6th, 2015 [2] 64/19 86/15
authoritative [1] 45/21
authority [3] 42/10 42/19 48/6
authorization [3] 33/9 33/11 41/2
authorized [32] 13/20 20/3 30/14 31/2
32/24 33/1 33/2 33/3 33/12 33/17
33/21 33/23 34/9 34/9 34/11 40/1
50/11 73/14 73/16 73/17 73/18 73/19
82/8 86/25 87/2 94/5 94/8 97/9 97/15
97/17 97/19 98/7
automatic [2] 90/3 90/4
automatically [1] 90/8
availability [1] 59/10
available [15] 7/25 9/24 39/5 77/7 81/6
84/22 85/16 94/12 95/7 95/8 95/22
95/24 96/5 96/6 96/8
AVENUE [1] 2/4
average [6] 12/8 53/11 68/22 68/23
84/3 90/11
avoid [1] 42/9
award [3] 38/16 87/14 87/24

ER200

aware [2] 60/17 62/4
awareness [1] 31/12
away [3] 21/9 36/6 56/2

B
back [39] 4/9 5/15 5/17 5/23 6/5 6/12
6/15 6/23 7/10 7/24 8/17 10/15 24/13
28/14 28/16 33/5 37/23 39/9 41/8
41/12 45/8 49/14 53/17 56/7 57/6
57/16 58/8 76/7 77/6 82/11 83/12
89/17 90/9 90/11 96/16 98/1 101/15
101/18 102/1
back-and-forth [1] 8/17
background [1] 12/21
BAKER [3] 2/14 2/15 3/14
balance [4] 35/13 47/9 47/10 57/20
balancing [1] 59/15
bank [1] 87/23
Bar [1] 6/18
barcode [2] 4/24 29/16
barcoded [1] 4/22
bargain [3] 19/18 31/12 44/19
bargaining [1] 67/8
BarryDriller [2] 62/1 62/22
BarryDriller.com [1] 39/17
base [2] 35/8 59/11
based [10] 30/24 39/20 58/25 65/25
75/24 86/9 86/22 87/10 87/12 100/14
basic [1] 75/24
basically [1] 26/22
basis [5] 37/5 77/8 88/21 88/24 94/25
be [148]
became [5] 18/3 18/9 20/14 20/16
29/22
because [53] 7/23 8/16 8/22 13/13
13/19 16/2 16/22 19/23 20/4 21/9 23/3
25/9 26/21 31/15 34/17 35/22 36/6
37/19 42/1 43/3 43/5 43/11 43/19
45/13 49/10 54/8 55/9 59/3 59/20 68/3
69/12 71/7 74/23 77/3 77/16 77/25
78/8 78/25 80/16 81/4 84/24 88/3
88/19 89/6 90/14 90/17 91/1 91/5
92/16 94/21 95/12 99/9 102/12
become [1] 35/17
been [23] 5/2 6/4 9/9 10/18 14/14
18/17 22/5 26/2 36/23 40/11 56/19
57/5 57/6 59/7 61/24 63/17 65/3 67/21
67/22 68/14 79/15 85/25 91/20
before [13] 18/20 21/12 25/25 50/10
63/11 67/5 71/5 71/11 72/7 91/6 92/22
97/12 97/17
beg [1] 64/3
began [1] 86/12
begin [1] 63/11
beginning [2] 27/5 29/3
begins [1] 86/5
behaved [2] 35/15 58/1
behavior [1] 23/3
behind [2] 41/15 58/6
being [25] 6/6 10/18 13/1 31/12 31/12
36/17 40/12 42/3 42/3 45/10 51/20
53/6 55/5 56/18 65/12 66/11 67/23
75/8 77/2 78/3 85/16 85/21 95/17
95/23 98/21
beliefs [1] 40/16
believe [22] 10/24 18/24 53/10 55/15
57/18 60/19 65/12 65/12 65/14 66/5
66/14 68/22 68/23 71/20 78/10 79/17
82/7 84/2 99/2 99/21 100/9 100/14
believed [4] 67/22 67/23 71/23 72/2

believes [3] 52/18 52/18 72/13
benefit [5] 77/10 85/21 85/22 85/23
100/20
BENNETT [2] 2/4 3/10
Bennett's [1] 100/7
best [4] 31/17 76/14 86/17 97/4
beta [2] 37/8 64/13
Beth [1] 74/20
better [3] 59/4 59/13 81/23
between [9] 5/4 19/2 23/12 24/2 42/3
49/23 64/24 94/22 99/18
BEVERLY [1] 2/13
beyond [6] 31/7 44/23 47/15 62/3
87/19 98/7
Bible [1] 77/15
big [2] 46/1 56/9
bigger [1] 58/12
bill [1] 44/6
billions [1] 62/19
binder [6] 28/21 41/14 44/7 58/5 98/11
99/16
BIROTTE [1] 1/3
bit [1] 88/9
bits [18] 79/10 79/13 79/14 81/15
81/17 82/12 82/14 82/22 82/23 83/1
83/7 83/10 83/25 84/3 84/6 84/7 85/2
85/4
blank [1] 93/8
blanket [1] 18/4
blanking [1] 24/22
Blizzard [4] 18/24 22/7 23/4 75/4
blog [1] 40/19
blood [1] 12/3
bloodiest [1] 9/6
bloods [1] 52/2
Blu [13] 5/22 29/4 43/1 43/10 58/13
69/17 70/10 70/18 71/15 72/7 76/18
81/24 92/19
Blu-ray [12] 5/22 29/4 43/1 43/10 69/17
70/10 70/18 71/15 72/7 76/18 81/24
92/19
Blu-rays [1] 58/13
bolded [1] 15/9
bomb [1] 68/21
bond [4] 61/21 62/2 62/7 62/20
book [7] 6/22 6/23 82/16 82/17 83/3
83/5 83/6
books [2] 6/20 7/1
bookstore [3] 6/19 6/21 6/24
bootleg [1] 25/7
both [3] 4/14 102/19 102/20
bottom [2] 44/8 58/10
bought [9] 6/15 33/1 33/2 33/2 33/7
33/15 33/15 96/14 96/15
boycott [1] 68/11
break [5] 11/1 43/20 46/23 61/10 94/11
breakdown [1] 11/25
BRIAN [2] 2/16 3/14
brief [5] 43/4 43/6 61/8 96/15 99/9
briefly [2] 57/21 96/11
bring [7] 10/21 10/22 21/13 25/3 25/12
36/9 100/23
bringing [1] 66/25
broad [1] 79/8
broken [3] 83/9 85/2 85/3
BROS [4] 1/6 20/18 92/20 92/23
Brothers [1] 60/2
brought [2] 46/2 56/19
build [4] 39/5 39/8 39/20 59/11
building [1] 59/4

B

CCRR [1] 1/23
CD [2] 33/18 33/20
built [1] 30/17
cease [1] 71/24
bunch [3] 32/9 37/18 44/14
cellophane [1] 29/15
burden [1] 50/18
CENTRAL [1] 1/2
business [18] 4/2 8/10 13/19 23/6 35/6
CENTURY [2] 1/6 2/16
35/6 36/13 36/14 36/16 39/5 39/8
certain [5] 10/15 53/10 89/9 92/1
39/20 50/15 54/11 60/8 62/18 77/3
102/24
100/18
certainly [1] 53/22
buttoned [1] 58/17
CERTIFICATE [1] 104/1
buy [16] 6/23 7/23 7/24 13/20 55/4
certify [1] 104/3
58/8 69/20 71/13 71/13 71/17 80/20
cetera [2] 69/19 99/13
86/25 87/2 94/16 94/17 97/18
chair [2] 67/12 68/4
buy/sell [1] 58/8
challenge [1] 46/1
buyback [2] 56/12 58/15
challenged [1] 25/22
buying [4] 29/16 29/17 54/21 71/20
challenging [1] 12/23
buys [5] 7/15 28/24 29/3 70/11 73/2
Chamberlain [3] 23/20 23/25 24/5
bypass [1] 42/9
chance [4] 3/24 16/14 61/13 61/14
change [8] 29/24 51/10 51/13 52/1
C
58/10 58/11 80/17 88/17
cabin [1] 52/14
changed [3] 25/18 88/12 89/24
cable [1] 70/20
changes [2] 53/20 88/23
Cadence [1] 57/24
changing [1] 40/22
calculated [1] 88/4
charge [2] 101/5 101/8
calculation [1] 87/10
cheaper [1] 69/2
calendar [2] 59/22 93/9
CALIFORNIA [9] 1/2 1/19 1/24 2/5 2/13 check [1] 63/1
checked [1] 10/18
2/17 3/1 37/3 37/20
CHIA [3] 1/23 104/14 104/15
call [2] 59/25 85/7
chief [1] 10/9
called [4] 20/14 27/21 46/3 47/7
child [1] 91/20
Calling [1] 3/4
can [38] 4/9 6/16 9/24 11/3 12/2 12/14 children [2] 90/19 91/19
12/16 13/14 27/19 28/15 34/14 34/15 choose [10] 8/14 9/1 9/14 9/15 11/18
11/18 12/24 87/14 90/3 90/4
37/21 40/4 44/24 48/22 50/1 52/13
chooses [2] 5/23 83/25
55/7 60/12 61/15 67/7 69/23 70/7
choosing [3] 9/23 11/22 92/14
70/12 70/13 72/15 77/13 85/4 86/10
chopped [1] 79/9
88/9 91/11 92/1 94/15 95/21 96/3
chose [2] 65/20 67/6
96/12 101/5
can't [10] 26/23 30/8 30/23 34/19 48/14 Chromecast [4] 65/25 66/2 75/25 99/12
Church [1] 51/3
53/21 58/10 58/11 60/19 77/16
circuit [24] 18/23 19/5 19/5 22/12 22/23
canard [1] 8/23
cannot [13] 5/8 5/8 21/14 24/17 24/24 22/25 23/21 23/22 37/4 38/17 38/19
46/4 47/24 47/25 50/20 51/4 51/5
25/11 25/19 25/19 70/6 74/2 91/25
51/21 57/22 57/24 62/13 62/14 75/4
91/25 102/16
89/2
CANYON [1] 2/12
circumstances [1] 39/3
capital [1] 42/17
circumvent [5] 14/9 41/19 42/8 42/12
Capitol [1] 34/3
74/6
Capitol Records [1] 34/3
circumventing [3] 40/24 41/23 47/3
care [3] 6/22 68/2 95/20
circumvention [20] 17/17 17/21 23/10
carried [1] 84/22
case [65] 18/24 20/25 21/11 22/4 22/7 23/13 29/8 42/5 43/11 44/2 44/11
44/25 45/15 46/2 46/16 46/20 46/22
22/11 22/23 22/23 23/3 23/8 27/22
48/2 48/4 48/5 48/8 48/13
28/22 28/24 34/3 34/3 34/21 37/3
cite [6] 35/23 39/12 43/16 43/18 45/22
38/16 39/11 39/14 40/15 42/7 43/16
87/6
45/19 45/22 45/25 46/3 46/7 46/9
cited [8] 27/14 45/2 47/19 47/20 51/3
47/15 47/17 47/18 47/20 49/19 50/20
51/5 57/25 61/24
51/2 51/3 51/4 51/6 51/21 51/21 52/5
cites [1] 55/22
52/11 52/23 55/14 57/24 57/24 61/5
citing [1] 24/4
61/25 62/6 62/16 62/22 62/22 64/20
Cittadine [3] 39/23 86/5 86/5
65/1 71/2 75/5 76/3 84/8 85/7 85/20
Cittadine's [1] 86/21
88/2 99/11 99/22 102/22
city [1] 36/15
cases [19] 18/22 18/25 19/4 21/12
27/13 35/24 38/18 39/10 39/17 39/21 civil [1] 101/1
claim [18] 17/17 19/7 20/21 22/5 27/24
43/14 49/17 61/25 62/1 62/21 62/21
28/12 37/1 44/10 46/11 46/16 46/20
87/6 88/1 95/15
48/2 48/4 48/5 48/9 50/4 66/10 88/10
categories [7] 12/1 12/1 12/10 12/14
claimed [1] 24/6
78/12 79/8 84/4
claims [2] 23/8 48/17
category [1] 12/17
clarification [1] 52/25
cause [2] 71/23 91/18
cleaned [1] 96/18
caused [2] 67/8 71/22
CleanFlicks [2] 27/13 27/16
causing [1] 67/16

ER201

clear [26] 13/4 23/2 24/15 27/15 28/19
32/22 37/4 37/20 40/23 41/14 41/16
43/14 44/3 44/9 45/18 45/25 48/11
52/22 56/7 56/11 57/21 62/17 95/16
97/11 99/2 99/3
clearer [2] 50/21 80/2
clearly [5] 33/3 47/17 64/25 82/9 90/14
ClearPlay [22] 20/14 20/16 27/21 28/1
28/4 28/5 30/12 30/19 31/1 34/11
34/12 60/16 60/18 60/18 75/20 75/21
75/23 76/8 76/9 76/14 76/24 77/1
ClearPlay's [1] 80/16
click [1] 79/5
client [5] 11/10 26/22 36/12 79/3 87/4
client's [2] 26/17 55/3
clients [1] 55/2
clock [1] 101/1
close [3] 50/21 62/23 93/5
closing [8] 8/20 9/8 11/23 56/3 89/15
89/23 89/25 92/8
cloud [15] 77/12 81/15 81/23 82/6
82/23 83/1 83/25 84/6 84/17 84/23
85/5 85/6 97/22 97/22 98/5
cmjui.csr [1] 1/25
Code [1] 104/4
codified [1] 46/11
cognizant [1] 61/7
colleagues [2] 3/10 64/21
collect [1] 82/14
collection [1] 94/24
collective [1] 67/8
collectors [1] 69/16
college [1] 6/18
Columbia [2] 14/6 46/8
combination [1] 76/23
come [10] 35/9 38/24 47/9 50/21 53/22
54/15 56/7 58/16 62/23 101/15
comes [3] 39/19 40/8 92/19
coming [3] 14/19 33/7 33/8
commend [1] 59/15
comment [4] 10/14 24/15 58/7 102/10
commentary [1] 10/11
comments [2] 55/18 96/19
commercial [4] 50/25 51/1 54/8 94/21
Commission [1] 56/23
committee [1] 45/4
common [2] 68/19 68/20
communications [2] 64/23 68/8
companies [11] 19/13 20/8 20/10 27/20
36/17 67/12 67/14 71/1 72/6 75/22
85/6
company [9] 19/12 20/14 26/18 28/14
30/12 39/7 60/3 74/12 75/21
company's [1] 94/19
compensate [1] 38/9
compete [4] 92/14 92/20 92/23 93/1
competing [2] 23/5 70/15
competition [6] 92/7 93/19 95/11 95/13
95/17 95/23
competitive [1] 23/3
competitor [2] 23/5 92/13
competitors [1] 30/11
complained [6] 18/9 63/18 64/5 64/6
90/2 90/6
complaining [1] 89/15
complaint [5] 37/14 38/11 39/25 64/9
66/5
complaints [1] 64/8
complete [2] 15/1 18/4
completed [2] 66/19 87/20

C
completely [1] 57/1
complied [1] 60/10
comply [1] 57/23
compromise [2] 19/9 21/1
computer [5] 33/24 41/1 49/23 49/24
73/22
computing [3] 77/12 84/17 85/6
conceded [1] 97/21
conceding [1] 45/16
concepts [1] 94/10
concern [2] 21/17 61/11
concerned [2] 101/4 101/25
concerning [4] 23/1 64/7 67/4 81/17
concession [1] 45/14
concluded [2] 76/6 103/4
conclusion [1] 84/23
concretely [1] 36/23
conduct [8] 17/18 24/24 32/18 32/19
44/12 48/14 65/21 91/21
Conference [1] 104/8
confirm [1] 5/2
conformance [1] 104/7
confusion [1] 40/15
Congress [31] 19/9 19/17 19/19 20/8
21/9 21/10 21/20 24/16 27/7 44/25
45/10 46/19 46/21 47/6 47/8 47/10
47/13 54/25 55/11 77/6 80/5 80/6 80/6
80/8 80/10 83/19 91/12 91/13 97/4
97/6 97/11
congressional [2] 25/5 84/21
congressmen [1] 24/17
conjecture [1] 100/19
conjunction [2] 18/1 30/14
connection [1] 42/3
Connectix [1] 49/19
consent [1] 21/3
consider [1] 23/11
consideration [1] 62/7
considerations [1] 39/4
considered [5] 45/4 45/10 91/14 91/23
91/23
consistent [4] 65/21 74/20 89/21 98/23
constantly [1] 100/17
constitute [1] 82/12
constitutional [1] 46/5
constitutionality [1] 46/1
construction [1] 75/10
construing [1] 31/18
consumer [21] 9/21 9/22 12/13 12/14
40/15 40/16 76/15 76/16 76/21 80/17
81/16 81/18 83/25 84/2 84/5 84/8 90/7
90/7 90/9 97/23 97/24
consumer's [1] 93/15
consumers [9] 8/14 19/21 20/4 40/22
58/24 80/18 90/3 91/1 101/6
contacted [1] 76/3
contain [2] 9/4 79/14
contained [1] 79/15
contains [2] 10/8 10/10
contemplated [2] 79/17 80/12
contend [2] 24/21 77/13
contends [1] 13/5
content [56] 12/1 13/22 19/10 20/5
21/24 25/14 25/15 25/16 25/25 26/8
26/19 39/5 39/9 39/19 39/20 49/3
54/22 54/24 55/9 56/14 59/2 59/8 60/6
69/3 69/17 70/13 70/14 70/16 71/14
73/12 75/15 76/2 76/22 77/7 79/23
80/13 80/18 81/5 81/20 81/21 84/21

ER202

88/22 89/11 89/13 91/14 92/13 92/25
93/20 93/23 95/5 95/7 95/8 96/18
96/23 98/20 102/7
contention [2] 17/3 87/4
context [3] 36/25 62/4 72/22
continue [4] 16/15 37/14 38/14 48/12
continues [1] 37/12
continuing [2] 37/21 38/14
contracts [1] 100/2
control [6] 15/10 15/14 15/16 43/10
43/13 43/21
controls [7] 14/10 41/20 41/23 42/7
42/16 43/8 74/7
conversion [1] 59/1
convert [1] 78/2
copied [2] 67/2 73/2
copies [25] 6/25 7/23 13/20 25/7 27/12
27/16 27/17 31/24 32/2 33/15 41/1
49/9 49/10 49/13 50/1 56/18 72/17
77/15 81/22 85/3 85/10 85/11 85/18
86/25 87/2
copy [68] 7/4 19/22 19/25 21/25 28/13
28/13 29/11 29/12 29/18 29/21 29/22
30/18 32/24 33/1 33/8 33/9 33/12
33/18 33/23 33/24 34/6 34/9 48/22
49/2 49/7 49/14 49/15 49/15 49/22
50/11 50/12 54/15 73/14 73/16 73/17
73/18 73/19 73/21 73/25 73/25 74/1
74/4 81/13 81/22 81/25 82/6 82/13
82/24 83/13 83/15 83/16 83/16 83/22
83/23 85/1 85/11 85/17 97/9 97/15
97/17 97/19 97/22 97/22 97/23 97/23
98/3 98/5 98/7
copying [4] 30/5 49/20 53/6 54/3
copyright [51] 13/7 15/12 15/21 15/24
16/1 16/17 16/20 16/21 16/23 17/8
17/10 20/23 22/9 22/13 22/14 22/15
22/16 22/17 22/19 22/20 22/20 24/3
25/2 25/9 30/15 32/10 32/15 34/18
34/20 40/7 42/10 42/20 43/2 47/1 48/7
49/5 49/20 53/3 73/10 74/14 74/16
74/17 74/18 75/3 75/6 75/7 87/11
87/12 87/13 91/10 94/22
Copyrights [3] 19/14 45/6 74/20
Corley [1] 46/4
CORPORATION [1] 1/6
correct [16] 4/6 4/10 4/20 5/20 7/12
7/25 8/5 13/7 33/21 63/4 71/4 75/20
79/1 79/2 94/6 104/5
correctly [2] 13/18 78/16
correspondence [1] 5/3
cost [3] 30/18 35/24 68/13
could [41] 4/11 4/12 8/25 9/1 11/14
18/20 19/6 21/13 22/4 25/6 26/12
26/16 26/18 28/4 28/5 28/8 34/16
36/22 38/1 41/14 52/1 55/1 55/2 55/2
55/9 58/16 66/2 68/15 71/17 72/12
74/3 77/11 80/16 83/1 86/22 88/4 90/3
90/4 91/14 91/18 92/5
couldn't [3] 50/20 77/18 80/2
counsel [19] 2/1 3/6 3/11 3/13 14/15
14/23 36/16 64/4 65/8 68/17 75/10
75/19 75/23 81/12 91/4 91/8 92/4
92/18 102/19
counterclaim [3] 1/8 2/2 23/16
COUNTERCLAIMANT [2] 1/12 2/11
counterclaims [1] 23/17
country [3] 21/19 78/6 78/7
couple [7] 13/12 50/17 54/7 62/7 93/7
94/9 96/9

course [7] 19/8 42/18 64/16 76/20
79/19 90/21 102/3
court [28] 1/1 1/23 9/24 10/3 13/12
13/12 14/5 23/21 24/1 27/18 47/22
48/13 54/4 61/4 61/7 61/8 65/16 69/25
72/4 72/21 80/4 85/8 87/14 88/3 89/22
100/25 102/23 103/3
Court's [2] 9/19 100/23
courtroom [1] 30/17
courts [2] 37/4 49/23
covered [3] 17/18 44/12 57/18
covers [2] 37/18 47/13
crazy [1] 78/23
create [1] 21/2
created [4] 33/8 73/22 76/24 83/14
creates [2] 44/1 97/14
creating [2] 71/7 72/3
creation [1] 83/15
creative [1] 58/15
credible [1] 54/2
credit [4] 5/24 6/12 8/24 55/8
credits [19] 3/20 8/20 8/21 8/22 9/4 9/7
9/8 9/15 11/22 11/23 56/3 89/12 89/14
89/15 89/23 89/25 92/8 92/9 92/14
criminal [1] 93/9
Crippen [1] 47/17
critical [2] 15/9 97/13
cropped [1] 51/20
CSR [2] 1/23 104/15
CSS [1] 43/8
curat [1] 18/21
curious [1] 61/20
current [1] 72/13
curse [1] 88/16
customer [29] 4/4 4/10 4/19 4/22 4/23
5/8 5/8 5/13 5/16 5/17 5/23 5/24 5/25
6/5 6/10 6/15 6/17 7/7 22/2 29/17
29/19 70/17 71/17 71/19 77/20 77/20
78/25 97/18 97/19
customer's [1] 73/17
customers [13] 5/2 6/6 7/16 7/20 9/8
13/21 13/21 29/20 69/24 70/1 70/14
71/13 89/9
cut [4] 51/9 76/8 99/23 99/23
CV [2] 1/9 3/4
cycle [3] 69/6 70/23 92/17
cycling [1] 60/5

D
daily [1] 94/25
damages [9] 38/8 38/11 38/16 38/20
41/8 87/10 87/15 87/24 88/4
Damocles [1] 66/17
data [1] 58/25
date [13] 71/10 71/11 93/18 94/5 94/5
94/8 95/1 95/3 95/6 95/6 95/8 95/8
104/10
dates [1] 95/1
DAVID [2] 2/12 3/12
day [18] 5/21 5/23 6/2 6/10 7/3 7/6
7/23 7/24 16/12 38/20 48/10 55/24
58/23 65/9 65/10 95/9 95/14 95/14
Day 1 [1] 7/23
Day 2 [1] 7/24
days [7] 5/25 65/6 65/7 66/21 71/15
71/20 72/1
DD [1] 43/9
DD Plus [1] 43/9
de [2] 18/20 68/14
de minimis [1] 68/14

D
dealing [1] 44/25
deals [2] 42/4 49/21
death [2] 77/12 84/23
debate [1] 75/16
December [7] 23/15 64/5 64/6 64/10
86/18 102/24 104/10
December 19 [1] 23/15
December 19th [1] 102/24
December 2015 [2] 64/6 64/10
decide [12] 11/8 12/15 18/12 40/10
55/2 55/3 59/9 90/7 91/2 91/25 92/5
92/13
decided [5] 27/7 39/1 45/11 58/2 71/12
decides [2] 84/8 92/11
deciding [1] 18/10
decision [14] 23/22 23/23 27/23 38/17
39/2 39/8 43/17 45/22 46/5 46/21
47/16 47/23 67/10 95/4
declaration [9] 15/13 39/23 42/24 65/8
75/17 76/13 86/5 86/21 100/7
declarations [1] 63/19
declaratory [1] 36/25
declared [2] 14/6 91/17
declines [2] 5/21 5/22
decrypt [5] 21/7 21/18 42/9 76/1 78/1
decrypted [7] 4/14 21/21 85/16 85/17
85/18 102/12 102/16
decrypting [1] 25/16
decryption [5] 4/12 4/13 19/2 25/21
75/15
decrypts [2] 4/8 29/1
def [1] 76/18
default [2] 84/7 84/11
defendant [7] 1/11 2/11 23/8 38/19
57/22 65/2 88/3
defendant's [1] 51/14
defendants [5] 1/8 2/2 28/1 28/2 61/21
defense [32] 13/6 13/9 17/14 17/16
22/10 22/14 24/10 25/4 27/18 27/19
32/3 44/10 45/15 46/11 46/11 46/14
46/15 46/20 47/2 47/4 47/13 47/18
47/21 47/24 48/2 48/4 48/5 48/8 48/25
50/8 50/17 50/22
defenses [3] 34/21 42/13 48/24
define [1] 71/13
defines [1] 15/18
definitely [1] 38/4
definition [8] 16/5 16/7 41/22 42/6 57/5
59/2 76/17 91/3
definitions [1] 50/6
delay [6] 35/21 57/19 65/9 65/10 66/25
71/15
deleted [1] 12/25
deliberate [1] 46/21
deliberately [3] 54/25 58/2 78/7
delivered [1] 80/20
demonstrate [2] 13/14 28/22
demonstrated [1] 91/20
denial [1] 46/5
denied [1] 88/2
deny [3] 22/15 85/22 85/22
depend [2] 21/2 95/9
depending [1] 94/19
depends [1] 72/8
deposition [3] 99/14 99/17 100/6
derive [1] 69/8
derived [1] 22/1
derives [1] 8/6
descramble [1] 42/8

ER203

describe [1] 26/17
described [4] 10/7 37/9 74/13 98/2
describes [1] 32/20
describing [1] 10/25
description [1] 5/20
designed [1] 34/13
desire [1] 26/8
desist [1] 71/24
destabilize [1] 55/16
destabilizing [1] 62/18
detail [4] 15/14 39/11 46/18 48/18
details [1] 28/19
determine [1] 40/7
determined [1] 71/10
develop [1] 35/8
development [1] 36/16
device [4] 5/10 65/25 66/2 80/12
devices [2] 5/9 43/11
devil's [1] 33/13
devoted [1] 40/20
DGA [2] 67/8 68/11
did [19] 21/2 25/23 26/5 27/7 28/2 36/1
41/8 43/5 44/22 47/6 53/9 63/16 65/7
66/9 66/11 75/16 76/24 98/9 101/7
didn't [7] 8/24 9/1 25/25 45/16 53/22
63/16 72/3
die [1] 36/6
differ [1] 64/3
different [22] 16/8 28/11 51/19 52/17
52/19 65/15 78/4 78/5 78/7 78/8 79/1
79/5 85/19 89/6 89/7 90/21 90/25
94/15 95/1 95/2 95/20 97/22
differently [1] 36/23
difficult [1] 76/19
Digital [1] 13/7
direct [1] 23/4
directed [1] 99/11
direction [3] 73/11 79/20 79/22
directly [3] 35/13 39/6 60/7
director [1] 69/18
director's [1] 88/23
directors [4] 19/16 19/24 20/3 26/10
disagree [2] 11/11 36/20
disclosed [1] 64/14
discover [1] 49/23
discovery [1] 71/9
discuss [1] 98/9
discussed [5] 45/11 62/22 75/5 86/4
91/12
discussion [6] 15/4 39/15 39/18 45/21
45/23 75/13
Dish [1] 47/18
disk [8] 5/22 78/2 78/22 80/20 80/20
81/24 84/19 92/19
disks [8] 29/4 43/1 43/10 48/14 70/11
71/15 72/7 101/20
dismiss [1] 23/16
dismissed [1] 20/22
DISNEY [12] 1/5 3/5 9/13 13/5 14/20
17/12 20/18 35/20 36/1 64/18 64/20
71/2
Disney's [4] 18/3 18/7 18/7 87/4
dispute [2] 33/15 33/16
disputing [1] 13/6
disrupt [2] 55/16 66/6
distributing [1] 27/17
distribution [4] 29/8 29/9 59/5 69/12
distributors [2] 40/1 93/25
district [11] 1/1 1/2 1/3 14/5 14/5 39/11
39/17 46/8 47/16 47/19 61/25

District of [2] 14/5 46/8
DIVISION [1] 1/2
divorced [1] 85/14
DMCA [24] 13/13 13/19 13/23 14/2
17/14 19/1 19/7 21/13 21/15 22/5
22/21 22/22 23/9 23/23 24/13 41/15
46/1 46/11 46/19 74/18 74/22 74/24
74/25 75/7
do [60] 6/2 10/6 10/23 11/6 11/16
11/21 12/9 20/20 22/19 24/1 25/24
29/6 30/24 31/7 31/24 33/9 34/11
34/15 34/17 35/2 35/18 40/10 41/2
42/14 45/5 45/11 47/22 49/25 50/14
51/7 52/21 54/14 55/23 57/12 58/13
59/9 59/9 60/12 60/18 63/21 64/3 68/1
68/7 68/8 73/1 77/2 77/18 79/6 79/16
79/22 81/7 87/3 89/2 93/6 95/20 98/6
100/9 100/11 100/18 100/22
doctrine [1] 83/18
document [1] 56/23
documents [1] 58/6
does [24] 6/13 17/7 17/8 17/20 21/23
22/22 23/4 26/2 26/3 28/12 32/9 44/17
46/24 47/14 49/1 49/1 57/11 68/3
69/20 75/2 75/11 81/14 88/17 95/9
doesn't [27] 8/9 13/19 32/14 33/19
43/13 43/20 44/20 49/3 49/6 51/10
51/12 51/15 54/18 54/22 54/23 57/11
62/23 63/13 63/21 69/24 70/25 74/19
76/18 78/24 83/15 88/17 92/15
dog [3] 69/12 85/20 85/20
doing [18] 33/12 35/5 36/18 40/21
40/24 48/15 50/1 50/10 54/19 55/12
60/5 77/2 77/5 77/19 78/14 89/19 91/9
99/3
dollar [5] 5/21 55/24 56/4 57/12 58/23
dollars [5] 62/11 62/19 77/21 77/24
86/25
don't [51] 3/25 7/21 11/1 11/6 11/25
12/4 12/5 12/7 13/5 15/3 16/22 16/23
27/18 28/20 33/15 33/16 35/1 35/5
36/7 36/9 36/9 41/10 43/1 43/10 45/9
47/22 51/24 53/9 54/1 54/9 54/13 55/5
55/21 55/25 63/3 63/5 63/6 68/1 68/2
68/16 70/23 72/24 81/10 84/3 86/24
87/17 93/15 95/20 95/22 96/17 100/13
done [13] 25/2 28/14 31/1 36/22 53/6
55/9 69/11 72/1 79/4 79/9 80/15 90/8
90/10
door [1] 80/7
downloads [1] 34/4
Dr. [3] 42/24 43/5 43/8
Dr. Meldahl [3] 42/24 43/5 43/8
drawing [1] 93/8
drawn [1] 62/10
drinking [1] 12/2
DRIVE [1] 2/12
duplicate [1] 85/10
during [13] 10/14 10/17 22/17 32/22
35/10 37/8 66/17 73/13 79/24 84/9
93/23 93/24 98/22
DVD [64] 4/5 4/18 4/19 4/21 4/22 4/23
5/2 5/4 5/5 5/9 5/18 5/21 5/24 6/13 7/8
7/14 8/10 22/1 28/3 28/4 28/24 29/1
29/7 29/11 29/22 29/24 33/7 33/8
33/20 33/22 33/23 34/12 34/13 37/18
43/12 54/21 60/21 60/23 60/24 60/25
69/17 70/18 77/18 77/20 80/21 81/23
82/2 92/19 92/22 92/25 93/18 93/18
94/4 94/7 95/3 95/6 95/7 95/12 97/18

D
DVD... [5] 97/24 98/1 102/1 102/3
102/16
DVD-type [1] 60/21
DVDs [30] 5/1 6/4 7/15 7/18 8/5 8/13
10/16 10/18 13/20 19/23 28/20 29/4
30/12 40/24 42/25 43/9 55/4 56/10
58/13 69/19 70/10 71/14 71/21 72/7
73/6 87/2 101/11 101/11 101/16 102/7
dynamic [1] 24/8

E
e-mail [3] 58/18 67/2 67/4
each [2] 4/21 95/4
earlier [7] 65/24 68/18 71/8 74/11 75/5
78/11 98/2
early [2] 6/25 71/5
early 2015 [1] 71/5
easier [1] 96/13
EAST [2] 1/24 2/16
easy [1] 18/15
economic [4] 19/21 38/2 38/5 40/5
economics [1] 101/8
edited [3] 27/12 27/17 52/14
edition [1] 69/17
effect [7] 54/5 54/16 84/16 85/15 85/17
85/19 96/19
effective [4] 15/10 15/16 15/19 16/6
effectively [12] 14/10 15/20 16/7 16/16
41/20 42/16 42/22 43/1 43/7 43/10
43/21 74/7
EHLER [2] 2/8 3/10
either [2] 8/19 27/19
elements [3] 15/9 24/8 49/24
eliminated [2] 90/6 92/1
Elizabeth [1] 76/14
Elizabeth Ellis [1] 76/14
Ellis [1] 76/14
else [9] 9/16 9/17 26/4 28/15 76/1
89/25 93/14 95/17 101/9
else's [1] 76/1
Elsewhere [1] 25/5
Elvis [1] 51/5
Elvis Presley [1] 51/5
employees [1] 59/19
enacted [5] 21/15 25/13 26/1 79/18
96/22
encouraged [1] 46/19
encrypted [4] 25/19 82/12 83/7 83/24
encryption [1] 42/13
end [12] 6/24 10/14 38/16 38/20 48/10
49/11 55/13 64/15 64/16 73/6 91/6
91/9
end-run [2] 55/13 91/9
ended [1] 80/10
ends [2] 80/5 80/6
enforce [3] 22/16 23/9 34/19
enforceable [2] 22/20 22/20
engage [1] 11/17
engaged [1] 65/22
engaging [5] 17/18 44/12 56/10 74/13
75/6
enjoined [2] 40/25 62/9
enjoy [3] 16/23 17/10 19/10
enormous [3] 41/4 84/24 84/24
enough [2] 13/2 70/5
ensure [1] 19/9
entered [1] 61/25
enterprise [1] 51/1
ENTERPRISES [3] 1/5 3/5 51/5

ER204

ENTERTAINMENT [2] 1/6 18/24
exorbitant [1] 67/18
entire [5] 5/10 12/16 55/16 70/23 95/21 expectations [1] 40/16
entirely [1] 84/14
expected [1] 86/23
entirety [1] 32/12
expensive [5] 6/25 69/20 77/11 78/1
entitled [3] 36/8 37/6 104/6
84/18
entry [1] 74/14
experience [4] 39/4 76/16 86/10 86/22
expert [2] 15/13 42/23
enumerated [1] 47/11
explain [5] 61/5 65/9 65/9 72/22 77/23
envisioned [2] 20/8 91/10
explained [5] 26/6 57/12 72/14 75/17
equitable [1] 22/13
89/15
equitably [1] 35/15
explains [1] 15/14
equities [3] 35/14 57/20 59/15
exploiting [1] 60/6
equivalent [1] 43/19
exposure [1] 91/19
error [1] 76/19
express [2] 74/24 75/1
escape [1] 63/13
expressed [1] 67/6
especially [1] 24/15
expressly [2] 20/8 83/19
essence [1] 94/18
extend [1] 46/20
essentially [1] 27/23
extensive [1] 39/15
establish [1] 50/19
established [4] 43/25 55/13 86/1 91/10 extensively [1] 67/2
extra [1] 69/17
estimate [1] 29/14
extremely [1] 76/15
estimates [1] 7/13
extrinsic [1] 51/22
et [3] 3/5 69/19 99/13
eyesight [1] 63/4
et cetera [2] 69/19 99/13
even [20] 5/7 18/8 18/23 44/16 45/16
F
48/6 51/23 52/7 55/20 62/24 69/12
F-bomb [1] 68/21
82/12 82/13 86/7 89/5 90/15 96/17
F.Supp.2d [1] 45/23
97/23 97/25 98/3
face [1] 79/19
evening [1] 10/8
facie [1] 24/11
event [1] 68/25
fact [18] 18/7 26/22 33/19 35/14 36/21
ever [4] 5/2 19/13 52/23 97/25
every [16] 6/19 19/12 22/1 22/2 29/24 37/8 39/18 51/8 51/10 75/19 84/17
84/20 86/17 87/7 96/7 98/19 99/20
35/3 47/8 77/18 77/19 77/20 77/20
100/19
78/25 80/5 84/19 84/19 99/20
factor [7] 50/24 53/5 54/4 54/5 54/12
everybody [2] 21/24 52/13
54/13 60/9
everyone [2] 30/17 93/14
factors [1] 50/23
everything [3] 79/6 80/6 83/9
facts [4] 34/22 34/22 34/25 100/15
evidence [15] 10/20 31/6 31/18 35/4
factually [1] 69/5
35/6 38/15 55/18 55/18 56/11 56/16
fair [30] 13/2 13/6 13/8 13/24 24/2 24/7
97/4 99/15 100/19 101/23 102/22
24/9 27/18 45/13 45/14 46/6 46/10
evident [1] 89/1
46/11 46/14 46/20 47/2 47/4 47/17
evidently [1] 71/6
47/21 47/24 48/2 48/5 50/17 50/18
exact [2] 84/9 89/6
50/22 50/23 52/16 67/17 70/5 88/10
exactly [3] 9/21 56/6 57/16
example [8] 24/20 33/5 49/14 62/5 85/1 fairly [1] 68/14
fairness [1] 67/25
89/2 94/2 94/14
fall [1] 79/7
examples [2] 39/24 96/10
falling [1] 84/4
exception [2] 74/25 75/1
false [3] 27/6 27/25 28/10
exceptions [1] 71/4
familiar [1] 6/18
excerpts [1] 99/17
families [6] 18/12 19/10 26/7 81/4
excess [1] 87/20
84/22 91/15
Exchange [1] 56/22
family [41] 16/18 16/19 16/24 17/2 17/3
exchanged [1] 67/3
17/4 18/5 19/8 19/16 20/14 25/3 25/8
exclusion [1] 83/19
31/7 31/10 31/23 32/11 42/4 44/1
exclusive [8] 16/20 16/23 17/8 17/9
44/17 48/3 48/25 49/1 50/9 54/22
32/10 40/6 46/15 46/25
55/12 72/14 80/9 80/22 81/2 92/10
exclusivity [1] 40/1
92/11 92/11 92/12 92/17 96/22 96/22
excruciating [1] 46/18
96/25 97/14 101/5 102/13 102/17
excuse [2] 24/18 44/17
far [3] 12/9 57/5 65/5
excused [2] 50/14 50/16
fashioned [1] 19/19
exempt [3] 16/20 17/1 17/2
fast [3] 52/8 52/9 59/5
exemption [7] 17/19 17/21 18/5 44/1
FCRR [1] 1/23
44/12 47/12 97/14
feature [2] 90/5 96/24
exemptions [2] 32/10 47/12
February [1] 58/9
exercise [2] 10/2 15/23
FEDERAL [4] 1/23 19/5 23/21 23/22
exhausted [1] 85/5
fee [2] 30/17 30/17
Exhibit [3] 37/13 44/9 100/7
fees [1] 67/19
exhibiting [1] 91/21
exist [5] 8/24 21/23 47/14 75/17 76/24 female [1] 68/20
few [2] 66/21 91/5
existing [6] 19/15 21/11 22/4 27/8
fiction [3] 29/17 97/24 98/3
31/13 90/15

F
figured [1] 31/1
figures [1] 62/23
file [11] 21/16 21/18 21/19 21/21 21/24
22/3 65/6 65/20 78/2 78/3 78/5
filed [5] 37/11 63/17 66/5 67/5 89/22
filing [1] 59/21
FILM [1] 1/6
films [1] 96/24
filter [41] 8/24 9/1 9/15 9/15 11/12
11/16 25/7 25/14 28/2 28/5 28/7 28/15
30/8 30/22 31/2 34/13 34/14 53/21
55/5 55/8 60/13 66/3 74/3 74/3 76/2
77/18 77/19 79/4 80/1 80/13 88/12
88/14 89/11 89/25 89/25 91/11 92/3
92/6 92/8 92/14 95/21
filtered [39] 3/18 4/13 9/2 12/2 12/5
19/10 20/1 20/1 20/5 20/6 25/14 25/16
25/19 25/19 25/25 26/8 26/8 28/13
58/14 68/10 70/6 70/9 70/13 70/14
75/14 77/7 77/21 81/5 81/14 81/20
82/18 84/21 90/24 91/15 92/11 92/13
102/7 102/13 102/16
filtering [24] 4/14 8/11 8/18 8/19 11/16
12/23 19/13 27/11 49/2 53/19 57/11
60/21 60/23 75/21 75/22 78/24 82/1
82/1 88/22 89/10 89/23 91/11 92/24
99/12
filters [26] 8/14 8/16 9/23 9/24 10/12
11/19 11/19 11/22 12/8 12/12 27/25
51/8 53/11 53/14 53/25 55/6 55/21
68/19 68/20 68/23 79/1 81/16 84/1
84/3 84/9 98/6
final [4] 60/9 87/6 102/10 102/24
finally [6] 20/7 22/22 23/18 70/10 70/21
92/24
financial [1] 87/5
find [3] 6/25 21/20 91/15
fine [2] 63/22 83/21
finish [2] 81/8 81/10
firm [2] 3/14 4/25
first [39] 5/19 14/2 14/7 15/10 15/25
16/16 17/24 19/21 21/20 21/25 25/16
28/17 31/17 35/17 37/16 38/7 41/17
42/7 45/20 48/20 50/24 57/10 57/21
59/22 64/3 69/10 69/11 69/14 70/16
74/11 74/14 77/6 78/1 82/22 87/9
91/24 91/25 92/2 101/4
First Amendment [3] 91/24 91/25 92/2
five [4] 57/6 85/25 95/14 98/3
five-day [1] 95/14
five-hour [1] 98/3
fixed [5] 19/25 73/21 74/1 83/13 83/16
floating [2] 82/24 83/25
FLOOR [3] 2/5 2/9 2/17
flow [1] 11/2
FMA [32] 17/13 17/19 17/20 18/3 18/9
18/13 21/6 24/18 24/24 25/12 25/13
25/21 25/23 25/24 26/1 26/2 26/3 26/3
26/5 26/19 26/23 27/5 28/10 32/7
72/21 72/22 72/25 73/9 73/24 75/10
79/17 80/2
focused [1] 11/4
focusing [1] 97/7
follow [1] 7/22
following [7] 32/15 51/16 68/20 73/9
74/15 80/8 86/10
follows [1] 87/9
Footnote [1] 23/18
Footnote 12 [1] 23/18

ER205

goal [1] 59/4
God [1] 51/3
goes [9] 12/13 12/18 15/4 24/13 29/16
35/13 69/6 78/1 92/16
going [35] 3/16 8/16 13/17 14/20 14/21
16/12 27/8 29/14 37/17 37/23 39/19
39/20 40/9 40/9 40/10 47/25 49/14
50/15 51/1 53/17 56/8 57/2 58/22 59/4
61/11 61/12 61/13 63/20 73/20 83/12
89/17 91/5 96/20 97/10 102/21
gone [4] 82/16 97/17 99/11 100/17
good [6] 3/8 3/12 3/22 6/22 31/15
89/16
goodwill [1] 63/15
Google [15] 30/14 30/15 38/24 65/24
65/25 66/1 76/3 76/23 84/6 84/13
99/11 99/11 99/22 99/22 100/10
Google Play [4] 30/14 30/15 38/24
76/23
Google's [2] 84/7 84/11
gore [1] 12/3
got [14] 18/10 33/16 53/25 54/1 56/25
57/1 58/8 67/14 76/8 83/2 83/4 91/4
97/5 99/25
GRACE [2] 2/16 3/14
grand [6] 2/4 19/9 19/18 21/1 31/12
44/19
grant [1] 21/7
great [3] 55/20 55/23 96/18
greater [1] 12/9
Green [1] 46/7
grew [1] 37/8
grounds [1] 48/16
group [2] 27/20 68/11
groups [1] 47/8
growing [2] 37/10 77/4
grown [1] 64/15
G
growth [2] 86/15 86/18
gain [5] 25/8 42/20 82/25 93/15 102/17 guaranteed [1] 19/22
game [3] 8/25 23/6 89/23
guess [3] 3/25 35/25 88/10
general [7] 3/13 12/1 12/10 12/14
guesses [1] 7/16
27/10 36/16 78/11
Gutenberg's [1] 77/16
generally [2] 8/15 52/5
Gutierrez's [1] 47/16
generous [1] 61/5
guts [2] 12/3 52/3
get [31] 5/24 6/1 11/6 12/5 20/2 27/19
29/15 31/8 33/1 34/16 34/17 35/7 40/6 H
had [59] 3/23 4/24 6/20 13/17 18/16
42/13 46/8 47/25 49/2 50/13 57/12
18/19 18/25 19/1 19/5 19/10 19/12
58/11 58/25 60/24 70/16 72/6 80/5
20/3 23/23 24/21 24/23 25/1 26/16
93/9 94/22 94/25 95/1 96/12 97/25
27/17 28/3 33/9 36/17 36/23 48/7
get-go [1] 35/7
52/14 59/21 62/10 62/10 62/12 64/15
gets [5] 5/4 5/13 85/20 92/11 94/4
65/3 66/3 68/7 68/18 71/5 71/9 71/10
getting [2] 35/12 72/10
71/12 71/20 71/22 71/22 71/22 72/1
gimmick [2] 56/12 56/12
give [10] 5/17 13/12 13/15 16/13 21/8 75/24 85/3 86/14 86/15 87/22 88/3
89/18 91/17 91/17 91/20 92/5 92/24
39/12 63/5 63/7 91/5 102/1
given [5] 59/3 64/22 68/15 68/24 72/24 93/5 99/11 99/11 99/15 101/1
half [3] 57/4 59/22 79/13
gives [1] 6/12
hand [3] 7/19 15/2 31/20
giving [1] 97/18
handwritten [1] 77/15
GLENN [2] 2/3 3/10
hang [1] 22/8
Glider [1] 24/6
hanging [1] 66/17
gmail.com [1] 1/25
happen [2] 54/14 78/22
gnat [3] 35/17 36/2 36/3
happened [2] 40/2 57/5
gnats [2] 36/5 36/6
happens [12] 5/18 6/13 7/2 10/11 29/3
go [43] 4/25 5/12 11/14 12/14 13/3
32/11 37/6 47/2 47/8 78/17 78/20
14/21 15/7 16/12 21/5 28/16 33/4
78/21
34/16 35/7 36/6 36/19 36/24 37/14
happy [8] 9/12 15/2 31/19 48/18 50/5
37/15 39/6 40/19 43/25 46/17 48/18
66/19 89/19 101/7
50/5 50/23 55/4 56/1 57/9 58/8 59/12
60/12 63/6 76/6 77/6 78/8 80/19 82/11 hardly [1] 39/16
hardship [2] 57/22 87/5
84/18 90/9 92/7 93/19 96/11 101/2

for-profit [3] 20/8 20/10 51/1
force [1] 36/24
foregoing [1] 104/4
foreign [1] 69/12
forfeit [1] 36/9
forgiveness [1] 58/3
form [2] 11/16 78/4
format [2] 96/1 104/7
forth [3] 8/17 17/9 37/24
forward [4] 3/6 47/9 53/23 66/23
foul [1] 51/12
found [2] 55/19 91/17
four [8] 50/23 52/20 71/20 72/1 97/25
101/19 101/20 102/2
four percent [1] 101/19
fourth [4] 20/7 54/4 54/12 54/13
fourth factor [2] 54/4 54/13
fourth stakeholder [1] 20/7
FOX [3] 1/6 20/18 39/24
FRANCISCO [1] 2/9
FRANKLIN [1] 2/12
frankly [1] 55/1
freedom [1] 81/1
frequent [1] 76/20
frequently [3] 11/19 69/11 79/15
Freudian [1] 59/23
front [1] 11/10
full [3] 57/14 89/5 90/25
fully [1] 72/13
function [1] 33/14
functional [1] 49/24
Furious [2] 52/9 52/9
further [13] 17/20 21/17 22/6 38/1
41/10 61/17 72/12 75/4 75/5 75/7
90/17 93/2 99/7
future [4] 23/8 37/11 48/12 80/17

H
hardships [1] 35/14
harm [21] 18/19 19/2 19/6 37/6 37/7
37/21 38/2 38/2 38/4 38/21 39/12
39/21 40/11 54/9 57/18 59/17 59/18
63/14 67/20 71/23 85/14
harmed [1] 67/24
Harmon [10] 30/20 36/21 58/7 58/9
58/19 60/2 99/14 99/19 99/24 100/9
Harmon's [1] 99/17
harms [2] 39/21 86/11
has [67] 4/24 5/2 7/17 7/18 7/20 9/9
9/13 10/10 12/1 14/14 17/25 21/25
22/10 24/6 25/18 27/22 28/12 29/4
30/15 30/17 30/19 30/20 31/1 32/23
34/13 39/1 40/11 43/14 44/8 45/5
47/13 49/25 52/23 54/4 56/18 57/6
59/7 60/24 61/18 66/19 66/22 68/7
69/17 69/18 69/18 70/17 77/1 78/15
79/3 79/15 80/7 82/16 83/19 85/25
86/15 87/1 87/4 89/2 89/6 90/8 90/9
91/8 92/13 92/18 97/9 97/14 100/18
hat [1] 22/8
Hatch [5] 17/15 44/6 44/22 45/1 98/11
Hatch's [2] 17/25 98/10
have [215]
haven't [4] 14/20 48/6 48/8 50/21
having [11] 9/8 22/20 30/18 33/6 42/24
57/7 57/23 81/7 85/1 85/15 87/13
haystack [1] 63/17
HBO [1] 40/2
HD [1] 43/12
he [44] 6/1 7/8 16/5 17/16 17/20 26/22
27/1 29/2 30/20 31/3 31/4 31/5 31/5
33/7 36/15 36/22 39/23 39/25 44/9
44/9 44/15 44/18 44/20 45/15 46/18
53/12 58/8 58/10 58/21 58/23 82/4
86/7 86/9 90/9 94/12 95/13 97/12
97/16 97/17 97/21 99/15 100/3 100/18
101/17
he's [4] 26/25 27/1 58/22 100/20
head [1] 60/19
hear [8] 11/7 12/21 23/15 26/11 35/23
36/1 88/10 91/6
heard [8] 10/4 11/1 11/4 26/21 31/11
53/10 72/16 93/12
hearing [5] 34/24 56/19 66/13 66/15
100/20
heart [8] 6/20 52/6 53/3 53/15 53/16
53/20 54/3 88/16
heart's [1] 49/3
held [7] 6/4 19/5 23/23 27/22 88/3 89/3
104/6
help [3] 4/2 40/9 59/8
helpful [1] 31/21
here [47] 6/8 14/19 15/25 16/10 16/12
16/22 21/14 21/23 22/24 23/14 29/18
31/11 35/12 36/18 37/7 38/9 39/1
39/14 42/25 43/7 45/11 47/14 48/25
49/15 51/2 53/22 53/23 54/18 55/8
56/9 57/2 58/1 59/7 61/21 62/20 63/2
63/20 65/14 69/5 77/13 83/19 87/1
88/8 89/8 100/9 100/17 101/2
hereby [1] 104/3
herein [1] 20/18
Hey [3] 55/22 63/20 96/12
high [3] 76/18 91/1 91/3
high-resolution [1] 91/1
higher [1] 94/16
HILLS [1] 2/13

ER206

him [3] 58/20 99/14 100/5
his [17] 10/17 10/21 11/2 36/15 39/23
42/2 42/23 42/24 44/6 44/16 58/20
64/21 75/10 86/22 97/10 99/14 101/25
historically [1] 67/22
history [15] 17/13 18/2 21/15 24/14
44/4 44/15 45/2 46/19 80/4 86/19
91/13 98/9 98/12 98/25 99/4
holder [1] 22/16
Hollywood [1] 58/12
home [7] 19/11 20/6 28/3 60/24 73/14
79/25 80/22
homes [2] 18/11 26/9
honest [2] 57/1 59/21
Honor [101] 3/8 3/12 3/18 4/7 4/21 6/9
8/2 8/22 9/3 9/18 10/5 10/23 11/25
12/8 13/25 15/1 15/3 17/24 22/6 22/9
23/15 25/22 26/25 28/23 31/7 31/20
31/24 32/8 32/16 33/4 34/1 34/17
34/25 35/12 37/7 39/13 40/13 40/23
41/13 41/14 42/1 43/3 44/5 45/18
45/20 48/3 48/18 49/17 50/6 50/10
50/24 51/15 52/10 52/18 53/1 53/21
54/2 54/7 54/19 56/11 57/9 57/20 58/5
58/18 59/7 59/14 59/16 60/4 60/11
60/20 61/4 61/15 61/18 63/9 63/24
65/2 65/7 66/8 66/14 67/14 68/18 73/8
74/10 75/20 82/5 87/9 87/21 88/7
88/18 93/3 96/5 96/9 97/2 97/8 98/7
99/9 100/16 101/3 101/20 102/10
103/1
Honor's [1] 5/20
HONORABLE [1] 1/3
hope [1] 63/6
hoping [2] 6/25 61/8
hornet [1] 36/11
hornet's [3] 35/17 36/2 36/4
hour [5] 53/24 84/10 93/5 93/6 98/3
hours [4] 5/23 57/7 84/8 90/12
house [2] 45/4 80/13
household [8] 32/23 73/11 73/13 79/21
79/21 79/24 98/16 98/17
Houston [1] 35/20
how [22] 8/4 9/25 12/25 18/14 26/16
28/11 28/18 39/3 55/22 57/11 57/12
59/9 65/13 67/9 73/6 81/5 85/4 87/3
95/4 95/5 101/17 102/1
how-to [1] 55/22
however [1] 95/3
huge [1] 35/8
hundred [3] 37/9 53/7 77/14
hundreds [5] 12/11 18/17 78/13 85/2
85/2
hunger [1] 61/15
hungry [1] 61/14
Huntsman [3] 27/22 27/23 28/1
hurling [1] 35/1

I
I'll [1] 63/7
I'm [15] 3/8 7/22 12/23 13/8 24/21
31/19 61/16 64/1 65/14 68/22 73/5
82/20 91/4 93/7 93/8
idea [5] 28/9 38/8 62/17 75/24 95/10
ideal [1] 8/1
identical [3] 80/11 84/25 85/17
identifiable [1] 4/23
identified [1] 86/19
identify [1] 36/22
illegal [6] 29/8 29/9 40/25 41/2 43/11

48/14
image [1] 89/6
images [1] 90/23
imagination [1] 54/18
imagine [3] 29/4 53/21 77/14
immediate [1] 66/12
immediately [1] 80/19
immune [1] 20/11
immunity [3] 18/4 18/8 18/14
imperceptible [9] 32/18 32/19 32/21
32/22 49/5 73/10 79/20 79/22 98/22
implicit [1] 83/21
important [6] 42/1 43/3 54/5 56/21 81/4
94/9
importantly [1] 83/8
impose [1] 88/6
imposed [1] 76/10
impossibility [1] 26/20
impossible [1] 25/14
in 2000 [1] 62/9
in 2014 [1] 75/25
in 2015 [1] 36/5
in's [1] 30/23
in-home [1] 19/11
inadvertent [1] 45/12
inappropriate [1] 88/5
INC [6] 1/5 1/7 1/10 3/5 3/5 3/13
incapable [1] 78/3
incentives [1] 57/14
inclined [1] 93/6
include [2] 12/16 84/4
included [1] 20/17
includes [1] 12/11
including [8] 12/2 18/2 19/4 19/13 51/3
61/25 62/1 65/24
inclusion [1] 83/18
incorporate [1] 46/7
incorrect [3] 69/5 73/1 101/10
incorrectly [2] 81/12 92/4
increase [1] 59/1
increased [1] 90/12
incredible [1] 86/15
indeed [2] 25/15 67/3
independent [1] 4/24
individual [3] 92/10 92/12 96/25
individually [1] 4/22
individuals [2] 91/22 96/23
indulge [1] 28/21
indulgence [1] 9/19
indulging [2] 97/24 98/3
Industries [2] 18/23 22/7
industry [1] 21/17
ineffective [1] 15/15
inequitable [1] 59/14
inequitably [1] 58/2
inexcusable [1] 24/19
inexpensive [1] 69/2
inflight [1] 52/14
information [5] 12/6 12/7 42/19 82/2
100/14
infringe [1] 75/2
infringement [14] 20/23 21/22 22/14
32/17 32/18 38/12 41/2 74/13 74/17
75/6 87/11 87/12 87/14 87/15
infringements [3] 32/15 73/10 74/15
infringing [5] 49/4 98/15 98/16 98/18
102/11
initio [1] 25/9
injunction [14] 3/23 34/24 36/10 48/17
50/19 62/19 66/12 66/13 66/15 66/16

I

J

injunction... [4] 67/11 87/8 88/2 88/6
injunctive [1] 37/5
injured [2] 65/12 66/11
injury [20] 18/18 18/19 18/20 19/6
21/12 21/14 22/3 23/24 31/13 67/14
67/16 72/2 85/14 85/24 86/1 86/4
86/20 88/8 91/18 91/18
insert [1] 80/21
insisted [1] 9/8
installed [1] 8/25
instance [1] 71/12
instances [1] 72/5
instead [1] 85/1
instructions [1] 81/17
instructive [1] 65/2
intelligence [1] 11/12
intended [4] 17/14 80/2 97/5 97/11
intent [1] 84/21
intention [1] 61/13
intercept [2] 82/14 83/1
interest [5] 60/9 60/10 67/6 72/10
72/23
interested [1] 68/6
interesting [2] 67/9 78/25
interests [2] 19/21 47/10
interface [1] 49/22
interfered [1] 35/3
interfering [1] 62/18
intermediate [7] 49/10 49/12 49/16
49/20 73/25 78/3 78/5
Internet [1] 60/2
interoperate [1] 49/25
interplay [1] 23/12
intervened [1] 85/7
interviews [1] 69/18
intrinsic [1] 51/7
introduces [1] 32/12
investment [1] 56/25
investments [2] 62/11 62/12
investors [2] 56/25 58/20
invitations [1] 19/17
involved [3] 16/18 47/25 67/6
iPad [1] 80/24
irreparable [14] 38/21 40/12 57/18
63/14 67/13 67/16 67/20 71/23 72/2
85/14 85/24 86/1 86/4 88/8
irreparably [2] 66/11 67/23
is [472]
isn't [7] 33/14 38/2 45/18 54/10 60/15
63/25 95/25
issue [15] 9/13 10/3 16/4 16/10 16/13
23/2 23/7 26/12 38/1 38/10 42/25
65/15 89/14 98/9 99/1
issues [2] 13/16 102/23
it [271]
it's [105]
Item [1] 3/4
its [33] 4/23 7/16 8/4 8/6 17/5 22/16
42/18 53/20 54/11 59/18 64/13 64/17
65/23 66/1 66/18 66/19 70/24 71/18
72/8 72/11 72/13 74/18 76/14 76/20
77/3 79/19 82/2 84/22 86/12 92/21
95/4 95/5 102/23
itself [9] 8/10 33/22 38/21 39/2 39/21
47/3 48/16 87/7 95/16
iTunes [10] 34/4 34/5 38/24 56/1 63/19
94/7 94/7 94/14 94/16 94/24
ivi [1] 38/18

JAIME [2] 2/15 3/13
lack [1] 81/23
January [2] 64/13 64/16
landing [1] 57/10
January 2015 [1] 64/13
language [16] 9/6 12/19 24/23 27/15
join [1] 68/14
31/19 31/20 34/2 44/2 51/9 51/12
joined [1] 3/9
72/21 96/2 97/7 97/8 97/13 98/7
JR [1] 1/3
laptop [1] 80/23
judge [11] 1/3 20/16 20/20 34/5 40/14 largest [1] 9/5
43/18 45/21 46/9 46/17 47/16 62/9
last [5] 55/7 63/12 64/4 65/18 89/17
Judge Gutierrez's [1] 47/16
late [3] 65/18 66/13 66/15
Judge Kaplan [1] 46/9
later [1] 46/24
Judge Kaplan's [1] 45/21
launched [1] 64/13
Judge Patel [2] 43/18 62/9
law [39] 2/3 2/4 2/7 2/8 2/12 2/15 2/15
Judge Sullivan [1] 34/5
2/16 15/15 18/3 18/9 18/16 19/15
Judge Walter [1] 40/14
20/15 20/16 21/11 22/4 23/2 23/11
judgment [2] 36/25 87/6
23/13 25/2 25/24 31/13 34/2 36/8 36/8
judicial [2] 56/24 104/8
37/2 40/11 40/23 45/19 46/23 48/1
JUI [3] 1/23 104/14 104/15
49/20 51/2 52/5 55/14 57/21 57/23
July [4] 9/10 64/14 65/4 89/17
60/10
July 2005 [1] 9/10
lawful [3] 72/12 72/14 83/13
July 2015 [2] 64/14 65/4
lawfully [4] 19/15 19/22 21/25 28/3
jumbled [1] 94/10
lawsuit [1] 40/20
jump [3] 71/1 93/15 96/20
lawyers [1] 67/18
jumping [1] 14/20
lead [2] 27/21 91/20
June [1] 64/16
least [9] 6/17 11/18 12/5 26/17 30/25
jurisprudence [1] 18/17
51/13 52/20 63/12 74/3
jury [1] 11/10
leave [2] 24/9 53/14
just [77] 3/20 3/25 4/6 5/12 6/7 8/3 8/19 led [2] 46/3 46/3
8/21 10/2 10/7 10/17 11/4 13/4 13/16 LEDA [1] 2/8
14/13 14/16 16/13 26/6 28/10 28/19
left [2] 20/21 54/25
29/12 31/5 35/1 35/23 36/7 38/8 38/10 legal [10] 18/20 24/24 36/19 36/20
38/11 38/13 41/13 41/16 43/14 43/21
40/17 40/21 40/21 40/22 54/19 77/1
45/18 45/25 46/12 51/25 53/18 54/1
legally [3] 4/5 26/18 58/17
54/11 54/13 56/7 56/10 56/14 56/18
legislation [1] 80/7
60/19 61/20 63/1 63/11 63/13 63/16
legislative [14] 17/13 18/2 24/14 44/4
63/22 65/7 66/21 68/1 70/4 72/21
44/15 44/23 45/1 46/18 80/4 91/13
72/25 72/25 73/19 77/18 81/8 85/20
98/8 98/12 98/25 99/4
87/1 87/20 89/10 89/11 90/24 91/5
legislator [1] 44/21
92/6 92/8 93/7 93/13 94/3 95/12 96/9 legitimately [1] 38/25
96/15
length [3] 26/21 72/16 79/12
justify [3] 24/18 37/21 59/1
less [1] 6/25
let [28] 5/12 5/19 10/3 11/6 11/14 13/3
K
16/2 16/11 26/11 29/23 31/8 31/23
Kaplan [1] 46/9
33/13 35/16 35/21 36/1 36/3 41/12
Kaplan's [1] 45/21
45/13 52/22 63/1 67/25 72/15 73/20
keep [3] 12/4 73/20 84/7
79/16 81/7 85/24 93/7
keeping [1] 85/11
let's [10] 4/6 6/1 6/10 11/7 37/25 68/12
keeps [2] 54/11 81/13
82/11 82/22 94/10 94/14
KELLY [2] 2/7 3/8
letter [8] 36/18 37/9 45/8 64/14 65/4
kept [2] 88/3 102/7
71/24 74/19 89/17
keys [1] 43/20
letters [3] 36/13 36/14 36/15
kidding [1] 3/20
level [1] 62/24
kimono [1] 57/1
leverage [2] 35/10 59/13
kind [8] 11/14 19/2 19/6 19/6 25/15
lex [1] 18/21
87/24 92/24 97/16
liability [1] 62/16
KLAUS [23] 2/7 3/9 10/1 11/9 14/24
liable [1] 49/4
15/17 16/3 16/4 26/12 37/23 61/16
liberally [1] 99/10
63/12 64/20 64/24 72/16 81/19 82/21 Librarian [2] 47/7 47/12
83/23 93/8 93/11 99/8 100/21 101/10 license [13] 34/16 35/9 41/5 50/13 69/4
Klaus's [2] 84/16 85/13
69/23 69/24 71/2 72/11 88/20 88/21
knell [1] 77/12
88/25 101/6
knew [2] 21/10 71/10
licensed [1] 26/19
know [23] 3/25 8/20 11/21 11/25 12/9 licensee [1] 64/5
20/19 29/9 30/19 30/23 30/24 53/10
licensees [5] 38/23 39/22 63/15 63/18
55/7 55/23 60/18 63/19 65/13 68/1
64/9
68/1 68/5 68/7 68/8 71/9 77/19
licenses [4] 30/15 38/25 59/12 72/6
knowing [1] 20/9
licensing [3] 35/10 58/12 59/13
knowledgeable [1] 73/5
light [1] 21/1
known [2] 36/14 70/22
like [26] 10/25 11/10 23/20 23/25 36/1
knows [5] 22/9 65/16 69/25 80/5 87/21 38/23 38/24 40/8 43/12 46/12 48/19

ER207

L

L

making [24] 18/8 19/25 27/12 27/16
32/17 32/19 32/21 32/22 41/1 49/5
like... [15] 50/6 52/23 55/20 55/20 56/1
49/10 50/1 51/14 60/6 72/16 73/10
56/2 62/8 63/22 72/20 82/16 88/10
73/24 74/1 74/4 79/19 83/15 83/16
93/3 93/14 94/1 96/17
96/5 99/5
likelihood [1] 91/21
manger [3] 85/20 85/21 85/21
limit [2] 91/14 100/24
Manifestly [1] 59/14
limited [8] 37/8 44/3 54/25 71/9 73/12
manner [3] 23/10 96/24 98/23
76/15 79/23 98/20
many [13] 9/4 11/19 27/3 28/22 37/10
limits [1] 15/23
38/18 53/25 78/12 79/13 79/13 85/4
line [8] 19/4 62/21 71/1 74/14 93/13
101/17 102/1
93/17 94/4 95/12
market [4] 54/6 54/9 54/16 95/20
list [1] 47/11
marketed [2] 56/7 57/13
listed [1] 37/13
marketing [1] 64/7
lists [1] 17/9
markings [1] 36/17
literal [1] 24/8
MARQUART [4] 2/14 2/15 3/14 3/14
litigate [1] 36/25
Mary [1] 74/20
litigation [7] 20/12 27/8 35/24 35/25
Mary Beth [1] 74/20
68/14 71/7 76/6
mass [1] 50/12
litigator [1] 36/15
massive [1] 55/13
little [14] 29/15 35/12 38/1 79/9 81/15
master [5] 29/11 29/12 29/22 49/15
82/23 83/9 83/24 85/2 85/4 87/22 88/9
50/12
88/11 102/21
Matroska [1] 78/2
live [2] 36/4 61/15
matter [6] 11/24 15/15 77/1 92/15
LLC [1] 60/2
102/22 104/6
LLP [3] 2/3 2/7 2/14
maximize [1] 69/7
loath [1] 37/4
maximum [2] 79/12 87/14
lock [1] 43/20
may [35] 9/18 13/11 15/16 25/22 31/25
locks [2] 43/20 46/23
41/12 47/1 51/9 51/9 60/20 61/10
log [1] 64/22
61/14 72/20 86/1 88/15 89/24 91/2
logical [2] 84/23 102/14
93/4 93/12 93/20 93/20 94/5 94/8 94/8
long [10] 6/5 7/8 9/20 10/19 19/4 49/2
94/14 94/22 94/24 94/25 95/1 95/6
54/24 62/8 75/6 92/22
95/8 95/13 95/14 95/15 100/25
longer [2] 90/1 90/8
Maya [1] 51/4
look [10] 12/15 31/19 34/2 35/16 38/17
maybe [3] 62/10 86/7 92/7
45/20 53/23 54/13 54/14 91/2
MDY [4] 18/23 22/7 24/6 47/22
looked [1] 6/20
me [42] 3/13 4/3 5/12 5/19 6/8 11/6
looking [1] 61/23
11/14 13/3 13/12 14/1 14/21 16/2
looks [3] 21/11 44/22 44/23
16/11 26/11 28/16 28/20 28/21 29/23
LOS [5] 1/19 1/24 2/5 2/17 3/1
31/8 31/23 33/13 35/21 38/6 41/12
loss [2] 38/9 59/1
45/13 52/22 61/5 61/8 63/1 67/25
lost [1] 62/14
72/15 73/1 73/4 73/20 77/23 79/16
lot [10] 3/19 3/22 31/11 36/5 36/5
81/7 85/24 88/14 93/7 99/20 102/1
54/18 58/12 61/6 64/1 72/24
mean [5] 12/20 35/17 60/24 68/3 77/20
lots [3] 40/20 54/15 69/17
meaning [4] 25/1 46/14 57/7 70/6
low [1] 62/23
meaningless [1] 25/21
lower [2] 9/3 96/6
means [12] 15/18 16/7 21/6 31/18 42/8
LTD.LLC [1] 1/5
42/21 49/10 59/2 65/23 73/19 102/15
LUCASFILM [1] 1/5
102/18
meantime [1] 36/11
M
measure [10] 14/9 15/20 15/22 25/17
machine [1] 28/4
made [24] 10/17 18/3 19/9 21/21 27/3 41/19 42/8 42/10 42/16 42/17 74/7
measures [3] 42/25 43/9 85/10
29/11 30/12 33/10 33/24 34/6 39/8
mechanism [2] 47/6 82/1
42/23 44/5 46/21 48/11 48/17 49/13
Medical [1] 91/16
56/16 59/23 59/24 65/16 85/16 98/5
meets [2] 16/19 17/7
98/21
MEI [3] 1/23 104/14 104/15
Magazines [1] 51/4
Meldahl [4] 42/24 43/5 43/8 75/17
magnitude [1] 62/3
member [5] 44/25 73/11 79/20 92/11
mail [4] 58/18 67/2 67/4 102/4
92/12
main [1] 58/20
members [1] 6/18
major [2] 67/1 67/15
make [34] 4/1 4/9 4/25 8/3 13/4 13/16 memory [1] 63/13
mentioned [1] 65/1
14/13 20/24 24/24 28/19 33/11 39/5
merited [1] 62/13
40/10 42/2 47/23 48/21 49/7 50/2
messages [2] 67/3 67/4
53/18 59/16 63/16 63/23 77/7 77/10
method [1] 34/11
77/15 78/15 79/22 81/5 83/20 83/22
MGM [3] 43/16 67/2 67/5
84/21 87/7 94/3 96/7
middle [1] 52/13
makes [12] 5/7 5/14 8/4 32/22 37/4
might [20] 7/14 11/11 20/13 21/18
37/20 44/3 49/22 59/17 59/18 90/20
21/19 24/10 36/22 69/15 75/7 78/10
95/4

ER208

78/25 79/7 79/13 80/23 80/23 80/24
87/7 90/16 90/19 96/2
Millennium [1] 13/7
million [11] 38/12 57/4 60/1 60/4 62/3
62/6 62/10 66/21 87/2 87/20 87/23
million and [1] 57/4
millions [3] 62/11 62/11 86/24
mind [2] 15/3 26/15
minds [1] 40/22
minimis [2] 18/21 68/14
minimum [1] 76/9
minute [4] 38/1 63/3 63/8 96/21
minutes [6] 9/20 13/12 51/19 54/1 91/5
93/4
mischaracterize [1] 72/10
misheard [1] 93/12
miss [2] 63/16 100/7
Miss Bennett's [1] 100/7
missed [1] 63/23
missing [1] 14/1
MISSION [1] 2/8
mistakes [1] 76/20
misuse [9] 22/9 22/13 22/15 22/17
22/18 22/19 34/18 34/20 48/7
model [7] 4/2 7/13 13/19 34/11 35/7
58/24 58/24
modicum [1] 11/11
modification [3] 9/11 74/22 74/23
modified [1] 9/9
modify [1] 89/19
moment [9] 8/17 27/19 42/13 46/8 63/2
65/1 76/5 93/10 93/18
MONDAY [2] 1/17 3/1
money [9] 8/4 33/1 38/8 39/6 40/5 41/8
50/2 60/6 87/24
Monge [2] 51/4 51/21
month [3] 86/17 86/17 86/19
month-over-month [1] 86/17
monthly [1] 87/19
months [3] 71/11 86/13 86/17
more [18] 7/16 8/14 8/15 11/4 11/18
11/19 25/6 37/10 37/20 38/3 38/4
38/14 62/10 65/5 68/25 76/12 101/25
102/6
morning [5] 3/8 3/12 3/22 27/3 31/11
most [7] 9/5 45/20 54/5 55/21 58/15
68/18 68/19
motion [16] 3/23 23/15 55/1 67/1 67/15
69/6 69/8 69/11 69/15 69/21 73/12
73/15 73/22 79/23 83/14 98/21
move [1] 68/12
movie [107]
movies [29] 8/12 9/4 27/12 27/17 30/16
50/16 51/6 51/6 51/10 53/3 57/12 65/3
65/5 71/16 72/17 73/2 73/2 73/6 89/10
90/15 90/17 92/6 92/21 92/22 93/16
95/21 96/1 101/15 101/18
moving [3] 34/4 66/23 91/6
Mr [3] 42/23 64/1 93/2
Mr. [87] 4/1 10/1 10/7 10/17 10/21
10/25 11/6 11/9 11/15 14/18 14/24
15/4 15/7 15/17 16/3 16/4 16/15 17/11
26/11 26/12 26/21 27/2 27/22 28/17
28/25 30/8 30/20 31/8 33/6 34/18
36/13 36/14 36/21 37/9 37/23 39/23
42/2 44/14 45/14 46/6 53/10 56/16
58/7 58/9 58/19 59/24 61/2 61/16
63/11 63/12 64/20 64/24 67/25 72/16
79/16 81/10 81/19 82/21 83/23 84/16
85/13 86/5 86/5 86/21 87/3 93/8 93/11

M
Mr.... [20] 93/12 94/10 95/10 95/18
97/10 97/20 98/2 99/8 99/10 99/14
99/17 99/19 99/24 99/24 100/9 100/16
100/21 100/22 101/10 101/24
Mr. and [1] 99/24
Mr. Cittadine [3] 39/23 86/5 86/5
Mr. Cittadine's [1] 86/21
Mr. Harmon [9] 30/20 36/21 58/7 58/9
58/19 99/14 99/19 99/24 100/9
Mr. Harmon's [1] 99/17
Mr. Klaus [21] 10/1 11/9 14/24 15/17
16/3 16/4 26/12 37/23 61/16 63/12
64/20 64/24 72/16 81/19 82/21 83/23
93/8 93/11 99/8 100/21 101/10
Mr. Klaus's [2] 84/16 85/13
Mr. Quinto [44] 4/1 10/7 10/17 10/25
11/6 11/15 14/18 15/4 15/7 16/15
17/11 26/11 26/21 27/2 27/22 28/17
28/25 31/8 33/6 34/18 36/14 42/2
44/14 45/14 46/6 53/10 56/16 59/24
61/2 63/11 67/25 79/16 81/10 87/3
93/12 94/10 95/10 97/10 97/20 98/2
99/10 100/16 100/22 101/24
Mr. Quinto's [5] 10/21 30/8 36/13 37/9
95/18
much [4] 12/25 39/3 48/18 101/8
multiple [2] 33/19 100/10
MUNGER [4] 2/3 2/7 3/9 64/21
music [2] 12/22 21/16
must [7] 9/15 15/10 15/11 16/16 16/17
21/12 86/2
muted [3] 12/20 12/20 12/21
my [21] 3/9 7/5 11/7 28/21 28/22 36/12
49/14 55/2 60/19 61/12 63/3 63/13
64/14 65/4 72/25 79/22 89/17 96/4
98/11 101/1 102/21
myself [1] 100/24

N
name [1] 93/8
Napster [3] 62/6 62/9 62/24
narration [2] 10/9 10/10
narrator [1] 10/15
nature [4] 35/25 51/13 53/2 53/2
necessarily [2] 44/18 73/16
necessary [1] 84/12
necessity [2] 4/17 25/18
need [11] 11/8 24/1 45/9 58/25 59/5
72/24 81/10 88/5 89/7 96/17 100/23
needed [3] 21/5 21/5 75/1
needle [1] 63/16
negate [1] 33/19
negotiate [3] 35/9 38/25 59/12
negotiations [3] 35/11 59/13 94/21
nest [3] 35/17 36/2 36/4
Netflix [4] 94/2 94/5 95/22 95/24
Netflixes [1] 95/18
Network [1] 47/18
neutral [2] 54/22 55/9
never [4] 7/18 21/10 35/2 89/14
new [10] 17/19 23/12 25/24 34/6 44/12
46/2 55/23 69/10 80/5 90/15
New York [1] 46/2
news [1] 37/15
next [6] 6/23 7/3 7/6 7/7 7/11 41/23
nexus [1] 19/2
night [1] 94/17
nightly [1] 94/25
Ninety [2] 53/12 53/13

ER209

Ninety-six percent [2] 53/12 53/13
Ninth [15] 18/23 22/12 22/23 22/25
37/4 47/24 47/25 50/20 51/21 57/22
57/24 62/13 62/14 75/4 89/2
Ninth Circuit [14] 18/23 22/23 22/25
37/4 47/24 47/25 50/20 51/21 57/22
57/24 62/13 62/14 75/4 89/2
no [91] 1/9 3/4 3/20 5/2 5/16 6/5 7/16
13/6 13/8 14/8 14/8 14/16 16/21 18/18
18/18 18/19 19/7 20/21 21/23 22/2
22/3 23/2 23/23 24/21 26/4 27/17
27/24 30/2 31/4 31/13 33/9 33/10 34/6
34/21 38/15 41/10 41/18 45/9 46/21
47/12 47/20 48/2 48/3 48/4 48/6 48/13
51/15 51/19 52/23 53/19 55/11 55/14
57/22 60/13 61/10 61/12 67/15 67/16
67/19 68/2 73/4 73/21 74/6 74/17
74/18 74/22 74/23 74/25 75/5 75/16
75/18 75/22 77/2 82/15 83/13 85/19
85/20 88/5 88/8 88/24 89/13 89/13
89/13 90/1 90/7 93/3 100/19 101/12
101/22 102/7 104/15
nobody [3] 52/18 52/18 52/22
noises [1] 12/21
non [2] 18/21 98/18
non-infringing [1] 98/18
none [2] 31/14 31/14
nonsense [3] 13/13 92/9 93/1
not [167]
note [11] 5/19 6/3 16/13 22/23 23/2
64/18 66/9 66/25 68/13 80/3 85/25
noted [2] 11/14 74/11
notes [2] 27/4 102/21
nothing [15] 21/7 25/18 27/6 28/9 45/5
49/12 49/25 50/13 54/20 56/20 59/15
72/12 83/8 90/23 90/24
notice [2] 56/24 88/1
noticeably [1] 97/12
notices [1] 7/20
notion [3] 25/6 30/7 51/11
notwithstanding [6] 19/12 32/13 46/13
66/10 66/21 86/18
NOVEMBER [4] 1/17 3/1 37/17 86/18
now [46] 6/15 9/13 10/17 15/4 15/16
18/12 25/18 30/23 35/19 39/25 41/22
42/23 43/24 45/15 47/5 48/1 53/9
57/16 63/12 68/19 71/22 72/9 75/19
77/6 78/17 78/20 81/6 83/12 83/23
83/24 84/6 84/16 85/24 86/1 86/12
87/19 87/23 88/12 89/24 90/7 90/10
90/11 90/23 92/4 101/24 102/7
nowhere [2] 27/3 56/17
nudity [2] 68/20 96/2
number [19] 3/24 12/8 27/1 27/2 29/22
41/16 43/4 44/9 50/18 53/24 64/15
64/23 68/23 77/9 78/6 78/14 84/3 87/6
101/10
Number 1 [1] 29/22
Number 97,322 [1] 53/24
number one [2] 43/4 50/18
numbers [1] 84/24
numerous [2] 18/1 79/8

O
object [3] 10/6 10/21 14/24
objecting [1] 65/24
objection [2] 11/13 92/5
objectionable [4] 10/13 78/10 79/7
96/25
oblivious [1] 96/8

obtain [3] 25/7 36/10 41/6
obtaining [1] 76/21
obtains [1] 102/15
obvious [1] 74/25
obviously [5] 18/12 21/4 65/11 74/23
77/7
occupies [1] 85/21
occurred [3] 71/5 71/6 71/7
occurring [3] 21/16 21/24 22/18
October [1] 66/13
off [11] 3/25 36/7 36/24 60/19 61/12
64/16 76/8 87/5 99/12 99/23 99/23
offended [1] 96/2
offensive [1] 91/15
offer [8] 5/14 30/12 30/13 58/16 69/23
70/16 72/8 94/15
offered [1] 19/13
offering [12] 65/3 65/5 65/16 65/19
65/23 66/7 66/18 66/20 71/18 86/12
87/21 92/23
offers [5] 23/5 59/10 59/10 76/15 76/16
officer [1] 10/10
OFFICIAL [1] 1/23
often [1] 9/4
Oh [1] 61/10
okay [16] 5/6 6/11 6/13 13/2 14/1 16/2
39/15 41/12 63/25 64/11 70/5 77/15
78/19 81/12 91/4 102/9
OLSON [3] 2/3 2/7 3/9
once [7] 36/12 77/18 78/20 78/21
78/22 88/12 95/3
one [72] 3/17 5/3 5/3 5/10 7/12 10/6
12/11 16/10 18/7 21/11 21/18 24/13
25/6 27/11 27/13 27/20 27/21 28/17
28/23 29/5 29/6 29/11 29/12 29/25
30/11 30/20 33/4 36/21 38/18 40/1
40/14 40/18 42/7 43/4 44/22 44/23
46/25 48/16 49/14 49/15 50/18 53/23
54/7 55/2 57/12 58/6 62/8 63/1 63/12
68/3 68/4 68/25 71/5 77/19 79/4 80/6
83/18 85/1 85/4 85/11 85/17 87/25
92/6 92/6 92/25 94/12 94/15 94/17
97/5 99/1 99/9 99/21
one-night [1] 94/17
one-to-one [1] 5/3
ones [4] 38/13 40/4 61/24 91/2
ongoing [1] 37/21
only [27] 5/10 12/20 20/2 34/10 40/3
40/4 44/24 55/24 60/15 70/12 70/13
75/21 76/17 76/21 77/10 80/12 80/14
83/20 86/4 92/14 97/25 98/12 98/12
98/25 98/25 99/4 101/7
oOo [1] 103/5
open [5] 12/14 24/9 54/25 57/1 59/21
opened [1] 64/19
opening [8] 3/20 8/20 11/22 56/3 89/12
89/14 92/9 96/15
opens [2] 90/14 90/17
operate [4] 26/18 50/3 50/15 92/17
operates [1] 75/1
operating [7] 10/10 16/24 17/5 18/5
19/15 54/11 76/9
operation [1] 42/18
operator [1] 3/15
opinion [4] 23/18 39/16 46/3 75/4
opportunity [5] 11/1 11/4 13/15 63/5
63/7
opposed [2] 19/16 84/19
opposing [5] 14/15 14/22 27/4 64/4
75/9

O

page 941 [1] 22/8
page 951 [2] 18/24 22/24
opposite [1] 44/22
pages [3] 32/16 99/18 99/18
opposition [3] 43/4 45/17 53/23
pages 273 [1] 99/18
option [1] 90/8
paid [3] 5/10 5/13 60/2
options [1] 79/5
pains [2] 65/8 65/9
order [6] 4/9 58/16 66/10 80/20 84/8
palpitations [1] 6/21
102/24
paper [1] 63/17
orders [1] 62/3
papers [15] 3/24 13/17 13/18 24/20
ordinary [2] 42/17 87/12
27/4 31/5 31/14 31/15 43/17 43/18
original [7] 33/20 33/22 73/25 81/21
45/2 45/17 83/4 89/21 96/10
82/2 83/10 83/16
paragraph [3] 32/12 58/11 58/21
other [45] 7/19 10/23 13/3 22/8 23/17
paragraph 11 [1] 32/12
24/15 31/3 31/6 37/24 37/25 38/22
parents [2] 90/16 90/18
40/18 41/5 41/7 45/1 47/5 47/20 48/17
PARK [1] 2/16
49/17 50/17 54/15 55/17 59/16 60/20
part [6] 7/22 10/13 14/16 75/8 80/3
60/22 61/18 62/25 66/3 67/11 68/2
80/3
71/1 71/6 73/23 75/21 75/22 79/25
particular [11] 7/14 10/11 33/23 41/22
83/19 84/8 88/1 92/1 93/19 95/17
49/21 51/20 55/6 64/19 94/19 94/20
95/19 96/7 100/17
95/13
others [1] 29/13
parties [2] 23/6 35/23
otherwise [2] 15/23 42/9
parts [3] 9/5 78/5 78/7
our [23] 15/13 31/5 38/9 38/23 39/5
party [5] 22/18 79/22 82/13 82/14 91/6
39/9 39/20 40/1 43/5 43/16 43/18 45/2
passed [1] 27/6
56/23 58/14 58/25 59/4 60/6 76/7
past [1] 48/11
89/20 96/3 96/10 96/15 99/16
Patel [2] 43/18 62/9
ourselves [2] 40/9 59/8
pay [13] 7/7 38/16 38/20 40/5 67/18
out [50] 7/20 8/19 10/19 11/12 12/5
70/20 70/20 70/23 77/21 77/24 87/5
12/16 20/25 22/6 23/6 27/22 29/10
87/24 94/16
30/10 31/1 32/9 34/16 35/20 43/12
paying [3] 56/1 60/7 63/20
47/5 49/18 51/12 51/19 51/24 51/25
Pediatric [1] 91/17
52/2 52/4 52/8 52/16 53/14 54/23
pendency [1] 66/16
54/24 55/4 55/23 57/3 59/20 59/22
pending [4] 14/5 62/13 80/6 80/10
60/11 60/16 62/5 62/14 66/4 70/8
penumbra [1] 25/3
71/25 75/22 79/4 80/7 85/10 92/6 92/8
people [32] 6/21 7/14 7/19 7/24 7/25
92/19 96/10
8/24 8/25 11/16 25/24 26/7 27/13
out's [1] 30/24
27/16 35/19 36/16 51/7 51/18 52/20
outlines [1] 39/11
53/11 54/15 55/25 57/15 57/15 57/16
outrageous [1] 9/5
60/3 60/12 78/14 92/2 97/25 101/14
outset [3] 25/10 25/11 33/5
101/18 102/1 102/6
outside [1] 4/24
per [4] 68/1 78/21 78/22 87/15
outtakes [3] 9/4 9/7 69/18
perceived [1] 36/24
over [24] 6/4 28/5 29/18 29/21 29/21
percent [19] 8/11 8/13 11/15 53/7
30/22 51/9 52/21 66/17 66/20 67/3
53/12 53/13 57/3 58/25 64/15 68/25
70/22 81/25 81/25 86/13 86/17 87/22
68/25 89/8 89/8 98/1 101/11 101/14
89/8 90/12 91/17 93/5 97/17 101/13
101/16 101/19 101/23
102/7
percentage [2] 10/16 54/24
over-the-air [1] 70/22
Perfect [1] 50/20
overcome [1] 67/7
perfectly [2] 69/8 102/14
oversight [2] 45/3 46/10
performance [11] 32/23 50/4 50/5 50/9
owing [1] 92/2
73/13 79/24 98/14 98/16 98/17 98/22
own [9] 7/8 7/14 13/22 28/3 36/6 60/3
102/11
74/18 85/9 95/4
performances [1] 41/3
owned [6] 10/16 10/19 56/18 60/3
performed [1] 98/21
101/11 101/12
performing [2] 20/1 30/5
owner [11] 15/21 15/24 16/1 16/17
perhaps [3] 21/17 21/18 92/5
16/21 40/7 42/10 42/20 43/2 75/6
period [6] 22/17 40/3 61/8 84/10 95/14
92/11
98/3
owners [5] 17/10 30/15 39/7 60/7 94/22
permanent [4] 49/13 81/13 91/18 94/24
owns [5] 4/23 5/5 7/11 56/15 97/24
permanently [5] 10/16 10/19 56/18
101/11 101/12
P
permissible [1] 23/24
p.m [2] 63/10 103/4
page [12] 18/24 22/8 22/24 41/24 44/8 permission [2] 21/7 58/4
45/24 57/10 96/15 96/19 100/5 100/6 permit [2] 26/2 26/3
perpetuity [2] 6/6 6/14
104/7
person [11] 5/4 5/4 7/11 14/8 21/18
page 17 [1] 96/19
21/18 21/20 36/14 41/18 74/6 82/3
page 277 [1] 100/5
persons [1] 14/8
page 322 [1] 45/24
perspective [3] 26/17 34/10 51/14
page 70 [1] 100/6
persuading [1] 65/25
page 9 [1] 96/15

ER210

Peters [2] 45/8 74/20
photo [2] 89/3 89/4
photograph [3] 51/20 89/5 91/1
photographs [1] 91/2
picture [15] 55/2 67/1 67/15 69/6 69/8
69/11 69/15 69/22 69/23 73/13 73/15
73/22 79/23 83/14 98/21
pictures [1] 37/18
pie [1] 62/20
pirate [5] 65/12 86/6 86/7 86/8 86/24
pirates [3] 86/10 86/22 86/24
place [2] 47/6 56/13
placed [2] 4/19 78/16
plain [3] 34/1 44/16 44/24
plainly [5] 29/7 40/24 42/14 50/25 99/3
plaintiff [2] 17/12 23/9
plaintiffs [8] 1/8 2/2 3/11 20/17 20/18
22/19 99/10 99/21
plaintiffs' [4] 59/8 67/12 68/4 86/25
plan [2] 35/6 35/6
plane [1] 52/13
planned [1] 65/19
platform [1] 59/5
play [7] 3/16 28/8 30/14 30/15 33/13
38/24 76/23
player [2] 60/24 80/21
playing [2] 23/5 34/14
pleaded [1] 87/4
pleadings [1] 42/12
please [4] 3/6 26/13 37/19 57/15
plenty [1] 87/23
plural [1] 60/15
plus [8] 43/9 65/16 65/19 66/6 66/18
66/20 76/23 87/21
point [44] 6/3 7/5 18/8 18/13 21/1 22/6
24/21 24/23 25/10 28/22 30/8 34/17
38/22 40/13 42/15 43/3 43/7 44/20
45/1 47/2 47/5 49/17 53/2 53/18 55/17
56/3 56/21 59/16 62/5 65/11 69/22
73/1 73/18 76/12 79/11 83/8 91/4 96/4
96/9 99/4 99/9 102/1 102/6 102/10
pointed [7] 30/10 49/18 57/3 59/20
60/11 71/4 96/10
pointing [1] 35/3
points [9] 10/6 10/24 31/4 31/8 37/25
39/24 50/18 54/7 95/2
POMERANTZ [2] 2/3 3/11
portion [3] 81/2 81/3 81/4
portions [4] 51/23 73/12 79/23 98/20
posed [1] 68/10
position [4] 26/23 29/24 52/7 88/12
positive [1] 68/22
possibility [1] 22/2
possible [5] 12/12 21/22 59/6 65/23
75/14
potential [2] 21/23 38/11
potentially [1] 77/12
power [1] 21/8
PowerPoint [1] 14/22
practical [2] 26/24 92/15
preamble [1] 32/12
precedence [1] 61/24
precise [2] 14/6 100/9
precisely [2] 23/14 25/10
preferences [1] 80/17
prejudice [1] 85/14
preliminarily [1] 85/25
preliminary [11] 3/23 34/24 36/10
50/19 66/12 66/13 66/15 66/16 67/11
88/2 88/6

P

provisions [4] 17/21 32/13 46/13 100/1
public [13] 18/10 20/2 41/4 50/4 50/5
preparing [1] 81/8
50/9 50/12 60/9 60/9 64/17 77/8 81/6
prerequisite [1] 22/21
86/13
present [1] 61/7
publicly [2] 20/2 30/5
Presley [1] 51/5
pulled [1] 66/4
press [2] 37/15 77/16
pulls [1] 82/2
presume [1] 34/22
purchase [9] 4/5 5/15 19/22 28/15
presumed [1] 86/2
33/17 33/20 33/21 94/23 95/7
presumption [1] 54/8
purchased [8] 7/17 7/18 21/25 28/3
prevail [1] 50/22
28/13 29/24 82/3 90/4
prevent [1] 65/22
purchaser [1] 73/2
prevents [1] 15/22
purchases [1] 34/4
price [8] 5/21 5/22 7/5 9/3 59/10 94/17
purchasing [2] 76/21 92/12
96/6 96/8
purpose [9] 17/18 44/11 51/7 51/22
prices [1] 6/20
66/6 89/7 90/22 90/25 96/21
prima [1] 24/11
purposes [6] 4/15 15/3 16/8 31/18
principal [1] 23/22
56/19 71/6
principals [1] 39/6
pursuant [1] 104/3
principles [1] 77/6
pursue [1] 58/3
printing [1] 77/16
put [31] 23/4 28/4 28/5 29/11 29/15
privacy [2] 18/11 26/9
29/25 31/1 31/6 33/10 33/18 34/21
private [7] 19/11 64/13 73/11 73/14
34/25 41/15 42/2 45/8 47/6 48/6 48/22
79/21 79/21 79/25
51/8 55/4 55/18 55/18 55/21 56/12
privilege [1] 64/22
58/6 73/3 78/4 81/14 99/16 100/20
privileged [1] 67/4
101/2
probably [1] 6/17
puts [2] 30/22 81/22
problem [9] 35/19 35/20 67/7 80/3 80/4
putting [2] 14/19 15/15
83/20 83/20 85/7 91/12
problems [3] 7/13 68/10 89/18
Q
proceeding [2] 47/7 91/7
quantities [1] 84/24
proceedings [4] 1/16 11/13 103/4
question [19] 10/24 11/2 24/9 26/4
104/6
26/16 34/8 43/25 48/1 52/5 53/9 53/15
process [9] 10/15 12/18 42/19 77/25
53/16 54/10 56/8 63/12 86/23 93/11
81/7 81/8 81/11 81/11 84/19
98/13 99/18
production [1] 72/18
questions [13] 3/25 4/2 11/7 13/3 26/14
profanity [2] 8/18 11/23
28/18 35/22 37/24 41/7 41/10 61/19
professor [1] 6/22
72/25 93/7
profit [3] 20/8 20/10 51/1
quick [1] 67/22
profits [1] 90/12
quicker [1] 96/12
program [2] 57/14 73/23
quickly [4] 50/24 65/13 85/5 91/2
programs [2] 49/23 49/25
QUINTO [49] 2/12 3/13 4/1 10/7 10/17
prohibit [1] 83/15
10/25 11/6 11/15 14/18 15/4 15/7
prohibited [4] 19/25 73/24 74/1 83/16
16/15 17/11 26/11 26/21 27/2 27/22
prohibitively [2] 77/11 84/18
28/17 28/25 31/8 33/6 34/18 36/14
prohibits [1] 26/3
42/2 42/23 44/14 45/14 46/6 53/10
projected [1] 37/10
56/16 59/24 61/2 63/11 64/1 67/25
promote [1] 57/8
79/16 81/10 87/3 93/2 93/12 94/10
promoting [1] 96/7
95/10 97/10 97/20 98/2 99/10 100/16
promulgated [1] 47/13
100/22 101/24
prong [1] 88/11
Quinto's [5] 10/21 30/8 36/13 37/9
propensed [1] 91/20
95/18
proposition [4] 48/7 86/6 86/8 88/19
quite [6] 5/20 13/25 15/14 24/15 44/9
prospectus [1] 56/25
65/15
protect [5] 16/7 16/16 19/19 43/1 46/23
quote [1] 60/19
protected [10] 14/11 15/11 16/22 19/20
quoted [1] 24/23
19/24 20/4 20/11 41/21 42/4 74/8
protection [8] 15/19 16/6 22/21 25/8
R
42/25 43/9 53/4 102/17
raise [2] 48/25 50/17
protects [2] 15/21 42/22
raised [11] 9/13 27/2 31/9 33/5 43/4
prove [1] 87/11
43/5 43/15 66/20 77/9 87/22 92/4
proved [2] 86/2 87/13
raises [2] 48/25 86/23
proverbial [1] 66/17
rampant [1] 21/16
provide [10] 17/21 18/4 18/4 18/13
range [2] 62/1 62/23
19/18 20/9 25/4 60/20 75/14 100/11
rates [1] 59/1
provided [6] 10/8 28/2 32/3 69/3 75/2 rather [3] 9/3 58/3 66/12
76/13
rationale [1] 66/24
provider [1] 69/3
ray [12] 5/22 29/4 43/1 43/10 69/17
provides [4] 16/18 73/9 73/21 74/12
70/10 70/18 71/15 72/7 76/18 81/24
providing [1] 27/11
92/19
provision [3] 14/6 46/2 48/13

ER211

rays [1] 58/13
reach [2] 21/20 24/1
reached [1] 71/25
read [2] 17/25 89/21
readable [1] 83/6
readily [2] 84/22 85/4
reading [18] 14/7 15/19 16/5 22/12
23/1 23/20 23/25 31/5 31/5 41/18
43/22 43/22 96/11 96/15 98/15 99/20
100/5 100/8
real [2] 8/23 12/18
reality [3] 29/19 36/4 36/12
really [16] 8/18 26/16 26/23 33/14
35/25 38/2 53/19 55/20 57/2 60/12
60/15 67/23 76/16 88/24 95/9 101/4
RealNetworks [1] 43/17
reason [12] 22/22 31/15 34/18 35/5
49/5 51/16 55/11 55/14 74/25 85/6
89/16 96/23
reasonable [4] 61/8 61/23 77/8 87/24
reasons [7] 13/14 24/12 33/4 38/7
69/25 75/9 88/7
rebut [1] 54/9
receive [1] 38/25
received [1] 36/13
recess [4] 63/3 63/8 63/10 103/3
recitation [1] 72/24
recognized [3] 18/13 20/25 40/11
recommended [1] 74/24
reconcile [1] 18/14
reconstitute [1] 82/15
record [12] 3/7 10/20 25/5 35/1 45/9
56/17 56/20 64/8 71/7 72/3 98/13
101/23
records [2] 34/3 88/4
Redbox [1] 58/17
ReDigi [2] 34/3 88/1
refer [1] 15/17
reference [5] 10/18 25/6 42/23 46/7
56/17
referring [3] 23/21 75/19 75/23
reflect [2] 18/22 83/10
reflected [2] 76/12 91/13
reflects [2] 64/22 74/2
refused [1] 19/17
Register [4] 19/14 45/6 45/8 74/19
Regulation [6] 65/16 65/19 66/6 66/18
66/20 87/21
Regulation A [1] 65/16
Regulation A Plus [4] 65/19 66/18
66/20 87/21
regulations [1] 104/8
Reimerdes [4] 45/22 45/25 46/9 47/15
reintroduced [1] 80/7
rejected [2] 43/15 46/5
relates [2] 26/12 73/6
relationship [4] 24/2 39/22 40/5 94/20
relationships [1] 38/23
release [18] 69/10 69/13 69/14 69/15
69/16 69/21 70/17 70/20 71/10 71/11
92/16 93/18 93/19 94/8 95/3 95/5 95/6
95/7
released [8] 69/6 70/2 70/21 71/11
92/22 92/25 94/4 94/7
releasing [1] 71/16
relevant [2] 11/12 67/10
relief [2] 37/5 37/22
relies [1] 76/24
rely [1] 24/17
relying [4] 14/4 34/23 49/18 101/5

R
remain [2] 6/13 102/23
remains [2] 25/13 81/25
remarks [2] 10/17 24/16
remedy [1] 22/15
remember [4] 21/15 33/4 90/23 96/11
reminders [1] 57/15
remotely [1] 62/4
remove [2] 42/9 42/12
removed [1] 90/24
rendered [2] 98/18 102/11
rent [2] 94/25 96/17
rental [7] 58/10 58/11 59/24 94/18 95/9
98/2 102/5
rented [3] 8/12 8/12 57/7
repeated [2] 56/10 91/19
repeatedly [2] 40/11 55/19
repertoire [1] 55/3
reply [3] 24/20 43/6 100/7
reported [1] 104/5
REPORTER [1] 1/23
REPORTER'S [1] 1/16
represented [3] 9/10 19/8 64/20
representing [1] 11/9
reproduction [4] 34/7 48/20 48/21 49/9
republishing [1] 89/4
repurchase [2] 5/21 5/22
request [5] 5/14 56/24 66/9 80/16 84/9
requested [1] 97/25
requests [2] 81/16 84/13
require [1] 69/13
required [7] 16/24 18/25 19/21 62/20
70/24 74/23 101/8
requirement [4] 15/25 50/14 54/23 62/6
requirements [6] 14/12 16/19 17/7
32/20 97/1 97/2
requires [3] 9/14 28/16 42/18
requiring [1] 60/10
resale [1] 8/10
resell [1] 7/11
reselling [1] 8/5
reserve [1] 93/4
resolution [1] 91/1
respect [10] 38/8 44/4 53/6 53/8 55/17
64/8 64/9 65/22 84/19 90/15
respond [9] 16/14 43/5 61/9 61/13
61/14 63/5 63/7 87/3 93/4
responding [1] 58/7
response [13] 17/11 17/23 21/16 28/17
30/7 36/24 61/22 64/4 72/18 74/5
93/14 93/16 96/21
responses [1] 74/9
responsible [1] 84/15
restraining [1] 66/10
restricts [1] 15/22
results [1] 59/3
resume [1] 63/4
retail [1] 70/11
returned [1] 98/1
revenue [6] 8/7 19/23 22/1 33/16 59/1
69/7
revenues [2] 39/6 87/19
review [3] 3/24 78/15 102/21
ridden [1] 76/19
ride [1] 75/25
right [48] 3/21 5/12 7/7 8/8 15/4 15/6
15/21 15/23 16/1 16/17 16/17 16/21
19/10 20/5 22/16 23/10 23/13 25/24
26/11 32/5 32/25 35/18 36/10 39/25
40/6 40/7 43/1 48/21 48/21 49/6 49/9

ER212

41/16 41/24 42/7 43/8 44/21 47/17
47/19 47/20 49/4 50/13 52/14 54/12
54/13 57/11 57/11 58/9 58/9 58/10
58/21 74/6 74/15 75/5 75/7 83/13 86/9
97/8 97/16 97/17 99/5 100/3 100/17
scenario [2] 7/5 26/18
scene [1] 88/16
scenes [3] 9/6 12/24 51/9
schedule [1] 66/15
scheduled [1] 66/12
screen [2] 14/14 91/19
screens [1] 14/19
SD [1] 59/2
se [1] 68/1
SEC [3] 59/21 59/22 65/17
second [17] 19/5 21/18 33/14 38/17
38/19 38/22 42/15 46/4 49/8 53/2
54/10 58/21 69/15 79/13 79/14 83/23
101/10
secondly [2] 15/10 92/15
seconds [6] 53/25 55/8 57/13 79/12
79/14 100/24
section [43] 14/3 14/3 15/18 16/6 16/8
16/9 16/9 16/10 17/6 17/8 17/17 17/19
17/22 23/7 24/3 24/4 24/11 32/8 32/8
32/9 32/13 32/14 41/13 41/15 41/22
42/2 44/2 44/3 44/11 44/13 44/18 45/6
46/12 46/12 46/14 73/8 74/6 74/15
S
75/2 95/21 98/19 98/24 104/3
said [58] 6/21 11/15 20/21 21/12 22/12 Section 106 [4] 17/8 32/13 44/3 46/14
22/25 27/1 27/18 27/24 28/17 28/23
Section 107 [2] 24/3 46/12
28/25 29/1 29/2 30/20 31/13 34/5
Section 110 [11] 17/6 17/19 32/8 32/9
34/18 36/21 38/19 40/14 42/24 43/18
44/2 44/13 46/12 73/8 74/15 75/2
44/10 45/1 45/9 45/15 46/9 46/17
98/19
46/18 47/22 49/24 50/10 52/23 53/12 Section 1201 [15] 14/3 16/6 16/8 16/9
54/4 55/19 55/22 56/21 56/22 58/23
17/17 17/22 23/7 24/4 24/11 41/13
68/2 68/8 74/22 76/4 78/11 83/20
41/15 44/11 44/18 45/6 74/6
86/12 91/24 92/2 97/21 98/11 99/19
secure [1] 43/2
99/22 99/24 100/5 100/11 102/1
Securities [1] 56/22
sale [5] 7/25 8/10 56/10 56/12 102/5
security [3] 39/3 61/21 62/2
sale/buyback [1] 56/12
see [14] 9/1 9/21 9/24 11/8 20/2 31/19
Salinger [1] 86/2
37/6 37/16 40/18 52/13 57/10 80/16
same [29] 5/8 6/2 7/1 7/3 7/6 22/23
85/4 102/24
22/23 23/18 29/20 30/12 41/3 41/4
seeing [3] 14/14 29/19 29/21
51/7 51/21 52/2 60/3 68/17 71/14
seek [2] 23/4 66/11
71/18 75/24 78/9 84/9 84/9 88/24 89/6 seeking [2] 14/6 58/3
95/1 95/6 95/8 96/19
seemed [1] 62/8
SAN [1] 2/9
seems [2] 14/21 73/4
sanitize [1] 25/11
seen [5] 14/21 25/22 51/24 52/12
satisfies [1] 89/7
99/25
Saturday [1] 10/8
Sega [1] 49/18
say [55] 6/10 6/11 8/22 10/23 12/20
select [2] 53/11 68/25
21/5 21/5 21/10 25/7 32/14 33/20
selected [4] 12/8 68/19 68/23 84/3
39/21 40/21 42/12 42/15 45/5 45/16
selecting [1] 10/11
46/21 47/9 47/22 49/1 49/1 49/3 49/6 selects [2] 84/1 84/2
49/8 49/9 52/22 53/10 54/23 55/7
self [1] 89/1
55/17 55/25 56/4 56/14 57/2 57/11
self-evident [1] 89/1
60/23 61/3 62/5 64/2 65/14 66/19
sell [19] 5/23 6/5 6/11 7/10 7/16 7/24
67/17 68/5 76/7 77/4 77/15 83/1 85/3
10/15 13/20 19/23 28/14 57/15 58/8
86/2 89/9 90/10 93/6 100/16 101/22
58/13 70/10 71/12 71/14 72/7 88/20
saying [29] 7/21 14/20 17/1 24/16
90/10
24/17 24/24 27/23 36/18 43/19 46/13 sell-back [2] 6/5 10/15
47/24 47/25 52/15 53/23 60/14 63/20 sellback [4] 90/4 90/11 101/12 102/8
67/15 67/17 67/19 70/25 78/22 79/3
selling [1] 56/9
81/19 82/16 83/3 93/13 95/11 96/12
semantics [1] 33/14
99/10
semester [1] 6/24
says [54] 4/4 5/16 5/17 10/15 14/7
Senate [1] 44/6
15/19 17/4 23/18 26/22 29/16 31/3
Senator [7] 17/15 17/25 44/6 44/22
31/4 31/24 32/25 35/20 36/8 37/2
45/1 98/10 98/11
37/15 37/19 39/19 39/23 39/25 40/8
Senator Hatch [4] 44/6 44/22 45/1

50/4 50/5 50/9 52/13 52/15 64/1 71/13
72/6 77/2 78/17 78/20 88/9 97/12
97/16 99/7 102/4 102/19
rights [13] 16/20 16/23 17/8 17/9 19/19
32/10 34/7 34/19 46/15 46/25 55/14
72/18 91/10
rip [4] 29/7 29/10 30/3 48/14
ripped [1] 49/15
ripping [4] 30/4 30/9 33/8 40/24
rise [1] 103/3
risk [1] 62/24
RJN [1] 44/9
robust [1] 102/20
Rogue [1] 3/17
role [1] 23/5
role-playing [1] 23/5
room [2] 1/24 37/15
ROSA [1] 2/8
Rose [1] 3/10
round [4] 99/13 99/13 99/13 99/14
rug [1] 66/4
rule [1] 71/3
Rulemaking [1] 47/7
run [4] 55/13 69/11 69/15 91/9
running [1] 59/3
runs [1] 67/13
RYAN [1] 2/15

S

sign [1] 76/19
significant [2] 35/10 62/11
Senator Hatch... [1] 98/11
significantly [3] 80/10 88/23 96/6
Senator Hatch's [1] 98/10
similar [2] 24/16 30/20
send [1] 7/20
simply [11] 33/11 37/7 43/22 47/14
sends [1] 81/17
49/1 55/4 60/5 69/2 72/3 84/11 100/19
sense [6] 26/24 82/5 82/25 83/5 83/5
simultaneously [3] 5/3 5/9 7/15
97/21
since [2] 86/14 86/16
sensitivities [1] 78/8
single [2] 44/20 95/9
sent [4] 45/8 65/4 71/24 101/18
site [6] 9/22 9/23 12/13 12/18 40/19
sentence [5] 14/2 14/7 15/5 41/17
57/9
44/20
sitting [1] 52/12
separate [5] 28/2 32/14 42/5 42/5
situation [4] 8/1 22/24 23/14 49/22
46/22
six [5] 53/12 53/13 62/23 67/1 102/2
separately [1] 77/17
skeleton [1] 43/20
September [1] 58/19
skipped [1] 51/9
September 29th, 2015 [1] 58/19
skips [1] 32/16
seriously [1] 64/25
sky [1] 62/20
serve [3] 24/10 77/10 95/19
slew [2] 37/16 37/18
served [2] 60/10 90/25
slides [1] 3/15
server [10] 29/12 30/1 33/10 33/18
slip [1] 59/23
33/24 34/5 48/22 49/14 72/17 73/3
small [1] 59/19
servers [2] 41/1 73/7
smartphone [1] 80/25
service [60] 16/19 16/24 17/5 17/6 18/5
smoking [2] 12/2 51/12
20/9 21/4 27/24 28/18 30/11 30/13
snippet [1] 56/2
30/13 30/19 30/22 37/11 39/1 39/19
so [139]
40/4 50/3 52/14 54/20 54/21 55/20
so-and-so [1] 63/21
55/23 56/4 56/7 57/8 59/24 60/16
Society [1] 91/17
60/17 62/9 64/13 64/17 65/23 65/24
software [2] 29/7 29/8
66/1 68/10 71/18 72/12 72/13 74/12
sold [12] 4/18 4/22 5/2 6/14 6/16 7/4
74/13 75/1 76/4 76/8 77/11 80/12
7/4 8/12 8/13 57/6 69/19 96/16
83/13 84/12 84/14 86/13 89/20 92/24
some [36] 4/2 8/17 9/5 9/11 10/2 10/24
94/13 94/14 94/20 94/22 96/3 96/18
11/11 11/16 13/3 15/14 17/15 18/25
99/23
19/2 26/14 28/19 31/3 31/6 31/8 34/12
services [20] 19/13 19/24 27/11 41/6
36/24 37/24 37/25 42/3 44/19 51/8
60/20 60/22 69/22 70/16 72/8 91/11
51/9 51/25 52/4 72/25 91/21 92/13
92/7 93/19 93/25 94/1 94/22 95/11
92/24 93/25 95/15 102/21 102/22
95/17 95/19 96/7 100/17
somebody [18] 9/23 19/18 21/25 25/1
sets [2] 17/9 32/9
28/3 29/16 34/15 34/16 40/8 43/14
setting [3] 54/20 55/13 97/5
43/19 46/24 49/22 57/7 60/24 78/15
several [10] 13/14 17/24 19/13 32/16
92/5 102/15
38/7 66/3 71/11 71/15 74/9 77/14
somehow [8] 34/12 52/19 62/17 72/11
sex [1] 12/3
82/13 82/25 91/9 95/10
shall [4] 14/8 14/8 41/18 74/6
someone [9] 7/3 7/6 10/9 28/12 28/15
share [2] 14/22 21/19
29/24 76/1 76/1 81/21
shared [1] 14/14
something [29] 8/22 9/1 9/15 9/17
sharing [3] 21/16 21/24 22/3
24/18 25/2 25/11 26/4 32/21 33/6 40/6
she [6] 7/8 10/11 45/7 74/22 74/23
42/22 43/7 44/21 45/7 52/23 61/3
90/10
65/15 72/1 79/14 79/15 79/22 84/12
shift [1] 72/15
84/13 84/15 85/11 89/25 95/23 100/22
short [4] 22/3 57/5 57/6 59/25
sometimes [1] 94/1
short-term [1] 59/25
somewhat [1] 73/4
shorted [1] 13/1
somewhere [2] 102/2 102/2
shorter [2] 3/19 79/13
Sony [3] 49/19 67/1 67/5
shortly [1] 65/20
sorry [6] 7/21 8/12 13/8 61/16 93/8
should [13] 14/22 33/20 40/25 45/7
101/21
47/11 62/20 65/10 67/10 78/22 87/17
sort [10] 4/11 34/13 36/1 36/24 37/25
87/17 87/24 93/6
63/15 63/19 66/17 82/16 88/11
show [4] 3/15 12/19 12/25 12/25
sorts [1] 9/24
showed [2] 45/10 46/19
source [1] 82/1
showing [5] 10/7 35/4 50/21 51/6 51/17
SOUTH [1] 2/4
shown [2] 31/16 69/10
Southern [1] 47/19
shows [7] 9/21 9/21 9/22 31/6 41/4
space [1] 85/5
53/3 56/16
speaks [2] 98/13 99/1
shredded [1] 83/4
special [1] 80/21
shredder [2] 82/17 83/4
specific [8] 4/23 12/16 24/17 25/6
shut [2] 61/12 99/12
44/24 49/21 81/16 99/15
shy [1] 87/2
specifically [7] 11/21 17/16 45/5 63/18
sic [1] 24/8
64/6 99/5 100/11
side [4] 29/25 47/20 62/25 80/3
specifications [2] 20/6 26/9
sides [1] 102/20

ER213

specter [2] 92/4 92/25
speculate [1] 68/3
spend [1] 86/24
spent [2] 36/12 87/1
sponsor [1] 44/6
spring [1] 65/18
squarely [2] 43/15 46/5
stack [5] 28/20 29/4 29/13 29/25 56/9
stage [1] 50/19
stakeholder [1] 20/7
stakeholders [1] 19/20
standard [3] 59/2 69/6 76/17
standing [3] 10/2 16/3 61/2
stands [1] 100/16
Star [8] 3/16 51/17 51/18 52/8 52/8
81/21 88/15 88/15
Star Wars [7] 51/17 51/18 52/8 52/8
81/21 88/15 88/15
start [7] 3/25 6/19 24/19 24/25 25/1
31/23 59/19
start-up [1] 59/19
starting [1] 37/3
starts [2] 46/13 86/7
state [3] 3/6 18/16 48/1
stated [1] 81/12
statement [7] 13/24 17/25 44/24 95/18
98/10 99/2 101/24
statements [11] 18/1 18/2 18/2 18/14
35/1 40/20 44/5 44/7 44/14 59/17
59/18
states [9] 1/1 17/16 17/20 29/9 29/10
46/4 47/17 104/4 104/8
stations [2] 70/21 70/22
statistics [1] 12/4
statute [28] 14/17 15/2 16/21 21/6
27/15 31/10 31/17 31/19 31/20 31/25
32/7 43/23 44/16 44/23 47/11 49/7
50/13 55/9 73/21 82/12 83/12 83/12
97/2 97/3 97/7 97/8 98/8 99/2
statutory [3] 38/11 50/6 87/15
stay [3] 37/19 49/13 62/13
stayed [1] 62/14
staying [1] 58/17
stays [1] 49/16
stenographically [1] 104/5
step [1] 3/6
stereotypical [1] 86/6
still [14] 12/21 30/4 30/5 30/5 45/20
51/16 52/8 52/9 53/14 75/18 82/17
83/10 89/24 98/6
stock [7] 7/20 65/16 65/19 66/6 66/18
66/20 87/21
stop [6] 16/2 16/11 48/15 68/1 72/15
99/12
stopped [1] 97/12
stopping [1] 54/20
storage [1] 85/5
store [4] 5/24 6/12 34/4 80/19
stored [9] 6/6 81/20 81/24 81/24 82/6
82/22 82/23 84/6 84/25
stores [1] 81/13
story [1] 52/2
strategy [2] 58/3 59/7
stream [25] 19/23 25/8 25/14 25/15
25/15 26/19 29/20 30/16 30/16 30/18
30/22 31/2 40/4 49/11 50/2 50/15 53/9
58/14 70/12 72/6 73/7 76/17 92/21
94/5 101/6
streamed [15] 4/9 4/12 9/3 13/22 19/11
25/25 33/6 48/23 69/3 71/14 71/16

S
streamed... [4] 71/19 75/14 80/1 98/4
streaming [38] 4/15 29/18 41/3 41/5
50/2 50/11 50/11 50/15 51/6 51/10
54/21 56/14 60/17 65/3 68/10 69/22
69/23 69/24 70/2 70/15 71/1 71/13
71/17 71/19 72/5 72/10 79/17 79/25
80/15 88/20 88/21 88/25 92/7 93/25
94/13 94/13 95/19 97/12
streams [3] 5/14 30/14 94/15
STREET [2] 1/24 2/8
strictly [1] 100/25
strikes [1] 88/14
strong [1] 96/2
studies [1] 91/18
studio [7] 21/2 24/13 55/2 76/5 92/25
95/4 100/10
studio's [3] 23/15 28/9 86/9
studios [80] 9/10 16/22 19/3 19/12
19/20 19/22 20/9 20/13 20/24 21/5
21/8 21/9 21/10 22/1 22/7 24/20 25/23
26/4 26/10 27/23 35/1 35/2 35/2 35/9
43/16 61/6 64/6 64/14 64/18 64/24
64/24 65/4 65/6 65/11 65/20 65/21
66/2 66/3 66/9 66/22 67/1 67/3 67/15
67/21 68/2 69/1 69/3 69/7 69/16 69/21
70/10 70/17 70/19 71/4 71/6 71/10
71/22 72/7 72/9 76/3 76/6 76/11 77/3
77/4 77/8 77/10 77/13 78/21 85/15
85/19 86/14 86/19 87/11 88/18 89/14
89/18 90/6 90/13 100/10 101/4
studios' [2] 66/25 87/1
stuff [3] 13/13 14/14 93/1
subcategories [5] 12/11 12/15 12/16
78/12 79/8
subject [8] 14/4 27/22 47/1 47/4 94/21
97/1 97/2 97/13
submission [1] 102/23
submit [11] 24/12 35/13 40/23 43/25
66/24 71/23 72/3 76/5 77/1 86/24 88/7
submitted [3] 15/13 56/23 65/8
subscription [1] 94/1
subsection [9] 17/6 41/17 41/23 41/24
41/25 42/17 73/9 74/12 75/2
Subsection 11 [4] 17/6 73/9 74/12 75/2
Subsection capital [1] 42/17
substantiality [2] 53/5 53/8
succeeded [1] 66/22
successful [1] 77/3
such [11] 19/24 20/10 21/4 73/22
75/18 77/11 81/1 88/1 90/16 91/19
98/22
sued [4] 19/12 19/15 36/23 56/13
suffering [1] 26/10
suffice [1] 85/12
sufficient [1] 90/1
sufficiently [1] 75/11
suggest [2] 87/7 100/1
suggested [3] 69/1 91/8 92/18
suggesting [1] 94/4
suggests [1] 17/13
suing [1] 20/13
suit [5] 36/9 37/11 65/7 65/20 67/5
Sullivan [1] 34/5
supplemental [2] 56/24 76/13
support [7] 34/22 66/8 99/12 99/23
100/11 100/19 101/23
supported [2] 44/16 48/7
supposed [2] 5/1 34/25
supposedly [1] 33/7

ER214

testify [1] 19/18
text [3] 32/7 32/17 41/15
than [12] 7/16 11/19 12/9 38/3 38/4
51/19 58/3 62/10 68/25 90/25 94/17
96/6
thank [14] 10/5 15/8 32/6 53/1 63/1
63/9 63/25 90/13 100/21 101/3 102/19
102/25 103/1 103/2
that [782]
that's [67] 7/12 7/22 8/4 8/6 8/23 9/7
9/19 10/19 16/10 16/10 27/13 29/2
29/8 29/18 33/11 34/9 34/18 42/16
42/21 43/22 47/23 47/24 49/15 49/16
50/19 51/1 51/17 52/15 52/17 53/6
T
53/15 54/1 54/3 54/12 54/24 55/15
Tab [7] 32/7 41/16 44/7 58/6 58/18
57/13 57/16 57/23 61/11 61/12 62/20
98/11 99/16
63/17 63/22 67/9 68/4 69/8 69/11 70/8
Tab 13 [1] 58/18
71/4 74/14 79/9 80/2 80/6 81/24 85/17
Tab 15 [1] 99/16
87/23 93/17 94/18 95/7 95/23 98/12
Tab 3 [1] 32/7
99/4 100/14 100/19 101/13 102/17
Tab 5 [2] 44/7 98/11
theaters [2] 69/11 69/15
Tab 7 [1] 58/6
theatrical [2] 69/13 69/14
Tab Number 1 [1] 41/16
theatrically [1] 69/10
table [1] 3/11
their [58] 18/11 19/20 20/6 20/6 22/8
tablet [1] 80/24
24/20 24/21 24/23 24/23 26/8 26/8
tag [2] 78/9 79/6
26/9 27/3 28/3 28/4 30/11 31/14 31/15
tagged [2] 79/15 83/9
33/17 33/20 34/21 34/23 35/16 35/21
taggers [3] 78/5 78/6 78/7
36/6 37/15 39/5 39/6 39/7 39/7 42/11
tagging [1] 78/11
42/11 42/13 43/4 45/17 49/15 50/18
tags [3] 78/16 79/7 83/10
50/22 56/24 57/4 57/9 57/14 57/19
take [19] 6/22 12/16 21/9 27/4 29/5
59/23 59/24 59/25 69/23 72/6 80/23
29/6 36/7 51/25 52/7 52/16 54/18
80/24 80/24 80/25 85/9 88/21 89/21
54/23 56/2 61/10 62/7 63/3 63/8 94/14 90/19 95/21 98/1
102/21
them [41] 5/17 6/12 12/14 13/21 19/11
taken [6] 29/22 51/19 51/24 53/14
20/20 25/8 26/15 27/3 27/4 29/20
54/24 63/10
37/14 37/18 48/13 48/18 50/2 50/23
takes [2] 26/22 81/22
58/14 62/14 62/15 67/18 68/8 68/13
taking [6] 38/10 51/11 52/2 52/4 64/25 69/20 70/11 80/20 82/15 85/22 89/19
89/3
94/11 94/25 95/1 96/1 96/3 96/5 96/8
talk [13] 3/22 8/16 26/21 35/21 35/24
98/1 99/23 100/18 101/18 102/4
37/25 61/21 63/14 63/15 63/19 72/16 themselves [4] 60/7 90/17 90/18 95/23
82/22 88/9
then [70] 4/8 4/18 4/19 4/19 5/15 5/17
talked [1] 84/16
6/12 6/13 7/2 7/10 7/10 7/23 7/25 11/7
talking [10] 31/11 58/20 58/22 62/25
13/20 13/21 13/21 14/19 16/13 17/20
82/4 82/18 82/20 82/21 83/24 101/17
20/22 21/19 23/11 25/4 25/7 25/17
talks [1] 94/12
27/16 28/13 28/15 29/1 29/11 29/23
techniques [1] 64/7
32/16 33/10 34/10 35/8 36/24 40/10
technological [11] 4/16 14/9 15/20
43/25 47/1 52/11 52/17 58/13 58/18
25/17 25/17 41/19 42/8 42/9 42/15
59/12 60/25 60/25 63/4 63/7 69/14
74/7 85/9
70/12 70/12 70/13 70/13 70/19 72/16
technology [5] 9/11 28/5 34/15 73/23
73/21 74/4 76/2 79/8 80/1 81/9 81/15
77/17
86/16 91/23 92/18 93/19 97/20 102/16
teenagers [1] 18/9
102/25
television [4] 41/4 70/20 70/22 80/22
theory [2] 20/11 66/8
tell [7] 9/20 14/1 25/23 30/23 36/19
there [180]
38/6 99/20
thereby [5] 9/2 9/2 21/21 25/8 102/16
telling [1] 79/21
therefore [6] 7/15 18/19 38/20 43/13
tells [1] 48/13
51/13 88/5
TEMPLE [1] 1/24
therein [1] 74/13
temporary [2] 49/16 66/9
these [17] 11/12 13/16 13/20 13/20
ten [4] 55/7 63/3 63/8 79/12
14/19 35/22 43/11 46/23 55/13 55/25
ten-minute [2] 63/3 63/8
67/11 72/17 73/4 73/6 83/24 95/17
tenable [2] 43/21 43/22
96/1
tenor [1] 52/1
they [256]
term [7] 6/19 6/23 49/20 57/5 57/6
they'll [2] 55/4 55/4
59/25 81/23
they're [24] 6/6 11/22 26/19 28/14
terminated [1] 87/22
29/21 35/5 37/17 38/13 39/16 40/3
terms [8] 17/5 40/24 59/14 66/1 74/19 40/4 45/15 49/13 50/1 50/1 51/17 56/9
76/4 76/7 76/10
56/10 58/22 65/12 68/4 70/3 70/5 96/6
test [3] 37/9 54/3 64/13
they've [6] 6/15 58/7 59/23 60/1 62/2

Supreme [2] 54/4 85/8
sure [21] 4/1 4/25 5/7 7/22 8/3 13/4
13/16 14/2 14/13 14/24 28/19 37/24
53/18 63/16 63/23 64/1 72/20 73/8
78/15 94/3 94/10
surely [1] 88/20
surprise [1] 90/11
surviving [1] 75/21
suspicious [1] 100/3
system [15] 8/25 9/9 9/11 9/25 10/25
19/19 21/2 55/16 57/17 58/15 58/23
75/24 76/1 76/14 89/23
Systems [1] 39/10

T
they've... [1] 91/10
thing [18] 7/1 10/23 21/8 35/18 36/21
37/16 38/22 47/5 49/8 54/10 57/10
58/8 68/3 68/4 88/24 90/2 92/6 92/6
things [24] 11/24 12/5 22/8 27/1 28/17
28/23 35/25 36/18 40/14 40/18 52/4
52/8 55/19 62/7 78/9 82/5 82/21 83/9
91/15 91/15 92/1 92/1 95/22 99/25
think [35] 8/23 11/11 13/5 17/15 24/15
31/22 34/1 36/19 44/3 45/20 47/9
51/24 51/25 52/20 53/12 54/1 54/19
55/11 56/11 57/21 58/1 59/3 62/16
67/13 80/1 81/11 81/19 82/4 82/21
83/23 87/17 89/1 97/20 101/18 101/25
thinks [1] 30/20
third [5] 50/4 53/5 79/21 82/13 82/14
this [150]
those [46] 8/5 8/15 9/7 11/21 17/7
18/14 19/4 20/23 24/12 27/17 27/21
29/14 29/15 33/15 38/12 38/12 38/13
38/20 39/25 43/10 46/15 49/19 52/8
57/23 59/13 69/19 72/5 73/1 75/9
79/14 81/15 82/12 82/14 82/23 83/1
83/7 84/4 87/16 88/7 90/18 92/22 95/1
95/11 96/1 96/23 98/18
though [6] 44/16 45/16 51/23 82/13
89/5 97/25
thought [8] 11/15 44/15 44/18 45/7
55/11 62/13 89/22 93/12
thousand [1] 37/10
thousands [3] 29/20 77/21 77/24
threat [1] 66/22
three [7] 20/17 47/8 51/19 52/20 67/14
67/14 93/4
threw [1] 44/14
through [39] 4/3 4/5 4/25 5/12 9/23
10/22 11/7 11/14 12/14 13/3 13/13
13/17 14/21 15/4 16/12 36/25 39/7
43/20 44/2 46/17 46/23 50/5 50/23
58/8 59/23 69/6 72/21 72/21 73/1
76/22 78/1 78/9 82/16 83/4 84/18
92/16 94/16 96/3 97/10
thumbnail [5] 89/3 89/4 89/4 90/23
90/25
tied [1] 80/22
time [25] 7/17 12/19 14/25 18/16 18/22
21/12 27/8 29/24 30/21 31/13 35/20
40/3 56/3 61/7 62/8 63/8 64/12 71/14
71/18 72/23 72/24 79/4 90/11 94/4
102/21
times [3] 33/19 66/3 85/4
timing [1] 100/4
tiny [4] 79/9 81/15 82/23 83/10
title [12] 14/11 15/11 15/22 15/24
17/22 32/14 41/21 42/4 46/12 74/5
74/8 104/4
Title 17 [3] 15/11 17/22 46/12
titles [4] 37/13 37/17 39/24 39/25
today [10] 3/23 4/17 9/3 12/6 25/14
37/15 75/18 81/5 87/1 98/2
together [1] 94/10
told [4] 26/2 47/10 89/18 100/18
tolerated [1] 77/2
TOLLES [4] 2/3 2/7 3/9 64/21
too [2] 24/9 28/22
took [5] 29/25 53/24 64/16 65/8 65/9
top [4] 31/2 58/19 60/19 75/25
total [4] 18/8 18/14 96/16 101/20
totally [2] 84/20 85/13

ER215

touched [2] 17/12 17/12
track [1] 12/21
transactions [2] 57/4 59/25
transcript [5] 1/16 99/17 100/6 104/5
104/7
transform [1] 52/16
transformative [11] 50/25 51/2 51/14
52/17 52/24 88/11 89/2 89/3 89/5
90/14 90/20
transmission [5] 97/13 98/13 98/17
98/23 99/1
transmit [3] 74/4 80/1 81/17
transmitted [8] 25/20 32/23 73/13
79/24 84/5 98/4 102/12 102/13
transmitting [1] 41/3
treatment [1] 42/19
tremendously [1] 64/17
Triad [1] 57/24
trial [1] 101/1
tried [2] 27/4 72/9
Triennial [1] 47/7
Trolls [2] 88/14 88/15
true [8] 66/24 81/14 93/17 95/13 95/15
95/15 102/5 104/4
trust [6] 23/1 23/11 23/13 23/16 34/23
75/9
truth [1] 72/13
try [7] 9/12 24/14 34/16 35/8 42/2
59/12 85/10
trying [10] 8/3 25/2 25/12 30/21 46/6
51/25 65/22 66/6 91/14 92/17
tuned [1] 37/19
turn [9] 35/3 36/2 36/3 41/8 41/12
41/14 45/13 70/24 85/24
turned [3] 36/10 60/1 62/13
turns [1] 59/22
TV [1] 53/3
Twelve [2] 101/14 101/16
Twelve percent [2] 101/14 101/16
TWENTIETH [1] 1/5
two [32] 5/2 5/9 5/25 8/14 8/15 10/6
11/18 11/19 12/9 14/12 15/9 27/10
27/10 31/24 33/4 48/17 49/23 49/24
51/18 53/11 53/24 71/4 72/5 79/14
80/5 82/4 82/21 86/17 87/16 87/17
94/14 95/2
two-hour [1] 53/24
twofold [1] 50/8
type [9] 27/11 39/4 39/12 40/11 41/5
55/6 55/15 60/21 62/24
types [2] 27/10 94/15
typically [2] 69/16 70/19

61/6 79/11 81/11 94/3
unfairly [1] 69/1
unfiltered [4] 70/7 71/19 82/20 102/3
Unfortunately [1] 28/21
unfounded [1] 24/13
UNITED [7] 1/1 29/9 29/10 46/4 47/17
104/4 104/8
United States [4] 29/9 29/10 46/4 47/17
universal [7] 45/22 67/2 67/5 71/3
92/21 92/21 92/24
unlawful [1] 24/25
unlawfully [1] 102/15
unless [4] 21/7 48/13 58/11 61/18
unnecessary [1] 84/14
unreasonable [1] 65/10
unsatisfactory [1] 76/16
until [11] 47/2 58/13 63/6 63/6 70/10
70/17 92/19 92/24 93/18 102/23
102/25
up [30] 10/2 12/15 14/19 14/20 15/2
16/3 29/25 31/20 39/14 42/2 44/14
54/20 55/13 58/16 58/17 59/11 59/19
61/2 61/20 73/6 76/19 79/9 81/15 83/9
83/11 85/2 85/3 90/7 90/17 91/5
upfront [2] 5/11 5/13
upon [2] 17/12 17/12
urgent [1] 100/22
us [15] 6/17 10/8 21/7 25/23 30/25
31/4 33/2 35/3 36/19 36/25 38/9 38/24
49/11 76/5 88/20
USC [5] 15/17 17/6 32/8 74/6 74/11
use [50] 5/4 13/6 13/8 24/2 24/6 24/7
24/10 27/18 28/21 29/7 29/7 29/10
30/21 33/19 39/19 43/12 45/13 45/15
46/6 46/10 46/11 46/14 46/20 47/2
47/4 47/18 47/21 47/24 48/2 48/5
50/17 50/18 50/22 50/23 50/24 52/16
53/6 54/8 55/15 55/21 56/2 56/4 66/2
76/10 77/16 81/5 88/10 89/4 89/5
90/22
used [14] 6/25 7/4 7/18 8/12 24/24
29/14 34/4 41/24 57/16 68/15 70/21
75/8 80/12 81/25
user [8] 28/24 39/4 53/23 55/18 56/15
58/7 59/11 78/25
users [15] 27/17 35/8 37/8 37/10 50/2
55/19 57/14 59/5 59/11 62/10 64/15
68/24 85/16 96/8 96/12
uses [3] 75/24 78/6 78/7
using [3] 6/22 35/19 89/4
Utah [1] 27/8
utilized [1] 26/23

U

V

U.S [1] 1/3
ultimately [2] 97/5 97/21
unaltered [1] 83/22
unapproved [1] 77/17
unauthorized [1] 33/25
unconstitutional [1] 14/7
under [41] 14/11 15/11 15/21 15/24
16/18 16/21 17/2 17/2 18/5 19/1 19/7
19/15 21/13 22/4 22/5 22/21 24/2 25/3
25/12 26/18 34/17 39/3 39/3 39/4
41/21 42/4 49/6 50/23 51/2 52/5 55/14
72/6 72/14 74/8 74/11 91/24 92/10
92/17 102/12 102/13 102/23
undermine [1] 84/21
understand [15] 4/1 5/13 6/7 7/2 8/4
11/9 13/16 13/18 14/18 24/14 53/18

value [5] 6/5 8/11 58/16 101/12 102/8
varies [1] 94/20
various [6] 11/25 24/12 32/10 36/17
47/8 78/5
vault [6] 4/19 4/25 6/14 29/15 29/18
58/14
vein [1] 63/14
verbatim [2] 53/7 54/2
verbiage [1] 17/15
version [18] 3/18 4/9 15/2 70/7 70/9
73/22 74/1 80/11 80/11 80/12 80/14
83/14 83/17 83/21 83/22 91/3 97/6
97/6
versus [12] 3/5 18/24 22/7 34/3 38/18
45/22 46/4 47/17 49/18 49/19 50/20
51/4

V
very [23] 10/13 18/15 21/8 25/10 36/14
37/16 46/3 49/21 49/21 57/9 57/20
58/19 61/4 65/2 67/22 69/20 77/3 78/1
88/3 89/16 97/12 99/10 100/8
veto [2] 21/8 26/10
vicinity [1] 102/3
VIDANGEL [122]
VidAngel's [11] 10/9 23/16 47/13 61/5
64/7 72/10 76/3 84/14 85/16 87/19
90/12
video [17] 3/15 4/8 7/4 9/19 10/3 10/7
10/8 10/14 10/22 11/5 11/8 14/19
57/10 73/12 79/23 96/18 98/20
videos [2] 55/22 55/25
view [5] 8/10 28/10 44/16 53/19 95/22
viewed [2] 65/10 78/3
viewing [3] 19/11 73/14 79/25
views [1] 95/16
violate [6] 13/19 17/7 17/8 46/25 48/12
66/1
violated [2] 34/6 48/11
violates [2] 23/11 72/17
violating [2] 13/23 76/7
violation [21] 13/7 17/14 17/17 24/11
25/2 25/9 42/5 43/24 44/10 44/18
46/15 46/22 47/3 48/20 48/21 49/8
74/18 75/9 76/4 76/10 99/4
violations [1] 24/4
violence [8] 8/18 9/6 11/23 12/2 51/12
52/1 91/19 96/2
violent [2] 51/23 91/21
virtue [2] 67/18 98/19
vis [2] 16/24 16/24
vis-à-vis [1] 16/24
vision [1] 88/23
voice [1] 12/20

W
wait [10] 36/9 70/10 70/17 70/24 71/20
71/25 92/18 93/13 93/17 95/12
waited [1] 65/6
waits [1] 5/25
walk [4] 4/2 13/12 72/21 72/25
walking [1] 9/23
Walter [1] 40/14
want [46] 4/1 4/4 6/3 6/11 7/14 7/19
7/25 8/22 9/1 11/1 13/4 13/16 14/13
22/7 28/19 34/17 35/2 35/23 41/8
53/18 59/25 60/12 61/3 61/6 63/12
63/16 63/22 70/8 70/9 72/25 80/18
80/19 80/21 80/23 80/24 80/25 80/25
81/5 89/24 90/10 91/3 91/6 92/3 94/3
100/8 102/6
wanted [11] 7/9 9/10 19/9 21/9 21/20
55/3 66/14 71/19 77/7 92/20 92/22
wants [4] 7/3 7/6 81/21 95/5
Warcraft's [1] 24/7
warehouse [1] 58/14
warn [1] 71/25
WARNER [4] 1/6 20/18 92/20 92/23
Warner Bros [3] 20/18 92/20 92/23
Wars [8] 3/16 51/17 51/18 52/8 52/8
81/21 88/15 88/15
Wars' [1] 96/14
Wars,' [1] 4/4
Wars.' [1] 96/16
was [121]
wasn't [5] 8/25 43/4 45/2 46/10 99/2
watch [44] 4/4 5/8 5/10 6/11 7/3 7/6

ER216

100/16
7/17 7/19 9/2 9/2 9/14 9/19 11/20
where [24] 8/6 10/15 10/25 12/19
13/22 18/10 20/5 25/24 26/7 60/25
12/25 16/13 17/16 26/18 34/12 37/20
70/1 70/3 70/4 70/6 70/6 70/7 70/9
39/2 40/3 43/18 45/19 47/2 49/22
70/14 71/19 77/21 78/15 80/18 80/23
51/25 58/22 70/11 74/17 74/17 94/16
80/24 80/25 81/21 89/9 89/10 90/16
94/23 98/8
90/18 90/19 96/3 96/23 96/24 102/6
whereas [1] 16/6
watchable [1] 83/7
whether [20] 24/9 42/21 42/21 43/7
watched [3] 8/13 8/13 22/2
44/1 45/4 45/6 50/24 50/25 52/5 56/8
watches [1] 21/24
63/23 67/10 67/11 75/14 85/17 93/25
watching [4] 10/3 68/24 69/3 80/22
94/1 94/12 95/13
way [24] 14/4 21/20 31/1 31/3 31/7
31/14 33/11 34/12 51/20 52/16 54/11 which [48] 11/12 11/13 12/15 14/3 14/4
15/11 15/14 16/18 17/9 17/9 17/19
55/10 56/6 56/6 57/8 57/13 57/16
22/9 27/5 27/21 27/22 32/14 36/13
58/15 59/9 61/1 75/20 82/15 89/23
39/11 43/8 43/9 43/12 43/16 44/3
98/12
44/24 45/8 46/4 46/5 47/17 48/8 51/16
we [139]
51/20 54/4 56/17 58/6 62/3 69/7 77/19
we'll [6] 42/13 58/9 58/12 59/12 63/4
78/2 78/22 82/1 82/5 82/23 83/5 87/22
63/8
91/2 98/4 98/4 98/10
we're [24] 13/4 16/12 28/19 31/11
while [4] 22/18 25/18 58/17 61/20
36/18 36/19 36/20 39/19 39/20 40/9
who [31] 3/15 5/4 5/5 8/14 18/12 21/21
40/9 40/10 40/21 40/21 41/14 41/16
47/25 49/9 56/14 59/3 62/4 62/24 77/5 21/24 21/25 23/5 27/16 29/20 38/24
40/4 44/6 55/19 55/25 60/3 60/12
95/11
we've [14] 26/2 48/17 49/18 51/3 51/5 60/24 64/5 67/2 71/19 78/15 85/20
89/9 90/16 90/18 92/11 93/20 93/22
57/18 57/25 58/6 59/20 61/24 62/21
102/6
71/9 87/20 97/16
whole [11] 14/22 29/13 32/9 37/16
Web [3] 9/22 9/23 57/9
37/17 37/18 40/19 44/14 81/7 84/19
Web site [3] 9/22 9/23 57/9
92/16
weed [1] 85/10
why [22] 9/7 10/11 11/6 34/19 38/6
week [1] 95/14
44/15 44/18 58/7 58/22 63/3 63/20
weighed [1] 87/18
65/9 66/14 68/16 69/5 77/13 77/23
weight [1] 36/6
81/3 82/10 95/17 95/20 97/11
well [38] 5/19 9/18 17/24 21/5 22/22
widespread [1] 55/15
22/24 23/16 23/17 25/1 25/15 28/16
WikiLeaks [1] 99/25
34/20 36/14 37/22 39/17 43/8 49/9
49/12 54/10 56/14 60/11 64/12 67/12 will [63] 3/15 3/25 4/2 6/1 6/23 7/18
9/20 10/3 11/3 11/8 12/18 12/20 12/25
69/25 72/6 73/8 74/9 82/11 86/1 86/9
12/25 13/15 14/24 15/1 16/13 21/7
90/1 91/12 91/24 92/2 93/10 96/4
23/11 23/15 28/21 28/21 30/16 31/21
99/24 102/22
35/2 37/16 37/19 38/19 39/2 39/4
well-known [1] 36/14
went [13] 6/19 6/24 9/22 28/5 35/7 44/2 39/12 40/18 46/8 48/12 49/4 50/22
56/1 56/2 56/2 56/4 59/8 59/8 59/9
64/17 83/3 86/13 99/13 99/13 99/22
59/9 59/11 59/16 61/8 61/14 62/19
100/10
63/4 69/21 70/19 70/21 72/22 76/6
were [41] 10/24 19/14 19/15 19/16
84/4 95/5 100/24 101/22 102/4 102/23
19/20 19/21 19/22 19/24 19/25 20/4
102/24
20/10 20/13 20/25 24/17 27/2 27/10
27/11 27/16 27/20 27/21 28/18 36/13 willful [3] 87/11 87/12 87/13
willing [5] 67/18 68/9 90/16 90/18
39/24 44/5 52/15 54/15 56/13 64/22
90/19
64/23 64/24 66/10 67/2 67/23 72/3
77/14 82/13 82/25 86/18 89/14 89/19 window [6] 20/25 40/1 93/21 93/23
93/24 94/18
101/4
Winter [1] 86/2
WESTERN [1] 1/2
wish [4] 61/17 77/4 88/18 101/1
what [127]
what's [21] 7/5 9/17 17/11 17/23 30/7 withhold [2] 37/5 88/24
56/8 57/2 61/21 63/20 72/18 73/1 74/5 withholding [1] 88/21
78/1 81/20 82/22 82/23 83/16 93/14
within [6] 5/23 32/21 39/25 57/6 84/4
93/16 96/21 96/21
98/2
whatever [6] 35/18 51/12 59/24 65/23 without [16] 4/12 4/13 13/22 25/15
85/15 92/3
25/16 26/9 30/8 35/3 41/1 41/5 42/10
when [68] 4/22 7/3 7/10 11/16 11/19
62/19 71/20 74/4 75/15 89/10
12/13 12/20 20/14 20/16 24/13 25/13 won't [1] 46/17
27/6 28/3 28/14 29/16 31/3 33/1 33/6 wonderful [1] 21/6
34/20 35/7 35/8 35/17 37/11 39/2
word [2] 68/21 88/16
39/18 40/8 40/22 43/14 46/24 46/25
words [1] 79/25
47/9 52/7 52/11 52/11 52/22 55/21
work [39] 6/7 14/10 15/11 16/8 20/1
56/13 56/22 59/12 60/23 62/9 63/14
20/1 20/2 20/3 22/1 25/7 25/18 25/19
63/21 64/17 65/4 65/7 65/11 67/22
41/20 42/3 42/16 42/20 42/22 43/2
67/23 68/24 69/5 70/2 75/8 76/15 79/5 46/24 52/6 52/17 52/19 53/2 53/3
79/17 80/6 80/10 81/15 85/11 89/21
53/15 53/16 53/20 54/3 54/6 54/17
90/3 90/9 95/5 96/16 97/10 97/21
57/11 68/9 73/25 74/8 76/18 81/14

W
work... [3] 83/11 89/19 92/15
worked [2] 58/23 58/24
working [1] 67/7
works [14] 9/25 28/18 30/13 37/12
38/10 38/12 38/13 46/23 76/15 76/17
76/21 84/25 86/25 87/1
world [3] 24/7 36/4 95/19
worldwide [3] 21/19 21/21 51/3
worsening [1] 37/21
worst [1] 9/6
worth [1] 62/19
would [121]
wouldn't [7] 20/10 26/15 80/19 80/21
83/6 89/10 92/23
WoW's [1] 24/7
WPIX [1] 38/18
wrap [1] 91/5
written [1] 71/5
wrong [11] 7/16 18/20 25/11 26/25
27/1 29/2 30/10 31/16 38/9 75/10 99/6
WTV [2] 39/10 61/25

Y
Yeah [2] 20/20 96/14
year [2] 59/23 71/8
years [5] 18/17 47/8 77/14 80/5 86/1
yes [27] 4/7 4/11 4/16 4/21 5/16 5/17
6/9 6/16 8/2 8/6 13/10 13/11 21/10
26/25 28/25 29/2 32/1 32/4 50/7 61/4
71/3 73/4 73/20 78/18 82/5 83/5 90/21
yes-or-no [1] 73/4
York [1] 46/2
you [221]
You're [2] 35/19 76/7
your [147]
your Honor [95] 3/8 3/18 4/7 4/21 6/9
8/2 8/22 9/3 9/18 10/23 11/25 12/8
13/25 15/1 15/3 17/24 22/6 22/9 23/15
25/22 26/25 28/23 31/7 31/20 31/24
32/8 32/16 33/4 34/1 34/17 34/25
35/12 37/7 39/13 40/13 40/23 41/13
41/14 42/1 43/3 44/5 45/18 45/20 48/3
48/18 49/17 50/6 50/10 50/24 51/15
52/10 52/18 53/21 54/2 54/7 54/19
56/11 57/9 57/20 58/5 58/18 59/7
59/14 59/16 60/4 60/11 60/20 61/4
61/15 61/18 63/24 65/2 65/7 66/8
66/14 67/14 68/18 73/8 74/10 75/20
82/5 87/9 87/21 88/7 88/18 93/3 96/5
96/9 97/2 97/8 98/7 99/9 100/16
101/20 102/10
Your Honor's [1] 5/20
yourself [1] 50/16
YouTube [5] 55/22 55/25 76/7 76/22
76/23

Z
Zediva [7] 39/11 40/14 62/22 64/20
65/1 65/3 65/6
zero [1] 10/20

ER217

Case 2:16-cv-04109-AB-PLA Document 123 Filed 10/28/16 Page 1 of 2 Page ID #:4600

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11

DISNEY ENTERPRISES, INC.;
12 LUCASFILM LTD. LLC;
TWENTIETH CENTURY FOX FILM
13 CORPORATION and WARNER
BROS. ENTERTAINMENT INC.,
14
Plaintiffs and CounterDefendants,
15
16

vs.

17 VIDANGEL, INC.,
18

Case No. 16-cv-04109-AB (PLAx)
[PROPOSED] ORDER
REGARDING HEARING DATE ON
PLAINTIFFS’ MOTION FOR
PRELIMINARY INJUNCTION
Judge: Hon. André Birotte Jr.
Ctrm: 4

Defendant and CounterClaimant.

19
20
21
22
23
24
25
26
27
28

ER218

-116-CV-04109-AB (PLAX)
[PROPOSED] ORDER

Case 2:16-cv-04109-AB-PLA Document 123 Filed 10/28/16 Page 2 of 2 Page ID #:4601

1

Upon consideration of the Parties’ Stipulation Regarding Hearing Date on

2 Plaintiffs’ Motion for Preliminary Injunction, and good cause appearing therefor,
3

IT IS HEREBY ORDERED THAT:

4

The hearing on Plaintiffs’ Motion for Preliminary Injunction (Dkt. 27) shall

5 be moved from November 21, 2016, at 10:00 a.m., to November 14, 2016, at 10:00
6 a.m.
7
8 DATED: October 28, 2016
9

THE HONORABLE ANDRÉ BIROTTE JR.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ER219

-216-CV-04109-AB (PLAX)
[PROPOSED] ORDER

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 1 of 63 Page ID #:4362

1 R:xan G. Baker (Bar No. 214036)
[e-mail]
2 Jajme Marquart (Bar No. 200344)
Jmarquart(ci),bakermarquart. com
3 Scott M. Mafzahn (Bar No. 229204)
[e-mail]
4 Brian T. Grace (Bar No. 307826)
bgrace@,bakermarquart.com
5 BAKER 'M:ARQUART LLP
2029 Century Park East, Sixteenth Floor
6 Los Angeles, California 90067
Telephone: [phone]
7 Facsimile: [phone]

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8 Peter K. Stris (Bar No. 216226)
peter. stris(a),strismaher. com
9 Brendan Maher (!3ar No. 217043)
[e-mail]
10 Elizabeth Brannen ~ar No. 226234)
elizabeth. brannen strismaher.com
11 Daniel Geys~r
Bar o. 230405)
daniel.geyser strismaher.com
12 STRIS & M
R LLP
725 South Figueroa Street;. Suite 1830
13 Los Angeles, California 9u017
Telephone: [phone]
14 Facsimile: [phone]
15 David W. Quinto (Bar No. 106232)
dquinto(a), VidAngel.com
16 3007 Franklin Canyon Drive
Beverly Hills[ California 9021 o
17 Telephone: [phone]
Facsimile:
732) 377-0388
18 Attorneys for Defendant and
19 Counterclaimant VidAngel, Inc.
20

UNITED STATES DISTRICT COURT

21

CENTRAL DISTRICT OF CALIFORNIA

22
23
24
25

WESTERN DIVISION
DISNEY ENTERPRISES, INC.;
LUCASFILM LTD. LLC;
TWENTIETH CENTURY FOX FILM
CORPORATION; AND WARNER
BROS. ENTERTAINMENT, INC.,

26
27

Plaintiffs,

CASE NO. 16-cv-04109-AB (PLAx)

SUPPLEMENTAL DECLARATION
OF NEAL HARMON IN
OPPOSITION TO MOTION FOR
ENTRY OF PRELIMINARY
INJUNCTION

vs.

28

ER220

SUPPLEMENTAL DECLARATION OF NEAL
HARMON

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 2 of 63 Page ID #:4363

1

Judge: Hon. Andre Birotte Jr.

VIDANGEL, INC.,

Date: October 31, 2016
Time: 10:00 a.m.
Courtroom: 4

Defendant.

2
3

Trial Date: None Set

4
5
6

VIDANGEL, INC.,
Counterclaimant,

7
vs.

8
9
10
11
ex:

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DISNEY ENTERPRISES, INC.;
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BROS. ENTERTAINMENT, INC.,

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ER221

1

SUPPLEMENTAL DECLARATION OF NEAL
HARMON

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 3 of 63 Page ID #:4364

1 I, Neal Harmon, declare:
2

1.

I am a founder and the Chief Executive Officer of defendant and

3

counterclaimant VidAngel, Inc. ("VidAngel"). I submit this supplemental

4

declaration in support ofVidAngel's Memorandum of Points and Authorities in

5

Opposition to Plaintiffs' Motion for Preliminary Injunction. I have personal

6

knowledge of the facts set forth herein and, if called as a witness, I could and would

7

testify competently thereto.

8
9

2.

On October 14, 2016, Congresswoman Mia B. Love sent me a letter in

which she stated: "I am writing to express my view that motion picture content

10

filtering services are very much in the public interest ... [and] that the availability

11

of such services is consistent with Congressional intent in passing the Family Movie

12

Act: to facilitate parental control over the content viewed by their children in their

13

own homes." Congresswoman Love also explained that, "[the] Family Movie Act

14

thus seeks to immunize any service that satisfies its requirements from claims

u""' 15

brought under any other provision of either the Copyright Act or the Lanham

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Trademark Act." She additionally explained that, "As a Member of Congress, I

17

believe that motion picture content filtering services provide an important public

18

benefit and correspond with the objectives of the Family Movie Act by allowing
parents to protect their families from content that they consider inappropriate." A

20

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true and correct copy of Congresswoman Love's letter is attached as Exhibit A.

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21

3.

I also wish to address contentions made in Disney's Reply

22

Memorandum regarding ClearPlay's service. Disney argues that ClearPlay offers a

23

satisfactory filtering service for content streamed to Google Play users. (Reply

24

Memorandum at pp. 2, 11.) That is untrue.

25

4.

ClearPlay's service relies on the YouTube streaming platform owned

26

by Google. As one would expect, that platform can be used only by Google Play

27

customers and is thus of no use to the vast majority of American families who are

28

ER222

2

SUPPLEMENTAL DECLARATION OF NEAL
HARMON

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 4 of 63 Page ID #:4365

1 not Google Play customers. It is also very difficult to use. Attached as Exhibit B is
2

a true and correct copy of a printout made by a VidAngel employee acting under my

3

supervision reflecting her inability to get ClearPlay's filtered streaming service to

4

work.
5.

5

To use the YouTube platform, ClearPlay must accept both the Google

6

Play and YouTube terms of service. However, as VidAngel has learned the hard

7

way, providing a service that filters content streamed by Google Play users violates

8

the Google Play and YouTube terms of service. In December 2013, when VidAngel

9

pioneered a model nearly identical to ClearPlay's service, Google notified VidAngel

10

that its filtering technology violated YouTube's terms of service, which prohibit the

11

filtering of content. As I explained in my initial declaration, paragraphs 8-16,

12

Google modified its Chromecast device to prevent VidAngel from filtering content

13

paid for by Chromecast users after the studios put Google on notice that it violated

14

their terms of service to the extent it allowed third parties to filter content they

t3' •

15

provided.

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6.

Notwithstanding Disney's suggestion that ClearPlay is employing a

17

permissible means to filter streamed content, ClearPlay provides that service

18

without any consent or license from the studios and without paying the studios

19

anything. As might be expected, Disney has done nothing to enable ClearPlay's

20

filtering service. Moreover, ClearPlay is living on borrowed time. When Disney's

21

litigation with VidAngel is concluded, Disney will be free to invoke its terms of

22

service to force Google to put an end to ClearPlay's service. Indeed, Disney

23

previously sued ClearPlay over its primary filtering technology--one that the

24

Register of Copyrights termed lawful. The judge in that action dismissed Disney's

25

claims after the Family Movie Act took effect. Because its service filters streamed

26

content in violation of the Google Play and YouTube terms of service, ClearPlay's

27

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current model is not a long term option for providing the public with access to

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28

ER223

3

SUPPLEMENTAL DECLARATION OF NEAL
HARMON

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 5 of 63 Page ID #:4366

1

filtered streamed content.

2

7.

Still further, due to constraints imposed by Disney and the other MP AA

3

studios and the implementation of ClearPlay's technology, ClearPlay is limited in

4

the availability and quality of movies it can offer to consumers. ClearPlay

5

technology cannot work on approximately 9 .2% of the entire Google Play movie

6

database as to which studios prevent embedding on Y ouTube. This means that

7

ClearPlay customers cannot even filter hundreds of the most popular movies in

8

Google's library, including many of Disney's most popular movies: Captain

9

America: Winter Soldier, Marvel 's The Avengers, Tron Legacy, Iron Man 3,

10

Secretariat, Guardians of the Galaxy, and the entire Star Wars collection.

11

ClearPlay's movie selection is further limited by its refusal to filter films with "too

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much content," leading to unmet customer demand.

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platforms. The studios' distribution agreements prohibit the use of ClearPlay apps

15

on modem devices, including Roku, Apple TV, Chromecast, FireTV, Android TV,

16

Xbox, iOS, and Android.

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content on Netflix, iTunes, Hulu, Amazon Prime, Vudu, and HBO Go, meaning a

19

wide array of popular television shows are completely unavailable on its filtering

20

service.

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21

10.

ClearPlay is additionally technologically prohibited from filtering

ClearPlay users can stream filtered content only through computer web

22

browsers. As a result, ClearPlay is unable to provide the public with access to

23

filtered streamed content on most popular devices and platforms. Moreover,

24

ClearPlay users can filter only standard-definition (SD) content despite the public's

25

growing demand for high-definition (HD) and Blu-ray content.
11.

26
27

Disney's further claim that ClearPlay users can filter content streamed

to their televisions using Google's Chromecast or Apple TV is misleading.

28

ER224

4

SUPPLEMENTAL DECLARATION OF NEAL
HARMON

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 6 of 63 Page ID #:4367

1

ClearPlay users must use a process called "mirroring" to watch filtered content

2

using the Chromecast or Apple TV. "Mirroring" results in a poor viewing

3

experience that often provides very choppy playback and drops video frames. Even

4

ClearPlay acknowledges these shortcomings on its company blog: "We have seen

5

some slowness with the video playing (sic) on the TV when mirroring." Attached as

6

Exhibit B is a true and correct copy of a screenshot of the ClearPlay blog post.
12.

7

Based on my review of ClearPlay customer complaints, the most

8

frequent complaint is that ClearPlay's filters often stop working. Tellingly,

9

ClearPlay customer complaints include the following:

10

a. "I owned the DVD player years ago and had lots of technical trouble

11

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with it. I recently signed up again so that I could try their streaming
system, but found that their streaming options are very limited. I'm

13

trying to cancel now. They will only cancel if you phone them AND

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b. "Let me start to say that we really prefer to watch edited videos. In

17

this, the DVD player works great-- no more language and nudity

18

and swearing. We love it. Not seamless edits like Family Flix used
to do, but does the job well enough that we don't mind. We wish it

20

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had HDMI output and quality"

21

c. Another customer in response to the comment above: "I have had

22

the same experience as this person and it seems to be a common

23

thing with the ClearPlay so that is why I now use VidAngel"

24

d. "Any reason why your filter takes out the fertilization scenes from

25

The Martian when Vulgarity is on least? For such an integral part of

26

the movie I feel as if it shouldn't be filtered at the same level as the

27

F words in the movie."

28

ER225

5

SUPPLEMENTAL DECLARATION OF NEAL
HARMON

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 7 of 63 Page ID #:4368

1

e. "The wedding singer takes the Lord's name in vain several times

2

and leaves in several other swear words we had to stop halfway

3

through. Any idea why it was done so poorly?"

4

f. "Trying to watch Kingsmen ..... ClearPlay not blocking the four letter

5

words---HELP!"
g. "ClearPlay does not work, after about 4 players we got one that

6
7

filtered about half the stuff we wanted it to. We were trying to watch

8

a movie one day and we started to hear all kinds of profanity-i think

9

my little brother learned about 4 new words"

10

h. "This review relates to their proprietary DVD player, filter stick and

11

filter downloading service. The (USB) filter stick simply does not

12

work with the DVD player. The DVD player denies it exists. A

13

replacement stick made no difference. Filter downloads on a second

14

filter stick on a different computer with a different OS and different

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15

antivirus protection made no difference. They have weak online

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16

service assistance. Their online help says "it's too difficult to put in

17

writing so call us" and their telephone customer service is open only

18

very limited hours in the work day (Mountain time) so it's far from

19

convenient to the average working joe, especially if you live in the

20

Pacific time zone. So, unless you want to skip some work (or waste

21

time on Saturday), you are out of luck. So, I wish it would work, but

22

without a functional filter stick that talks with the DVD player (via

23

its USB port) you are stuck with a mediocre DVD player that will

24

remind you that it doesn't have a working filter when you try to

25

watch a movie, rubbing salt into the wound."

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As VidAngel's COO recently noted in a blog post dated October 4,

2016: "Disney and friends have criticized VidAngel's choice of ad agency. [They

28

ER226

6

SUPPLEMENTAL DECLARATION OF NEAL
HARMON

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 8 of 63 Page ID #:4369

1

said] the owners of VidAngel spend money on their own ad agency to enrich

2

themselves. Which, to be clear, has nothing to do with the legal case and is simply

3

an attempt to smear VidAngel. [The Harmon Brothers] ad agency has created viral

4

ads for Squatty Potty, PouPourii, Fiber Fix, Purple, and even presidential

5

candidate Gary Johnson (through a Super PAC). Harmon Brothers also helped set a

6

Guinness World Record for orchestrating the world's largest live nativity with The

7

Piano Guys. Altogether, Harmon Brothers' videos have received over 300 million

8

views. Harmon Brothers has created a series of successful ads for VidAngel -

9

including 'Paintball,' 'Angel and Demon,' and 'Game ofThronez' - and accrued

10
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VidAngel's service launched publicly, sales increased by 2,600%. VidAngel and

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over 20 million views of VidAngel ads. Within 10 months after

Harmon Brothers have always made their relationship public."

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I also wish to call the Court's attention to various articles that have

appeared in the press concerning VidAngel's service since I filed my initial
declaration. Attached as Exhibits C-N are true and correct copies of "Upsetting the

16

800-Pound Hollywood Gorilla" published by dailycaller.com on October 12, 2016;

17

"Hollywood Sues to Stop Parents From Filtering Sex, Profanity in Movies"

18

published by the Washington Examiner on September 20, 2016; "VidAngel Earns
Support Amid Legal Battles With Disney, Lucasfilm and More" from KUTY.com

20

on September 20, 2016; "Hollywood Sues to Stop Filtering of Offensive Content"

21

from NE News Now on September 26, 2016; Opinion: '"Clean Up' Films, or Clean

22

Up Filming?" published by The Los Angeles Times; "3 Ways to Watch Movies for

23

$1 With VidAngel" published by A Purpose Driven Wife-a Christian - Mom of 3 -

24

Marine Wife & Everything in Between blog; "The Movie Filtering Site We Love!"

25

published by Raising Arrows: Large Family Homeschooling & Homemaking blog

26

September 23, 2016; "How to Make any Movie Family Friendly" published by

27

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Frugally Blonde blog September 23, 2016; "VidAngel vs. Disney: PTC,

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28

ER227

7

SUPPLEMENTAL DECLARATION OF NEAL
HARMON

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 9 of 63 Page ID #:4370

ER228

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 10 of 63 Page ID #:4371

EXHIBIT A
ER229

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 11 of 63 Page ID #:4372
MIA B. LOVE

217 CANNON HOUSE OFFICE 6UILOING
WASHINGTON. DC 20515

4TH DtSTAICT, UTAH

l202) 225--3011
9067

COMMITIEE ON FINANCIAL SERVICES
SUBCOMMITIEE ON
FlNANCIAl INSTITUTIONS
SUBCOMMITIEE ON
MONETARY POLICY AND TRADE

Q!ungrts.a: uf t4e lflnttch ~tntt.a:
~ouse

of ~epresentatibes
llfan4ingt.on. IQL 2U515-4404

s.

1300

w., SUITE

!801) 996-8729
website: www.love.house.gov

October 14, 2016
Neal Harmon
Chief Executive Officer
VidAngel, Inc.
249 N. University Ave.
Provo, UT 84601

Dear Mr. Harmon:
I am writing to express my view that motion picture content filtering services are very much in
the public interest. Furthermore, I would like to convey that the availability of such services is
consistent with Congressional intent in passing the Family Movie Act: to facilitate parental
control over the content viewed by their children in their own homes.
Congress passed the Family Movie Act in 2005 (codified at 17 U.S.C. § 110(11) and 15 U.S.C. §
1114(3)) to clarify that existing law allows companies to offer services that filter certain material
out of movies for private viewing. The Family Movie Act attempts to balance the rights of all
stakeholders. First, it aims to protect studios' economic interests by requiring that consumers
buy a lawful copy of any work to be filtered. It also seeks to protect the moral rights of motion
picture artists by prohibiting filtering services from making any copy of a filtered work or
performing any filtered work publicly. Finally, the act endeavors to allow parents to decide what
their children see and hear in the privacy of their homes by establishing requirements for the
streaming of filtered content to families without requiring the consent of the copyright
holders. The Family Movie Act thus seeks to immunize any service that satisfies its
requirements from claims brought under any other provision of either the Copyright Act or the
Lanham Trademark Act.
As a Member of Congress, I believe that motion picture content filtering services provide an
important public benefit and correspond with the objectives of the Family Movie Act by
allowing parents to protect their families from content that they consider inappropriate.
Very truly yours,

Mia B. Love
Member of Congress

PRINTED ON RECYCLED PAPER

ER230

101

WEST JORDAN, UT ll4088

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 12 of 63 Page ID #:4373

EXHIBIT B
ER231

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 13 of 63 Page ID #:4374

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Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 14 of 63 Page ID #:4375

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Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 15 of 63 Page ID #:4376

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Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 16 of 63 Page ID #:4377

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Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 17 of 63 Page ID #:4378

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Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 18 of 63 Page ID #:4379

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Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 19 of 63 Page ID #:4380

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Related Cases Last Modified Date

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6/29/2013

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 20 of 63 Page ID #:4381

EXHIBIT C
ER239

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 21 of 63 Page ID #:4382

I
Upsetting The 800-Pound Hollywood Gorilla

TIM WINTER

President, Parents Television Council

It's not often the behemoth that is Hollywood unites against families, but that's precisely what is
happening to a company that offers families the ability to filter f-words and other adult content
from streamed movies and TV.
Disney, Lucasfilm, 201h Century Fox, and Warner Bros. have collectively sued a company called
VidAngel which offers those aforementioned filtering capabilities.
Yes, you read that right. Disney doesn't want parents to have the ability to skip past profanity,
sex scenes, and graphic violence when their children are watching Disney-produced
entertainment.

ER240

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 22 of 63 Page ID #:4383

The crux of VidAngel's business model rests on the Family Movie Act, passed by Congress and
signed into law back in 2005, which allows for the creation of technology so parents can filter
potentially offensive movie content when they're watching inside their homes.
When Congress passed the Family Movie Act, the legislative intent was crystal clear: to properly balance
the legal and reasonable business needs of Hollywood with the strong public interest goals of making
content filtering available to American families.
VidAngel has carefully crafted its business operations - at great financial peril to itself - so as to
meet the guidelines set forth in the legislation. They are clearly in compliance with both
the spirit and the letter of the Family Movie Act. And, just as the legislation intended, millions
of families who otherwise would not be able to view a film or a program are now able to do so.
Ironically, the VidAngel service actually broadens the market of potential customers for
Hollywood's products. And why wouldn't a business want to dramatically expand its own
marketplace? Is it really about the sanctity of the creative community's "artwork?"
The studios suing VidAngel must believe that if a standard is good, then a double-standard is
twice as good. They are eager to alter or filter content when it suits their own desires.
About a decade ago, NBC secured the broadcast rights to the beloved children's animated
series Veggie Tales. But when the network aired the program, they removed references to God despite the program being created by Christian producers who hoped to share Christian values.
And when the television program Duck Dynasty was among the most-watched programs every
week, "bleeps" were edited into the programming to suggest harsh profanity was being used,
even when no actual profanity was being spoken. The network wanted to create the false
impression in order to bring more "edginess" to the show, despite the fact that the show was so
popular precisely because it was squeaky-clean.
And on every program on every network, promotional materials are placed above or below the
program during its broadcast. The "altering" of the producer's "work" occurs all hours of every
day on every network. The notion that Hollywood must vigorously prevent content filtering or
editing for the sake of the creative community is simply laughable.
A petition to support VidAngel has been started and can be found at .2slY_~Iilteriti&com_.
VidAngel allows each parent and each family to consume entertainment content inside their
home precisely in accord with their personal family standards. If the Hollywood studios convince
the Courts to obstruct VidAngel's legitimate and lawful business, American families will be
deprived of the very right granted to them by Congress in the Family Movie Act.

A former MGM and NBC executive, Tim Winter is president of the Parents Television Council
and a member of the California Bar Association.

ER241

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 23 of 63 Page ID #:4384

EXHIBIT D
ER242

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 24 of 63 Page ID #:4385

Hollywood sues to stop filtering of offensive
content

A company specializing in filtering
indecent content in movies and television programs is seeing a surge in
grassroots support as it faces a legal challenge from movie and broadcast
executives in Hollywood.

that blocks offensive language, nudity, violence and other forms of indecent content
from films and TV shows.

The company argues that this type of service is authorized under the 2005 Family
Movie Act, and many pro-family groups in agreement. Currently, some two dozen profamily leaders are standing with VidAngel during this legal battle.

ER243

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 25 of 63 Page ID #:4386

Dan Gainor, who serves with the

says that conservatives were

told that Hollywood would work with them about content, but this is apparently not the
case.
"They want to ram through whatever content they want, and they expect us not just to
accept it, but to shut up about it," Gainor expressed. "And it is outlandish that they would
expect families, viewers and customers have no say in what they're allowed to watch."
Gainor explained that the lawsuit from the entertainment industry is based on a
rationalization.
"They're using legalism to basically defend what is an indefensible argument - that
you're not allowed to avoid the bad stuff we try to jam in there and force feed to your
kids," the pro-family advocate told OneNewsNow.
The entertainment and technology expert insists that their argument is obviously not
true.

ER244

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 26 of 63 Page ID #:4387

EXHIBIT E
ER245

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 27 of 63 Page ID #:4388

VAS·»••

SALT LAKE CITY. UTAH

VidAngel earns support amid
legal battles with Disney,
Lucasfilm and more
by Sara Weber
Tuesda , September 20th 2016

.'..I

'

AA
(KUTY) A Utah-based entertainment platform that allows users to censor content
from movies and television shows is garnering support despite its legal troubles with
major production companies.
-'-'-'c:; __:::.•o.:;;o..::_:,

which offers its subscribers the ability to filter nudity, violence and other

subject matter they may find offensive, announced Tuesday it has gathered the
support of more than 20 leaders from religious and values-based groups like The
Parents Television Council and the Media Research Center. It also announced that 57

ER246

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 28 of 63 Page ID #:4389

million Americans are likely to use the filtering service, according to a poll conducted
by the National Research Group.
"VidAngel offers a service that is critically important," said Pastor Jim Garlow of San
Diego's Skyline Church. "Our community, which represents thousands of families,
cares deeply about being able to make thoughtful decisions about the entertainment
they consume in the home."
But major entertainment entities like Disney, Warner Bros., 20th Century Fox and
Lucasfilm have all taken legal action against VidAngel claiming that the service is
operating as an illegal streaming service.
VidAngel has since filed a counter lawsuit against the companies for violating
antitrust laws and claims its services are protected by the

ER247

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 29 of 63 Page ID #:4390

EXHIBIT F
ER248

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 30 of 63 Page ID #:4391

Hollywood sues to stop parents
from filtering sex, profanity in
•
movies
By PAUL BEDARD (@SECRETSBEDARD) • 9120116 10:06 AM

An entertainment company that is acting on a 2005 federal law to let parents filter sex, violence
and profanity from movies is under attack in Hollywood, drawing support from at least 16
family groups who are threatening to urge a boycott by the 52 million "values audience."

VidAngel, whose motto is "watch movies however the bleep you want," took advantage of the
Family Movie Act of 2005 and created a filtering system for users who are eager to watch
movies but are concerned about offensive content.

It has a simple model: Consumers buy a full-price movie through its system and choose what
words and actions they want filtered out. VidAngel does the work and then streams the movie
to the consumer. Then they can buy the movie permanently or pay as little as $1 for one view.

VidAngel sees it as a win-win for studios. An individual movie is bought for every customer,
and more customers are buying because they can filter out the offending language and scenes
that would have kept them from watching.

ER249

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 31 of 63 Page ID #:4392

WHO ARE THE "VALUES" AUDIENCE?
VAUJES A!IDl£NCE"

But Hollywood said the model isn't legal, amounts to a cheap streaming system for their
products and is angered that the movie industry's art is being tampered with. And it is suing.

The fight has turned into an ugly legal battle, and now many Washington-based family groups
are going to bat in court for VidAngel, saying the service is legal under the Family Movie Act.

Media Research Center founder and President Brent Bozell told the Washington

Examiner, "Hollywood should be applauding VidAngel for saving them consumers who
otherwise won't buy their product. Instead, Hollywood is on the warpath against VidAngel.
They want families poisoned.

"In effect, Hollywood execs are saying, 'You can only watch our movies if you let us keep all
the gratuitous garbage that offends your family.' How reprehensible of Hollywood. Good for
VidAngel for fighting Goliath."

Donna Rice Hughes, whose Enough Is Enough group has convinced McDonald's restaurants
and others to filter porn from free Internet offered at stores, added, "Protecting youth from
pornography and other objectionable online content should be shared by the government,
corporate America and the parents.

ER250

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 32 of 63 Page ID #:4393

"It seems to me that VidAngel is making it much easier for parents to be empowered to easily
and economically manage the type of film content their children view online."

Whatever the outcome, polling data provided to the Examiner shows that millions want to be
able to filter movies and TV shows and amount to an enormous market Hollywood is missing.

The survey found that the "values audience" represent 37 percent of the entertainment market,
are mostly Christian and have kids. Some 57 percent said it is very important for them to know
the content is clean before watching, and 82 percent of parents eager to use a filter system
before their children watch.

Paul Bedard, the Washington Examiner's "Washington Secrets" columnist, can be contacted
at [e-mail]

ER251

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 33 of 63 Page ID #:4394

EXHIBIT G
ER252

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 34 of 63 Page ID #:4395

'Clean up' films, or clean
up filming?
To the editor: What about simply not watching films that one already knows
have offending scenes and words in them?
That surely would send more of a message (if one feels that it is necessary)
than paying someone to first buy, and then somehow censor, and then send
you, a questionable film for your viewing.

Doug Stokes, Duarte

To the editor: I hope that VidAngel does well. It is long overdue for
something to be done about Hollywood's debasement of the beautiful English
language.
And, yes, many people do not need to be hit over head with how to have sex.
We all know about sex - we learn about it in school. How about leaving
something to the imagination?

Rita Burton, Pacific Palisades

ER253

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 35 of 63 Page ID #:4396

To the editor: Instead of an initiative to require performers in adult films to
use condoms during sex scenes, how about an initiative that proposes
prohibition of filming such sex scenes for public viewing ever?
Barbara Hill, Anaheim

ER254

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 36 of 63 Page ID #:4397

EXHIBIT H
ER255

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 37 of 63 Page ID #:4398

Family
is a big deal our house. I sometimes have popcorn, we make ice
cream floats, and I make delicious homemade pizza. It was a
I did
growing up and it was one of the best things about home, that I love. So I want to
provide that for my family, create memorable memories for my children to enjoy
and they can pass on to their family, just like I'm doing now.
I'm very consistent with it. In the morning I ask the kids what kind of pizza they like,
pepperoni, Chicken Alfredo, or Cheese pizza for my husband who doesn't eat
meat and so on. Getting movies my children can watch without bad language or
bloody violence can be a little difficult and if you LOVE to
then this is
for you. When I found Vidangel it blessed my soul.

is a streaming service where you can watch movies for $1. I was shocked
when I saw this and right away checked it out. I thought it was going to be $1.09,
$1.25 or even $1.50 ... NOPE, just $1 ! In addition to that, What's different about all
other streaming services is that Vidangel gives you the option to filter out any kind of
violence, sex, language, etc. that you don't want your family to watch. You get to
pick and choose from the filters in the movie, what you don't want to watch.

ER256

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 38 of 63 Page ID #:4399

New Release Movie Prices
iTunes

Amazon
Google Play

$3.99
$3.99
$3.99

c:::::::>'

Vidfln.tp!L

$1.00*
*per night with sellback

Even when I get to have "Me time" or even
with hubby, I don't want to
get bombarded with
. I want to enjoy
the movie content without having to cover my eyes or my children eyes. They do
this process legally by selling you the moving and giving you the option to sell it
back to them. You can watch movies for $1 on your Computer/Laptop,
ipad/iphone or on Roku (This is my personal favorite).
Check out this video

created with a powerful message.

You buy the movie for $20. You can sell it back to
and they will credit your
account $19. You can then use that credit to get another movie or cash out your
account. I like to leave it in my account for Friday family movie nights!

ER257

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 39 of 63 Page ID #:4400

Once you put in the filters, you can watch the movie anyway you want. I
watched
with some of the filters and I was so into the
movie that I forgot I even put in filters for the movie, I couldn't tell. Here is a video
below on how you can sign up and get started with watching movies for $1.

I even had the opportunity to show my children the whole
, starting
from the beginning. If you want to start from the beginning, click the link above or if
you want to see the recent Start Wars movie, The Force Awakens, Click below.

ER258

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 40 of 63 Page ID #:4401

EXHIBIT I
ER259

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 41 of 63 Page ID #:4402

The Movie iltering

ite We

Some posts contain affiliate links.
SEPTEMBER 23, 2016: l

Tonight is Roberts Family Movie Night. We pop popcorn and dredge it in
seasonings (my favorite is this
!). We cram onto
the big U-shaped couch that came with the house, and we stay up entirely too
late, laughing and enjoying a movie together.

As our children have gotten older, it's been harder to find movies that
everyone enjoys. Often, we have to watch a "little kid" movie earlier in the
evening and switch to a "big kid" movie later on.
I still remember the night my husband rented Goonies. He remembered it
from his childhood and wanted to share the film with the kids. A few minutes

ER260

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 42 of 63 Page ID #:4403

into the movie it became obvious we would NOT be sharing Goonies with the
kids. EEK!
But, then we found
. I don't even remember how we found out about
the site. We joined while it was still in beta and helped make some of the
selections that built their first library of films available for filtering. One of
those movies was Goonies!
Since that day, we've been loyal fans of VidAngel. We have watched many,
many movies that we never would have been able to watch
otherwise. Movies that have merit and are worth the watching, but needed
some cleaning up so the entire family could enjoy them.
The way that
works is simple. You "buy" your first movie for
$20. You choose the filters you want on - everything from language to
violence to immodesty - and then watch the movie with those things taken
out. There is very little disruption to the film, so you aren't getting huge blips
and bleeps, just smooth transitions and muted language. (We have our filters
preset now, so it doesn't take me very long to go in and check over the filters
each time we watch a movie.)
After you watch the movie, you sell the movie back for $19. That money goes
into a credit account on VidAngel. The next time you "buy"/rent a movie, your
cost is only $1 because you have that $19 credit. And right now, if you sign
up and watch a movie, you can then turn around and invite other friends and
family to join, and once they rent their very first movie, you receive a $5 credit
to your account, giving you 5 FREE MOVIES!

We have tried several different filtering programs, and VidAngel is by far the
best! Plus, you can request movies for their team to filter! Your teens can
watch Schindler's List for school without needing to see the nudity. You and
your spouse can settle in for a movie night with an action/adventure film that
doesn't include any language. Your little ones can be in the same room when
a movie is playing because you've already taken out everything that you don't
want your family to see!

ER261

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 43 of 63 Page ID #:4404

We haven't decided yet what we'll be watching tonight for Roberts Family
Movie Night, but you can be certain it will include a
movie! Why not
join us?l
And yes, those are links that will give our family a $5 credit - thank you!

ER262

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 44 of 63 Page ID #:4405

EXHIBIT
ER263

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 45 of 63 Page ID #:4406

How To Make Any Movie Family Friendly
september 23 by : '

-------------··'*··-·' ----------I remember growing up we would otlen tape movies and shows on our VCR.
Remember those old things? We had taped A Christmas Story, Back to the Future,
Pretty Woman, and much more. Ifl was bored, I could just grab a movie to watch. It
was awesome!

As an adult, I love to share movies that my husband and I watched growing up with
my son. We love to watch A Christmas Story every year before Christmas.
Unfortunately, we kept running into a problem. ·rhe movies that we grew up watching
were edited for tv. I don't remember actually seeing Doc getting shot in Back to the
Future and we were completely shocked at all the things in National Lampoons

ER264

Case 2:16-cv-04109-AB-PLA Document 110 Filed 10/17/16 Page 46 of 63 Page ID #:4407

Christmas Vacation. Our favorite movies we watched growing up weren't family
appropriate.
For years we just talked about what we would watch with our son when he was older.
Then a few months ago a blogger friend mentioned
It's a video streaming
service that allows you to edit what you are going to watch. You can edit out swear
words, violent scenes, or just about anything else you would want. It is absolutely
amazmg.
We have used it a few times now to watch movies that I normally wouldn't let my son
watch. He loves it because he gets to watch movies he nonnally wouldn't be allowed
to watch, I love it because I can edit out all the things I don't want him to see. You
can watch older movies or the movies that just came out. You can see how to make
any movie family friendly with

If you haven't signed up with ;'
you can sign up for free,
. Once you sign
up just choose the movie you want to watch and click on add to watchlist. We
watched National Lampoon's Family Vacation. It is a movie my husband loved
growing up, but it rated R so inappropriate for my 14-year-old.

National Lampoon's Vacation
RATED R

1h 38m

lRAJLER

fllTERS

StiARE

WATCHL!t•l

HIDE THIS MOVlf

Next, you will want to click on the filters button so you can go through and set all the
filters.

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It will list out all of the filters that are available. You can easily go through each one
of the categories and choose what works for your family. They have profanity, sexual
remarks, blasphemy, crude talk, and discriminatory language edits.

Once you have edited out all the language you can move on to scenes you might find
inappropriate. You can have it skip over scenes that show things like nudity.

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You can also delete scenes that you may find violent. Each one disappears with just a
click. I have noticed that the editing of them is pretty good. My son had no idea a
couple of the things even happened.

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When you are finished editing the movie it will show you the total number of filters
that are in the movie. As you can see, we left a lot of stuff in the movie. Because my
kiddo is almost 15 I didn't have a problem with a lot of the stuff in the movie. For me,
it is more editing out the curse words.

National Lampoon's Vacation
RATED R

111 38m

TRAILER

FILTERS

SHARE

WATCHL!ST

'C' HIDE THIS MOVIE

You can now choose to buy the movie. You will pay $20 to stream it and get $19 back
when you return it within 24 hours. Just like Redbox, it is $1 a day. So if you return it
two days later it will cost you $2. Unlike Redbox, you get to do everything at home
and don't even have to leave the house. Plus, you can enable all of your own filters.
Although I feel like they do a great job of editing the movie without it looking too
edited I wouldn't recommend cutting out all of the filters. You probably really don't
want your 5 year old watching a rated R movie even if it is edited.
I would
recommend going down one rating from what you normally would. If you let your
child watch PG movies then a PG-13 edited movie should be good.
I love that with
we can show our son movies that we enjoyed from our
childhood and let him watch movies he normally couldn't see, all for $1. It's a great
way for us to spend a family night for a reasonable price. Has your family
tried ,
yet? What did you think?

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EXHIBIT K
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CP
Vid.Angel vs. Disney: PTC, MovieGuide Defend Family-Friendly
Streaming Site as Lawful

Walt Disney Company Chairman and Chief Executive Officer Robert lger announces Disney's new
standards for food advertising on their programming targeting kids and families at the Newseum in
Washington, June 5, 2012. REUTERS/Gary Cameron/File Photo
VidAngel, a company that enables the filtering of adult content from TV and movies, is facing a lawsuit
from some of the biggest names in film: the Walt Disney Company, Lucasfilms, 20th Century Fox, and
Warner Bros. The four industry giants claim that the video streaming service is infringing on its
copyrighted material.
According to the

Disney and the plaintiffs are suing for copyright infringement and for violation of

the Digital Millennium Copyright Act. The plaintiffs also contend that the Utah-based movie filtering
service does not have authorization to use its films and has failed to pay for the licensing of titles.
The irony is that VidAngel, a company intending to help families filter unwanted content, is being sued by
Disney, a film and TV entity known to produce some of the more family-friendly material.
Several highly-regarded TV and film watchdogs are chiming in on the issue.
Asked if he thought VidAngel was pirating content, Parents Television Council (PTC) President Tim
Winter was clear about his convictions, telling The Christian Post during an interview on Monday:
"The answer is, 'No.' They (VidAngel) are doing it (streaming content) lawfully. They are doing it properly,"
he said.
"What they're doing is they're actually buying physical copies of the DVDs, and then as a subscriber, you
then purchase from them that DVD copy, and then you have the right to stream it because you own it, you

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bought it, and then what you are able to do is that you are able to sell it back to VidAngel for part of the
purchase price."
Winter told CP that VidAngel's initial point of sale is key. "So it's a very important distinction that the
VidAngel procedure is including. It's not just they're taking some movie and streaming it for profit without
giving Disney any money. They're actually paying Disney for a copy of the DVD."
The PTC president said Disney's current business structure forces VidAngel to take the risk of paying for
thousands of DVDs, not knowing if customers will make a purchase.
Winter added that reselling DVDs was also a big risk. "VidAngel has to buy a bunch of copies and hope
that they've estimated correctly about how many that are not going to be reselling."
MovieGuide Founder and Publisher Dr. Ted Baehr, who used to be an attorney in the U.S. Attorney's of
the district of New York, also supports VidAngel.
"Something is not a law until a court decides that it's legal or illegal," he told The Christian Post during
an interview on Monday.
In VidAngel's case Baehr said, "If you or I buy a DVD we can do anything we want with it because it's
ours."
Baehr likened VidAngel's case to his days in law school when there had been a dispute over the airspace
between a PanAm building in New York City that had been constructed over Grand Central Station.
"So we were trying to figure out what value was a piece of an apartment hanging in mid-air, full of nothing,
over the Grand Central Station ... Now [regarding VidAngel] you're not just talking about a space in the air
... you're now talking about a space -

in a space -

in a space -

in somebody's electronic thought box.

It would make 'The Matrix' look like a simple equation."
Baehr's bottom line on VidAngel: "I think from the act, and from the intention, and from the classic point of
view, that once you buy something, you can feed it through your shredder, you can do anything you want
with it ... "
Baehr, however, is not in total agreement with the services VidAngel offers. "I don't think just
whitewashing something or just erasing the foul language is a solution ... There's a point in which
VidAngel's work is solutary and beneficial for families. I think it's like seventy or eighty percent beneficial

"The court will make the law when it decides on this case."
Recently, the plaintiffs in the case against VidAngel asked a federal judge to force the video streaming
company to shut down its operations while the suit is pending, and has requested a jury trial. VidAngel
has filed a countersuit to prove that it is in fact not pirating copyrighted material.

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EXHIBIT L
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THE CHRISTIAN POST
Sex, Violence, and Cussing Be Gone
Just what every home needs-an explicit filter on Hollywood. VidAngel takes the garbage out for
you-all the bad language and graphic scenes-leaving you with a family-friendly film.
As VidAngel CEO explains, "We created this company because-as parents and consumers-we
understand deeply the surging demand for filtering content to suit the needs of families."

VidAngel has a library of over 2,500 TV and movie titles available-for multiple devices like
smartphones, computers, and AppleTV.
The service even allows users to pick their filter strength. The best part is the cost: users purchase
the video on line for $20. 00 and can sell it back for a credit of $19.00 if viewed within 24 hours. That's
$1.00 for filtered entertainment.

For families concerned with violence, sex, and foul language, this service alleviates the bad and
leaves the good. VidAngel advises consumers if excessive filtering will remove large portions of the
movie.

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What's not to like? Well, Hollywood doesn't like it. But under the 2005 Family Movie Act, third parties
can provide the filtering that Hollywood currently does not. Disney and Warner Bros. among others
consider VidAngel's actions to be an "unauthorized" use of film streaming. But so far, it hasn't
slowed VidAngel down, and for consumers, it's cheap, clean entertainment. A real deal.

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EXHIBIT M
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MEDIA

PTC calls out Hollywood for (bleep)

The Parents Television Council is calling out Hollywood for its stance against
filtered content, saying it is a hypocritical double-standard.
Disney, Lucasfilm, 20th Century Fox, and Warner Bros. are suing a company
that offers families the technology to block out offensive content, such as
profanity.
Tim Winter, president of the

, is publically

supporting company VidAngel while pointing out the hypocrisy of Hollywood.
He recalls that when NBC secured the rights to "Veggie Tales" about a
decade ago, the network edited out references to God. More recently, on
A&E's "Duck Dynasty," bleeps were added to portray a harsher program even
though profanity wasn't used.

"Here's an exact opposite position taken by the very same networks that are
now suing a company for filtering," Winter argues. "They can filter when they

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so choose, but if it's something that they don't to choose then they have a
conniption and it's a blatant double-standard."
Winter accuses the Hollywood studios of interfering with VidAngel's business
and depriving families of a right that was granted them by Congress in the
Family Movie Act.
"Despite Congress's solution," he says, "the TV networks are now trying to
resort to the courts to fight for what they want as opposed to what the
Congress has passed, what the president has signed into law, and what has
been longstanding law for over a decade."

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EXHIBIT N
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MommyTipz.com

Keep your Kids and Family
Safe from Violence and
Profanity on Movies
he entertainrnentindustry has evolved greatly in all these years. There has been a lot of ditTercnec in
the kinds of programmes appearing on television. It is in fact a hot potato today. Apar1 from

educational shows, all that we see on TV today are daily soaps. reality shows, movies, comic serials
and other new programmes.

Many a times we tend to associate ourselves with whal we watch so much that it

afl~cls

our daily

activities. Therefore. i1 is important to stay away frorn unwanted and impractical TV prograrnrnes.
This can be done by using VidAngel that comes in different Vici Angel rental costs.

Impact of Visual Media

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We are all so obsessed with television today that we even keep aside important tasks just lo watch
our favorite shows. Kids these days arc so rnuch into television that they know every little detail
about the programmes on TV. They quickly learn how it works. the programme schedule and what
they are all about. Elders as well as kids gel greatly affected by the television programmes and
movies today. There are movies and shows that use vulgar and abusive language that kids tend lo
learn quickly.

Scenes of violence are also shown vvhich leave a bad inrnge of society in the minds

or kids and

ciders. This causes people- to slay indoors due to fear of the daily incidents happening around. Kids
these clays also access the Internet for various purposes. There are many young children who tend to
watch adult movies and contents, which is not a good habit. Children take the information in their
own ways, resulting in unnecessary gathering of information and a waste of their precious time. They
get glued to the television and Internet. ignoring their academics and games.

Safeguard your Kids from Psychological Threat
In order to keep your kids and entire family away from such unwanted contents, it is important to
make use of certain content blockers. Vid!\ngel is one such movie streaming service that is designed
to filter out bad contents from movies or TV shows, with legal permission. It lets you choose the
filters yourself. You can choose the content you want to watch and hear. It filters vulgar language,
scenes, violence. etc. thus letting you watch your favorite movies and shows with family.

The best part of it is that customers can stream contents on their android or !\pp le devices. \vcb
browsers, VidAngel app. Roku. etc. lhe

arc alsci minimal and affordable. It

costs only $1 for streaming in SD and $2 for streaming in HD. You simply have to register \Vith
VidAngel. select your movie and choose the filters. The questionable content \Viii then be removed
and you will be provided with the perfoct rnovie or TV show content that you can watch freely with
everyone.
So overall, VidAngel is a great service that filters unwanted. harsh. sexual and abusive content for
your benefit. Now your family and children will be safo from all the profanity and violence in the
entertainment contents.

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EXHIBIT P
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September 23, 2016
Dave Vance
245 N. University Ave
Provo, UT 84601
Dear Mr. Vance,
My name is Dallin Webb, and I am a student at BYU-Idaho. I hope everything at VidAngel is
going well. I've been aware of recent legal issues the business is dealing with against major
players in the movie industry. I am writing this Jetter to show my support in a time where it is
more important than ever to stand up to today's conventional wisdom.
Although I have only used your service a few times, I can easily see the positive outcomes it will
have in my life, and eventually, my family. Being a part of the LOS community, I have strict
standards when it comes to the quality of entertainment, therefore, I am grateful to know of a
platform that allows me to stay safe in this increasingly immoral society. Let my voice be heard
when I say there is almost nothing more important to me than living in a home that is kept pure
and safe from the influences of the world. VidAngel serves as a necessary tool in this regard.
I pay particular interest to organizations and businesses that defy their current conventional
wisdom. I myself will likely encounter a variety of adverse reactions as I move into the
alternative field of the medical industry. I've read of many examples of how great an effect small
groups of people have had on positive change in the world. The group of people at VidAngel and
its supporters are no different. Thanks for allowing me to vote with my dollars. l wish you all
well this October.

Sincerely,

Dallin Webb
48 W. 2nd S. #42
Rexburg, ID 83440

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1






UNITED STATES DISTRICT COURT



CENTRAL DISTRICT OF CALIFORNIA



WESTERN DIVISION





DISNEY ENTERPRISES, INC.;
LUCASFILM LTD. LLC;
TWENTIETH CENTURY FOX FILM
CORPORATION; AND WARNER
BROS. ENTERTAINMENT, INC.,
Plaintiffs,


vs.




VIDANGEL, INC.,
Defendant.



CASE NO. CV16-04109-AB (PLAx)
[PROPOSED] ORDER
CONTINUING HEARING OF
PLAINTIFFS’ MOTIONS FOR
PRELIMINARY INJUNCTION
AND TO DISMISS VIDANGEL’S
COUNTERCOMPLAINT FROM
OCTOBER 24, 2016, TO OCTOBER
31, 2016
Judge: Hon. André Birotte Jr.





VIDANGEL, INC.,
Counterclaimant,


vs.






DISNEY ENTERPRISES, INC.;
LUCASFILM LTD. LLC;
TWENTIETH CENTURY FOX FILM
CORPORATION; AND WARNER
BROS. ENTERTAINMENT, INC.,



Counterclaim Defendants.






ER288

ORDER CONTINUING HEARING
16-CV-04109-AB (PLAX)

Case 2:16-cv-04109-AB-PLA Document 78 Filed 09/16/16 Page 2 of 2 Page ID #:2685

1

WHEREAS Plaintiffs and Counterclaim Defendants Disney Enterprises, Inc.;

2 Lucasfilm Ltd. LLC; Twentieth Century Fox Film Corporation and Warner Bros.
3 Entertainment Inc. and Defendant and Counter Complainant VidAngel, Inc. have
4 stipulated to continue the hearing of Plaintiffs’ Motions for Preliminary Injunction
5 and to Dismiss VidAngel’s Countercomplaint from 10:00 a.m. Monday, October 24,
6 2016, to 10:00 a.m. Monday, October 31, 2016, and for good cause shown,
IT IS HEREBY ORDERED that Plaintiffs’ Motions for Preliminary

7

8 Injunction and to Dismiss VidAngel’s Countercomplaint be, and hereby are,
9 continued for hearing before this Court on Monday, October 31, 2016, at 10:00 a.m.
10 with all briefing dates to remain as currently set.
11
12

IT IS SO ORDERED.

13
14 Dated: September 16, 2016

_______________________
Hon. André Birotte Jr.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

ER289

ORDER CONTINUING HEARING
16-CV-04109-AB (PLAX)