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

Filing 26

Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by John Hostettler and Spencer Bachus. Date of service: 01/18/2017. [10270131] [16-56843] (Delgado, William) [Entered: 01/18/2017 02:15 PM]

No. 16-56843

IN THE 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,
The Honorable André Birotte, Jr.
No 2:16-cv-04109-AB-PLA

Brief of Amici Curiae U.S. Representatives John Hostettler
and Spencer Bachus in Support of Defendant-Appellant and
in Support of Dissolution of the Preliminary Injunction
Susanna Frederick Fischer
COLUMBUS SCHOOL OF LAW
THE CATHOLIC UNIVERSITY
OF AMERICA
3600 John McCormack Road NE
Washington DC 20064
Telephone: [phone]
Facsimile: [phone]
Jan. 18, 2017

William A. Delgado
WILLENKEN WILSON LOH
& DELGADO LLP
707 Wilshire Blvd.
Suite 3850
Los Angeles CA 90017
Telephone: [phone]
Facsimile: [phone]

Counsel for Amicus Curiae

TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................ iii
STATEMENT OF COMPLIANCE………………………………………………1
INTEREST OF THE AMICI……………………………………………………..1
SUMMARY OF THE ARGUMENT………………………………......................4
ARGUMENT ............................................................................................................ 7
I. The Court Erred in Finding That the Public Interest Weighs in
Support of a Preliminary Injunction .............................................................. 7
A. VidAngel’s Filtering Service Benefits an Important Public
Interest in Protecting Families ................................................................ 7
B. To Protect Families and In Response to the Studios’ Opposition
to All Filtering Services, Congress Strongly Endorsed the Public
Interest in the Development and Making Available of Filtering
Technologies Like VidAngel’s ...............................................................10
i.

Congress Enacted the FMA to Protect Families……………….11

ii.

To Effectively Protect Families, Congress Extended the
FMA’s Exemption to Filtering Services Like VidAngel’s.…….11

iii.

Congress Determined that the FMA’s Exemption from
Copyright Infringement Extends Only to Filtering Services
That, Like VidAngel’s Meet Certain Conditions………………12

iv.

Congress Crafted the FMA’s Exemption to Apply to New
Filtering Technologies Such as VidAngel’s, Not Only to
Technologies Available in 2005 or Studio-Approved
Technologies……………………………………………………...15

C. The Preliminary Injunction Against VidAngel Disserves the Public
Interest in Protecting Families’ Access to Filtering Services………...18
D. The Public Interest in Copyright Law Is Also Not Served by the
Preliminary Injunction………………………………………………....19
CONCLUSION...............................................................................................……20
CERTIFICATE OF COMPLIANCE…………………………………………...21

ii

TABLE OF AUTHORITIES
FEDERAL CASES

Page(s)

Munaf v. Geren, 553 U.S. 674, 128 S. Ct. 2207, 171 L. Ed. 2d 1 (2008)……..4
Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S. Ct. 1798, 72 L. Ed. 2d 91
(1982)…………………….…………………………………………………….7
FEDERAL STATUTES
17 U.S.C. § 110(11)…………………………………………………. 1, passim
LEGISLATIVE MATERIALS
150 Cong. Rec. S11853 (Nov. 24, 2004)…....………..……….……..13, 14, 17
151 Cong. Rec. H2118 (Apr. 19, 2005)……………………………………...11
151 Cong Rec. H2120 (Apr. 19, 2005)……………….……………………….2
151 Cong. Rec. 3893 (Apr. 19, 2005)…….………………………………….11
H.R. Rep. No. 108-670 (2004)…………………………………………..…2, 14
H.R. Rep. No. 109-33 (2005)…………………………………………2, passim
H.R. 4586, Serial No. 94 (June 17, 2004)……………………………………11

iii

STATEMENT OF COMPLIANCE WITH RULE 29(a)(4)(E)
No monetary contributions were made for the preparation or submission of this
brief. Counsel for a party did not author this brief, in whole or in part.
CONSENT OF THE PARTIES
Counsel for the parties have consented to the filing of this brief.
INTEREST OF THE AMICI
Amici are former members of the United States House of Representatives (“the
House”). Both Amici served as congressmen during the 108th and 109th Congresses,
when the Family Movie Act bills of 2004 and 2005 were under consideration and the
Family Movie Act of 2005, 17 U.S.C. § 110(11) (“FMA”), was enacted. Former
United States Representative John Hostettler served in the House from 1995 to 2007,
representing the 8th District of Indiana. Former United States Representative
Spencer Bachus served in the House from 1993 to 2015, representing the 6th District
of Alabama.
This appeal raises important questions of first impression as to the proper
interpretation and scope of the FMA. As former members of the House who
participated in the deliberations on the FMA not only in the full House but also as
members of various House committees and subcommittees charged with considering
and reporting on draft FMA legislation, Amici have a shared interest in the sound and
principled interpretation and application of the FMA. Amici also have unique and

1

significant knowledge as to the congressional intent and public policy concerns
underlying this federal statute.
Amici were both involved in the legislative process of the FMA, including the
committee stage, in 2005, the year of the FMA’s enactment. The Senate version of
the FMA bill was referred to the House Committee on the Judiciary, on which both
Amici served as members. H.R. Rep. 109-33 at 1 (2005). The bill was referred to the
House Subcommittee on Courts, the Internet, and Intellectual Property, on which
Amicus Representative Bachus served. This Subcommittee also considered the House
version of the FMA bill, H.R. 357. On March 3, 2005, the Subcommittee ordered the
Senate bill to be favorably reported, by a voice vote. Id. at 19. On March 9, 2005,
the House Committee on the Judiciary recommended enactment, also by voice vote.
Id. at 1, 19. The House passed this bill by voice vote on April 19, 2005. 151 Cong.
Rec. H2120 (April 19, 2005).
Both Amici were also involved, as members of the House, the House
Committee on the Judiciary, and, in the case of Representative Bachus, the House
Subcommittee on Courts, the Internet, and Intellectual Property, in deliberations over
a previous FMA bill introduced in the 108th Congress in 2004, H.R. 4586. This bill
was referred to the Subcommittee on Courts, the Internet, and Intellectual Property.
H.R. Rep. 108-670 at 4 (2004). On July 8, 2004, the Subcommittee ordered the bill

2

favorably reported, as amended. Id. The House Committee on the Judiciary voted to
favorably report the bill on July 21, 2004. Id.
Amicis’ sole interest in this case is in the sound and principled interpretation
and application of the FMA. Amici believe that this brief will assist the Court in its
consideration of the proper interpretation and application of the federal copyright
law, especially the FMA, in this appeal.

3

SUMMARY OF THE ARGUMENT
Amici file this brief because there is much more at stake in this litigation than
the continued operation of one company. The underlying issue here is whether
families should have the technological means to effectively control the movie content
shown within their own private homes. As the text and legislative history of the
FMA make clear, Congress strongly endorsed the public interest in developing and
making available technology like VidAngel’s filtering service that enables American
families to view movie content filtered according to their own personal preferences
in their own homes. 17 U.S.C. § 110(11).
The district court’s cramped and hyper-technical reading of copyright law fails
to take proper account of the public interest in protecting families that is at issue in
this case. Congress enacted the FMA to prevent the use of copyright law to impede a
parent’s important right to control what movie content is shown in the family home.
By failing to properly weigh the public interest, the court misapplied the
“extraordinary and drastic remedy” of a preliminary injunction. Munaf v. Geren, 553
U.S. 674, 689, 128 S. Ct. 2207, 2219, 171 L. Ed. 2d 1 (2008) (citations omitted).
The court wrongly failed to take into account the profound public interest in giving
families the ability to control the content shown in their private homes using
technology of their choosing, not just technology pre-approved by studios.
Congress found it necessary to enact the FMA’s exemption to copyright

4

infringement for filtering services because of the major movie studios’ intransigent
and unreasonable opposition to all businesses offering filtering services to families.
Congress acted out of concern that American consumers lacked effective
technological tools to protect their families from movie content that they judge
inappropriate for family viewing.
In crafting the FMA, Congress clearly recognized that its exemption to
copyright infringement should protect not just families who wanted to filter movies
shown at home but also technology companies that, like VidAngel, develop and
make available filtering technology. Congress sought to protect all types of filtering
technology, not just those used at the time of enactment of the exemption, and not
just those approved by studios.
The court’s ruling erroneously limits the FMA’s exemption to yesterday’s
filtering technology and frustrates the law’s goal of effectively protecting a family’s
choice to filter movies viewed at home. The court erred in finding the public interest
was satisfied because ClearPlay offers a filtering service applicable to some streamed
content on GooglePlay. It is not reasonable to limit families to only one type of
filtering technology for streamed movies, the most popular type of content delivery
to homes today. Nor is it reasonable to limit families to ClearPlay technology that
cannot be used to filter content streamed on most devices and content platforms.
The only limit on the FMA’s exemption to copyright liability for filtering

5

technology is the set of specific conditions designed to protect moviemakers’ First
Amendment rights. On the plain wording of the FMA and Amicis’ understanding of
the legislative history, VidAngel’s filtering service fully complies with these
conditions.
The plain wording of the FMA exempts systems that comply with its
conditions from copyright infringement. This necessarily includes an exemption for
liability under the Digital Millennium Copyright Act, which is part of copyright law.
Moreover, it makes no sense to interpret the DMCA so broadly as to effectively
destroy the exemption in the FMA for all but outdated or ineffective filtering
technology. The court’s interpretation of the DMCA is not tenable because it is
completely at odds with the public interest that was the primary reason for the FMA,
giving families the ability to effectively filter movies shown in their homes.
The court erred in concluding that shutting down VidAngel’s filtering service
was in the public interest. The injunction should therefore be dissolved.

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ARGUMENT
I.

THE COURT ERRED IN FINDING THAT THE PUBLIC INTEREST

WEIGHS IN SUPPORT OF A PRELIMINARY INJUNCTION
The court erred in finding that the public interest weighs in favor of the
Plaintiff Studios (“Studios”). The Supreme Court has cautioned that the “courts of
equity should pay particular regard for the public consequences in employing the
extraordinary remedy of injunction.” Weinberger v. Romero-Barcelo, 456 U.S. 305,
312, 102 S. Ct 1798, 1803, 72 L. Ed.2d 91 (1982). The court’s skimpy analysis of
the public interest fails to give appropriate weight to the vital public interest at stake
in this case, protecting the ability of American families to control what movie content
is shown in their homes.
A. VidAngel’s Filtering Service Benefits an Important Public
Interest in Protecting Families
VidAngel’s filtering service responds to a pressing need to give American
consumers a viable filtering option for movies shown at home. Many of Amici’s
constituents as well as Amici themselves have grave concerns about the high
prevalence of violence, sexual activity, smoking, drug use, and offensive language in
films marketed to young people.
A recent study in Pediatrics magazine found that violence in films has more
than doubled since 1950 and the amount of gun violence in popular PG-13 movies
has more than tripled between 1985 and 2012. Brad J. Bushman, et al., Gun
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Violence Trends in Movies, 132 Pediatrics 1014, 1014-1017 (Dec. 2013) (the “Gun
Violence Study”). Another study, based on a sample of hundreds of top-grossing
movies from 1985 to 2010, found that around 90% of these popular films has at least
one violent main character. Amy Bleakley et al., Violent Film Characters’ Portrayal
of Alcohol, Sex, and Tobacco Related Behaviors, 133 Pediatrics 71, 74 (Jan. 2014)
(the “Violent Film Characters Study”). The same violent character engages in at
least one other risky behavior, typically alcohol use and sexual activity, in
approximately 77% of those movies. Id. Sexual content occurs in about 82% of these
movies. Id. Many Americans are concerned about the impact of movie content on
their families and do not want to expose their children to it at home.
The movie rating system administered by the Motion Picture Association of
America (“MPAA”) fails to give consumers the tools they need to effectively control
what movie content is viewed by their families at home. The MPAA rating system
suffers from tremendous inconsistency. The Violent Film Characters Study found
that there was no statistical difference between PG-rated or R-rated movies as to
violence or explicit violence. Id. at 74. That study’s authors note that “the similarity
in levels of co-occurrence between PG-13 and R-rated movies is troubling and yet it
is consistent with research on the questionable effectiveness of the ratings system as
a tool to shield youth from inappropriate content.” Id. at 75. The Gun Violence
Study shows that the amount of gun violence in popular PG-13 movies has recently

8

outstripped gun violence in popular R-rated movies. Bushman, Gun Violence, supra,
at 1017.
Another problem with the MPAA ratings system, pointed out by researchers at
Harvard’s School of Public Health is “ratings creep” over time. Kimberley M.
Thompson et al., Violence, Sex and Profanity in Films: Correlation of Movie Ratings
with Content, 6(3) Medscape General Medicine 3 (2004). The Harvard School of
Public Health study concluded that “[a]ge-based ratings alone do not provide good
information about the depiction of violence, sex, profanity and other content, and the
criteria for rating movies became less stringent over the last decade.” Id. Because Rrated films generate less revenue, “it is not surprising that today many motion picture
companies push the envelope at the PG-13 rating.” Bleakley, Violent Film
Characters, supra, at p. 76 (citation omitted). Parents who wish to shield their
children from certain types of content, such as sexual activity, violence, drug use, or
offensive language, cannot rely on the MPAA ratings as an effective tool.
Even if the MPAA’s movie ratings did not suffer from inconsistency and
ratings creep, a better movie rating system would still be a much blunter and less
effective method to protect families than filtering services like VidAngel’s. Movie
ratings give only two practicable choices to families concerned about the
appropriateness of movie content: to watch or not to watch an entire movie. In
contrast, filtering technologies like VidAngel’s offer consumers the practical ability

9

to tailor the content they view at home to their own specific preferences.
VidAngel’s filtering service is highly sophisticated and offers numerous
filtering categories individually tailored to each specific movie sold. These include
specific instances of crude, profane, blasphemous, or discriminatory language;
specific instances of different types of sexual activity, including sex, nudity, or
kissing; specific instances of alcohol or drug use; and specific instances of violent
content, including blood, gore, or disturbing images. Consumers who use
VidAngel’s service can identify and screen out only the movie content that they find
objectionable for their families. This allows their families to experience and enjoy
the rest of the movie. Filtering services like VidAngel’s ultimately benefit studios by
making their films available to a wider audience, leading to more film sales.
B. To Protect Families and In Response to the Studios’
Opposition to All Filtering Services, Congress Strongly
Endorsed the Public Interest in the Development and Making
Available of Filtering Technologies Like VidAngel’s
Congress enacted the FMA to promote the public interest in the distribution of
technologies like VidAngel’s that allow families to filter content as they see fit for
their own home viewing. Congress was reacting to studio opposition to all filtering
services, including lawsuits against all filtering companies. The fact that the FMA
was, unusually for federal legislation, enacted without a roll call vote, indicates
overwhelming congressional support that, in the words of FMA sponsor
Representative Lamar Smith, “[i]t is time for the rights of parents not to be tied up in
10

the courts any longer.” 151 Cong. Rec. H2118 (2005).
i.

Congress Enacted the FMA to Protect
Families

The legislative history of the FMA consistently shows that Congress wanted to
ensure that intellectual property law could not be used by studios to impede the right
or ability of consumers to shield their families from home viewing of movie content
that they considered inappropriate. The House Judiciary Committee Report states
that “[t]he Committee strongly believes that, subject to certain conditions, copyright
and trademark law should not be used to limit a parent’s right to control what their
children watch in the privacy of their own home.” H.R. Rep. 109-33, at 5 (2005).
When the House passed the FMA, Senator Leahy stated that this legislation “ensures
that in-home viewing of movies can be done as families see fit.” 151 Cong. Rec.
3893 (Apr. 19, 2005).
ii.

To Effectively Protect Families, Congress
Extended the FMA’s Exemption to
Filtering Services Like VidAngel’s

Congress recognized that the goal of protecting families’ ability to filter
unwanted content could not be achieved without exempting providers of filtering
technology from copyright liability. Representative Smith, a sponsor of the FMA in
both 2004 and 2005, stated that “as a practical matter, parents cannot monitor their
children’s viewing habits all the time. They need an assist.” H.R. 4586, Serial No.
94 (June 17, 2004). The House Judiciary Committee Report states “[t]he for-profit
11

nature of the entities providing services to the public that the legislation addresses
has no bearing on the operation of the immunity from liability.” H.R. Rep. No. 10933 at 6 (2005).
iii.

Congress Determined that the FMA’s
Exemption From Copyright Infringement
Extends Only to Filtering Services That,
Like VidAngel’s, Meet Certain Conditions

The FMA’s text shows that Congress decided that only filtering services that
complied with certain conditions were entitled to the protection of the FMA’s
exemption from copyright infringement. First, the service must only engage in
filtering that is “by or at the direction of a member of a private household.” 17
U.S.C. § 110(11). Second, the filtering must be “during a performance in or
transmitted to that household for private home viewing.” Id. Third, the filtering
service must not create a “fixed copy of the altered [filtered] version.” Id. Fourth, the
filtering must be “from an authorized copy.” Id.
Congress included these conditions as the result of its careful balancing of the
public interest. Congress drafted the FMA “[t]o respect the First Amendment of the
Constitution” by ensuring movies were not subject to government censorship. H.R.
Rep. 109-33 at 6 (2005). The FMA was carefully limited only to exempt
individualized filtering at the request of private households of movies shown in
private homes.
On Amici’s reading of the text of the FMA and understanding of the legislative
12

history, VidAngel’s filtering service complies with all of the law’s requirements to
be exempted from copyright infringement.
VidAngel’s service meets the condition that it applies only to filtering that is
“by or at the direction of a member of a private household.” 17 U.S.C. § 110(11).
“[T]his limitation does not require that the individual member of the private
household exercise ultimate decision-making over each and every scene or element
of dialogue in the motion picture that is to be made imperceptible.” 150 Cong. Rec.
S11853 (Nov. 24, 2004). The requirement that the filtering be “by or at the direction
of a member of a private household” is met “where an individual selects preferences
from among options that are offered by the technology.” Id. VidAngel’s service has
over 80 categories of filtering preferences that its customers can select.
VidAngel’s service complies with the condition that it must filter out audio or
visual content only “during a performance . . transmitted to that household for
private home viewing.” 17 U.S.C. § 110(11). Customers using VidAngel’s service
must purchase their own DVDs from VidAngel, which has lawfully purchased these
DVDs. After purchase, VidAngel stores them, marked with individually assigned
barcodes, in locked vaults at VidAngel’s premises. A VidAngel customer can only
view her purchased film as a streamed performance after she chooses her
individually chosen content filters. VidAngel streams the resulting customized,
filtered version of the film only to the owner of the purchased DVD for viewing at

13

that owner’s private home. This stream is obviously a “performance . . transmitted
to that household for private home viewing” within the plain wording of the FMA.
VidAngel’s filtering service also meets the requirement that it never makes a
fixed copy of any filtered work. Where a filtering service, like VidAngel’s, results
only in an unfixed display of a movie with some content skipped or muted only for
home viewing by the customer who requested the filtering, Congress took the view
that the public interest in filtering should not be trumped by an assertion of directors’
copyrights and/or moral rights. The House Committee on the Judiciary Report on the
2004 bill states that “[u]nder existing law, moral (reputational) rights do not
supersede parental rights to raise children as they see fit.” H.R. Rep. 108-670, at 4
(2004).
VidAngel’s filtering service satisfies the FMA’s requirement that the filtering
be “from an authorized copy.” 17 U.S.C. § 110(11). VidAngel streams content only
to, and at the request of, a lawful owner of a DVD at the time of the request. The
legislative history makes clear that the “authorized copy” requirement was based on
the concern that the exemption should not apply to “bootleg” copies. 150 Cong. Rec.
S11853 (Nov. 24, 2004). The lawfully purchased copies filtered by VidAngel at the
request of their owners are obviously not bootlegs.
It is possible for the owner of a DVD purchased from VidAngel to sell the
DVD back to VidAngel after viewing the purchased film, but a customer must own

14

the DVD at the time of the filtered streaming for his or her home viewing.
iv.

Congress Crafted the FMA’s Exemption to
Apply to New Filtering Technologies Such
as VidAngel’s, Not Only to Technologies
Available in 2005 or Studio-Approved
Techologies

Technological filtering tools can be effective for today’s consumers only if
they can be applied to the way movies are shown at home today, rather than to how
movies were shown when the FMA was enacted in 2005. Viewing habits have
greatly changed since 2005, when most families watching movies at home used DVD
players that played physical DVDs. Today, a growing proportion of American
consumers prefer to watch movies at home by streaming them over the Internet. The
public interest in enabling families to choose the content shown in their homes
applies just as much to in-home performances that are streamed over the Internet as
to in-home performances using DVD players. The Studios concede the legality of
filtering services that require consumers to purchase special filtering DVD players.
But it is not reasonable for the law to require Americans to purchase yesterday’s
technology, the DVD player, to be able to control what content is shown to their
families.
Congress provided that the home performances protected by the FMA did not
just include movies shown at home using DVD players. The plain language of the
FMA exempts from copyright liability performances of “authorized cop[ies]” that are

15

“in or transmitted to” private homes. (17 U.S.C. § 110(11)). This language
unambiguously covers streaming as long as the copy is an authorized copy. In the
case of VidAngel, the streamed copy is authorized because the consumer is the
lawful owner of a DVD of the film he is viewing. Moreover, VidAngel decrypts
only authorized copies, DVDs that VidAngel has lawfully purchased, to create the
intermediate files from which the short segments are created and streamed to the
consumer with filtering conforming to her individual requests.
The legislative history indicates that the FMA is broad enough to exempt
technologies used to filter streamed content from copyright infringement. The Senate
section-by-section analysis of the FMA states, “the creation or provision of a
computer program or other technology that enables such making imperceptible, does
not violate existing copyright or trademark laws. That is true whether the movie is
on prerecorded media, like a DVD, or is transmitted to the home, as through pay-perview and video-on-demand services.” 150 Cong. Rec. S11853 (Nov. 24, 2004).
Congress wanted to protect not just existing filtering technology in 2005, but also
future filtering technology applicable to new viewing technology that might be
developed. The House Judiciary Committee Report states “The [FMA] clarifies the
liability, if any, for companies . . . that may be interested in providing [filtering]
services in the future.” H.R. Rep. No. 109-33 at 5 (2005).
The intention of Congress to extend the exemption to streamed content rather

16

than just content played on DVD player counters the court’s erroneous finding that
VidAngel’s filtering service violates the Digital Millennium Copyright Act (DMCA).
The FMA expressly provides that filtering services meeting its specified conditions
do not infringe copyright. Since the DMCA is copyright law, codified as part of the
federal copyright statute, filtering services that comply with the FMA’s conditions
cannot amount to violations of the DMCA.
In 2005, Congress clearly contemplated that a decryption/filtering/streaming
method, like VidAngel’s, could be developed in the future and would be lawful
under the FMA and the DMCA. Transmission over the Internet necessarily requires
the making of intermediate copies. If these intermediate copies were held to violate
the DMCA, it would never be possible to filter streamed content without studio
authorization. This interpretation would frustrate the purpose of the FMA, to ensure
that the studios could not thwart family filtering of movies viewed at home. As the
legislative history states, “[a]ny suggestion that support for the exercise of viewer
choice in modifying their viewing experience of copyrighted works requires violation
of either the copyright in the work or of the copy protection scheme that provides
protection for such work should be rejected as counter to legislative intent or
technological necessity.” 150 Cong. Rec. S11853 (Nov. 24, 2004).

17

C. The Preliminary Injunction Against VidAngel Disserves the
Public Interest in Protecting Consumers’ Access to Filtering
Services
The preliminary injunction shutting down VidAngel’s service harms the public
interest in ensuring that consumers have access to filtering technology. Consumers
are no longer able to use VidAngel’s filtering service to filter streamed movies using
many of the most popular streaming players, including Roku, Kindle Fire, and Apple
TV, nor with many devices such as iPhones. Consumers who wish to filter movies
have severely limited options for the content they can filter without VidAngel’s
service. They either have to enter into the extra expenditure and inconvenience of
acquiring a special filtering DVD player and hard copies of DVDS, or they are
limited to ClearPlay, which only works on GooglePlay and not on many other
popular streaming players and devices. These limitations are at odds with growing
consumer preferences for streaming films using a wide variety of streaming players
and devices.
The preliminary injunction also harms the public interest in innovative
filtering technologies by likely chilling potential startups and their investors from
entering the filtering market.

18

D. The Public Interest in Copyright Law Is Also Not Served by
the Preliminary Injunction
The court asserts that the injunction advances the public interest because it is
in the public interest to uphold copyright protections. This errs by recasting the
Studios’ interests as the public’s, and, for several reasons, cannot be supported.
First, the Studios continue to produce, distribute, and broadcast their creative
works to the public unabated.
Second, the court neglects the fact that copyright law operates through a
balance between the interests of the author (being compensated for creating the
work) and the interests of the public (having the ability to access the work). The
public interest is not only in protecting as strenuously as possible the outer
boundaries of Studios’ copyrights, nor even protecting the legitimate interests of
VidAngel’s ability to do business, but in the public’s ability to access lawful licensed
content such as movies that consumers have lawfully purchased.
Third, the distinctiveness of the parties’ interests and the public interest is
highlighted by the fact that regarding the two as coterminous would effectively read
out the entire public interest prong of the injunction analysis. If the public interest
were represented by the interests of the parties, then the balance of hardships prong
would be subsumed and rendered unnecessary.

19

CONCLUSION
Amici respectfully request that this Court dissolve the injunction granted by
the district court.

January 18, 2017

Respectfully submitted,
s/ William A. Delgado
William A. Delgado
WILLENKEN WILSON LOH & DELGADO LLP
707 Wilshire Blvd., Suite 3850
Los Angeles, CA 90017
Telephone: [phone]
Facsimile: [phone]
Susanna Frederick Fischer
COLUMBUS SCHOOL OF LAW
THE CATHOLIC UNIVERSITY OF AMERICA
3600 John McCormack Road NE
Washington DC 20064
Telephone: [phone]
Facsimile: [phone]
Counsel for Amici Curiae

20

CERTIFICATE OF COMPLIANCE UNDER RULE 32(g)(1)
This brief complies with the type-volume limitation of Fed. R. App. P. Rules
29(a)(5) and 32(a)(7)(B) because it contains 4199 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief also complies with
the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style
requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a
proportionally spaced 14-point Times New Roman typeface using Microsoft
Office Word 2008 for Mac.
Dated: January 18, 2017

/s/ William A. Delgado
William A. Delgado

21

CERTIFICATE OF SERVICE
I hereby certify that on January 18, 2017, I electronically filed the
foregoing with the Clerk of the Court for the United States Court of Appeals for
the Ninth Circuit by using the CM/ECF system. Participants in the case who are
registered CM/ECF users will be served by the appellate CM/ECF system.
I further certify that some of the participants in the case are not registered
CM/ECF users. Upon acceptance by the Clerk of the Court of the electronically
filed documents, one copy of the foregoing will be served, via U.S. Mail,
postage prepaid on:
Brian T. Grace
BAKER MARQUART LLP
2029 Century Park East, 16th Floor
Los Angeles, CA 90067
Tel: [phone]
Fax: [phone]
Counsel for Defendant-Appellant
VidAngel, Inc.

Susanna Frederick Fischer
COLUMBUS SCHOOL OF LAW
THE CATHOLIC UNIVERSITY
OF AMERICA
3600 John McCormack Road NE
Washington DC 20064
Tel: [phone]
Fax: [phone]
Counsel for Amici Curiae

January 18, 2017

s/William A. Delgado
William A. Delgado
WILLENKEN WILSON LOH & DELGADO LLP
707 Wilshire Blvd., Suite 3850
Los Angeles, CA 90017
Telephone: [phone]
Facsimile: [phone]
Counsel for Amici Curiae