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

Filing 58

Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by The Copyright Alliance. Date of service: 02/15/2017. [10320805] [16-56843] (Bowen, Lindsay) [Entered: 02/15/2017 01:11 PM]

NO. 16-56843

United States Court of Appeals
for the Ninth Circuit
DISNEY ENTERPRISES, INC.; LUCASFILM LTD. LLC;
TWENTIETH CENTURY FOX FILM CORPORATION;
WARNER BROTHERS ENTERTAINMENT, INC.,
Plaintiffs-Counter-Defendants-Appellees,
– v. –
VIDANGEL, INC.,
Defendant-Counter-Claimant-Appellant.
_____________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CENTRAL CALIFORNIA, LOS ANGELES
CASE NO. 2:16-CV-04109-AB-PLA, ANDRE BIROTTE, DISTRICT JUDGE

BRIEF OF AMICUS CURIAE THE COPYRIGHT
ALLIANCE IN SUPPORT OF APPELLEES

KEITH KUPFERSCHMID
TERRY HART
THE COPYRIGHT ALLIANCE
1224 M Street, NW, Suite 101
Washington, DC 20005
[phone]

ELEANOR M. LACKMAN
LINDSAY W. BOWEN
COWAN DEBAETS ABRAHAMS
& SHEPPARD LLP
41 Madison Avenue, 38th Floor
New York, New York 10010
[phone]

Attorneys for Amicus Curiae The Copyright Alliance

CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure,
amicus curiae the Copyright Alliance states that it does not have a parent
corporation, and that no publicly held corporation owns 10% or more of
amicus’s stock.

C-1

TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT .....................................................C-1
TABLE OF CONTENTS............................................................................................i
TABLE OF AUTHORITIES ....................................................................................iii
INTEREST OF THE AMICI......................................................................................1
SUMMARY OF ARGUMENT.................................................................................3
ARGUMENT.............................................................................................................5
I.

THE DISTRICT COURT CORRECTLY SAW THROUGH
VIDANGEL’S ATTEMPT TO CREATE AN
UNWARRANTED LOOPHOLE IN COPYRIGHT LAW ............................5
A. VidAngel Violates Fundamental Exclusive Rights of
Copyright Owners .....................................................................................5
B. VidAngel Relies on Lawyer-Driven Methods That
Directly Conflict with the Letter and Spirit of the Law............................9

II.

JUDGE BIROTTE’S DECISION CORRECTLY
CONSTRUED THE FMA.............................................................................13
A. Broad Copyright Rights Are Fundamental to Creators’
Constitutional Bargain with the Public ...................................................13
B. The Plain Meaning Rule Shows that the FMA Should Be
Directly and Narrowly Applied...............................................................14
C. VidAngel’s Misinterpretation of the FMA Violates the
Canon of Narrow Construction of Statutory Exceptions ........................17
D. VidAngel’s Argument Violates the Rule Against
Surplusage ...............................................................................................20

i

E. The Legislative History of the FMA Makes Its Limited
Application Clear ....................................................................................21
F. The Historical Context of the FMA Makes Its Limited
Application Clear ....................................................................................23
III.

THIS COURT SHOULD NOT REWRITE THE DMCA TO
ACCOMMODATE VIDANGEL’S ILLEGAL BUSINESS
MODEL .........................................................................................................24

CONCLUSION........................................................................................................29
CERTIFICATE OF COMPLIANCE.......................................................................30

ii

TABLE OF AUTHORITIES
Page(s)
CASES
American Broad. Cos. v. Aereo, Inc.,
874 F. Supp. 2d 373 (S.D.N.Y. 2012) ................................................................12
American Broad. Cos. v. Aereo, Inc.,
134 S. Ct. 2498, 2511 (2014)..................................................................11, 16, 20
C.I.R. v. Clark,
489 U.S. 726 (1989)............................................................................................17
Capitol Records, LLC v. ReDigi Inc.,
934 F. Supp. 2d 640 (S.D.N.Y. 2013) ............................................................7, 11
Citicorp Indus. Credit, Inc. v. Brock,
483 U.S. 27 (1987)..............................................................................................17
Clean Flicks of Colo., LLC v. Soderbergh,
433 F. Supp. 2d 1236 (D. Colo. 2006) ................................................... 15-16, 22
Estate of Cowart v. Nicklos Drilling Co.,
505 U.S. 469 (1992)............................................................................................15
Design Options, Inc. v. BellePointe, Inc.,
940 F. Supp. 86 (S.D.N.Y. 1996) .........................................................................7
Fame Publ’g Co. v. Ala. Custom Tape, Inc.,
507 F.2d 667 (5th Cir. 1975) ........................................................................ 17-18
John Hancock Mut. Life Ins. Co. v. Harris Tr. & Sav. Bank,
510 U.S. 86 (1993)..............................................................................................17
Kungys v. United States,
485 U.S. 759 (1988)............................................................................................20
Lair v. Bullock,
798 F.3d 736 (9th Cir. 2015) ..............................................................................27
MAI Sys. Corp. v. Peak Comput., Inc.,
991 F.2d 511 (9th Cir. 1993) ................................................................................8
iii

Matthew Bender & Co. v. West Publ’g Co.,
158 F.3d 693 (2d Cir. 1998) ...............................................................................16
MDY Indus., LLC v. Blizzard Entm’t, Inc.,
629 F.3d 928 (9th Cir. 2010) ..............................................................................25
Peker v. Masters Collection,
96 F. Supp. 2d 216 (E.D.N.Y. 2000)....................................................................7
Ratzlaf v. United States,
510 U.S. 135 (1994)............................................................................................20
Ryan v. CARL Corp.,
23 F. Supp. 2d 1146 (N.D. Cal. 1998)................................................................18
Sega Enters. Ltd. v. Accolade, Inc.,
977 F.2d 1510 (9th Cir. 1992) ..............................................................................8
South Carolina v. Catawba Indian Tribe, Inc.,
476 U.S. 498 (1986)............................................................................................20
Tasini v. N.Y. Times Co.,
206 F.3d 161 (2d Cir. 2000) ...............................................................................17
TRW Inc. v. Andrews,
534 U.S. 19 (2001)..............................................................................................20
U.S. Dep’t of Justice v. Landano,
508 U.S. 165 (1993)............................................................................................17
UMG Recordings, Inc. v. MP3.Com, Inc.,
92 F. Supp. 2d 349 (S.D.N.Y. 2000) ..................................................................10
United States v. Providence Journal Co.,
485 U.S. 693 (1988)............................................................................................15
Walker v. Univ. Books,
602 F.2d 859 (9th Cir. 1979) ................................................................................8
Warner Bros. Entm’t Inc. v. WTV Sys., Inc.,
824 F. Supp. 2d 1003 (C.D. Cal. 2011)........................................................11, 16

iv

WNET, Thirteen v. Aereo, Inc.,
722 F.3d 500 (2d Cir. 2013) ...................................................................11, 16, 20
STATUTES
17 U.S.C. § 106......................................................................................................5, 6
17 U.S.C. § 109..........................................................................................................7
17 U.S.C. § 110......................................................................................13, 15, 16, 21
17 U.S.C. § 117........................................................................................................19
17 U.S.C. § 512(b) ............................................................................................. 19-20
OTHER AUTHORITIES
“VidAngel” Google Search Results Page, Google Search .....................................12
H.R. Rep. No. 94-1476 (1976) ............................................................................6, 13
H.R. Rep. No. 108-660 (2004) ................................................................................14
U.S. Copyright Office, DMCA Section 104 Report (August 2001) .........................8
150 Cong. Rec., S.11852-01 (Statement of Senator Hatch)....................................21
S. Rep. No. 106-42 (1999).......................................................................................13
U.S. Dep’t of Commerce Internet Policy Task Force, White Paper on
Remixes, First Sale, and Statutory Damages (Jan. 28, 2016) .......................... 7-8
Brad Rhees, Why Are Filters Required, VidAngel (Jan. 2017).........................21, 22

v

Pursuant to Federal Rule of Appellate Procedure 29(a), amicus curiae
the Copyright Alliance respectfully submits this brief in support of appellees
Disney Enterprises, Inc.; LucasFilm Ltd., LLC; Twentieth Century Fox Film
Corporation;

and

Warner

Bros.

Entertainment,

Inc.

(collectively,

“Appellees”). This brief is submitted with consent by the parties.1
INTEREST OF AMICUS CURIAE
The Copyright Alliance is a nonprofit, nonpartisan 501(c)(4)
membership organization dedicated to promoting and protecting the ability
of creative professionals to earn a living from their creativity. It represents
the interests of individual authors from a diverse range of creative industries
– including, for example, writers, musical composers and recording artists,
journalists, documentarians and filmmakers, graphic and visual artists,
photographers and software developers – and the small businesses that are
affected by the unauthorized use of their works. The Copyright Alliance’s
membership encompasses these individual creators and innovators, creative
union workers, and small businesses in the creative industry, as well as the
1

Pursuant to Federal Rule of Appellate Procedure 29(c)(5), no counsel for
any party authored this brief in whole or in part, and no party or counsel for
any party made a monetary contribution intended to fund the preparation or
submission of this brief. Only amicus curiae made such a monetary
contribution. Some Copyright Alliance members are, or are affiliates of,
Appellees in this matter. Additionally, some Copyright Alliance members
may join other amicus briefs in support of Appellees.

organizations and corporations that support and invest in them. Moreover,
members of amicus are among the even larger and even more diverse array
of citizens and companies that owe their livelihoods to the Copyright Act.
The appellant in this case attempts to make this appeal only about big
studios, and the suggestion that the appellant knows better than the studios
do about how their works should be commercialized. But this case is not
just about big film studios: it is about creators of all types, and those
affected by the reach of copyright law extend far beyond the names of the
parties involved in the present appeal.

Creators and contributors to

copyright-protected works come in all sizes and varieties, and this case has
implications for all of them.
The concept of innovation is of fundamental importance to the
Copyright Alliance.

The copyright laws spur the development and

distribution of new creative works and innovations for the benefit of public
consumption by ensuring that those who contribute to these works and
innovations are entitled to determine how their efforts will be used and
modified.

Accordingly, the Copyright Alliance encourages partnerships

between creators and technology companies to develop and take advantage
of new technologies that create new audiences in new and legal ways,

2

regardless of whether those new ways might “disrupt” traditional business
models.
However, regardless of the ways in which new technologies and
businesses models evolve, a stated aspiration to create “family friendly”
copies of copyrighted works does not merit judicial legislation to permit a
new, and heretofore illegal, enterprise. Nor is one necessary to accomplish
certain activities envisaged and permitted by existing legislation.

The

Copyright Alliance submits this brief to help the Court understand the broadreaching legal and practical consequences that reversal would have on
creators and owners of copyrighted works – not just motion pictures, but any
sort of work. The Copyright Alliance also submits this brief to help the
Court understand the policy reasons that support the propriety of Judge
Birotte’s reading of the Family Movie Act (“FMA”), and to underscore that
this Court should reject any attempts to use this case to legislate new
exceptions to technological protections for copyrighted works.
SUMMARY OF THE ARGUMENT
Defendant-appellant VidAngel, Inc. (“VidAngel”) advocates for what
it calls “common sense,” but there is nothing sensible about disregarding the
law or legal precedent.

And creating broad exceptions to broad rights

conferred by Congress and the Constitution does not appeal to our better
3

angels. Indeed, courts have repeatedly, and correctly, rejected prior efforts
to find lawyer-created loopholes in these broad rights. No basis exists for
VidAngel to meet a different outcome.
VidAngel reproduces copyrighted works and publicly performs them,
purportedly in the interest of allowing children with diligent parents to see
movies that contain “filter-worthy” content.

Assuming this is in fact

VidAngel’s objective, it can be met – and indeed, is being met – using
methods other than one that relies on violations of several exclusive rights
granted to copyright owners under Section 106 of the Copyright Act.
This self-described “tiny start-up” – in reality, a for-profit company
that “spends millions of dollars” making thousands of copies of the entire
content of thousands of copyrighted works, which VidAngel retransmits to
the public – threatens to have an expansive impact on copyright law. The
arguments it makes would unleash broad consequences for creators and
copyright owners of all stripes. It would turn a narrow exception into an
open door for commercial actors to exploit others’ hard work and financial
investments, without seeking permission or contributing to the creative
effort. Moreover, a dozen years ago Congress carefully considered the same
policy arguments that VidAngel purports to rely upon, and the FMA was

4

written accordingly. It is for Congress, not the courts, to consider arguments
that the FMA should be re-written.
Nor is this the place to legislate new exceptions to the law against
circumvention of technological protection measures for creative works.
Technological protection measures defend all sorts of copyrighted works,
and VidAngel’s position would create an exception that runs directly counter
to the core reasons for the enactment of Section 1201 of the Digital
Millennium Copyright Act in the first place; it would also incentivize others
to engage in hacking of all sorts of technological protection measures that
are designed to prevent piracy of creative works. The district court’s ruling
was sound, legally and practically, and should be affirmed.
ARGUMENT
I.

THE DISTRICT COURT CORRECTLY SAW THROUGH
VIDANGEL’S ATTEMPT TO CREATE AN UNWARRANTED
LOOPHOLE IN COPYRIGHT LAW
A.

VidAngel Violates Fundamental Exclusive Rights of
Copyright Owners.

VidAngel claims to be under attack for providing filtered versions of
movies. That is false. The complaint in this case shows that the plaintiffs
sued VidAngel not for filtering movies, but for running an unlicensed videoon-demand service that makes unauthorized reproductions and public
performances in violation of 17 U.S.C. §§ 106(1) & (4). See Compl. ¶56
5

(VidAngel infringes plaintiffs’ exclusive rights to copy and make public
performances of copyrighted works, in violation of 17 U.S.C. § 106(1) &
(4)). Hiding behind the argument that its commercial business creates a
benefit to which copyright owners’ interests should be subordinate,
VidAngel at its core copies and publicly performs copyright owners’ works,
without the permission of or payment to the owners. This is indefensible.
A proper application of the law holds that copying is copying unless
there is an exception. Congress deliberately constructed the Copyright Act
to work in such a way: the “approach of the bill is to set forth the copyright
owner’s exclusive rights in broad terms in section 106[.]” H.R. Rep. No. 941476, at 61 (1976). The breadth of the Act is important, because it is how
creators and copyright owners realize a return on their investments of
artistry, time, and money. When an exception is created, it is done carefully
and with all stakeholder interests taken into account.
The thrust of VidAngel’s argument appears to be that because it has
purchased a copy of a work, it can do whatever it wants with that work. Yet
despite that VidAngel’s argument, just under its surface, is a mutant form of
the first sale doctrine in Section 109 of the Copyright Act, VidAngel itself
does not cite the doctrine. This is a tacit admission that despite its forced
analogies to the disposition of physical copies, VidAngel is engaged in much
6

more than that. Its “distribution” is defensible only where it makes no
copies and does not perform: the text of the first sale defense confirms as
much. 17 U.S.C. § 109(a) (noting applicability only to the distribution right
(Section 106(3)). There is nothing about the possession of an authorized
copy that allows a party to make copies or engage in public performances
(the rights that the district court found VidAngel likely violated) as part of
the sale or disposal of a copy of a work.
Others who have attempted to make similar “I bought it, so I can do
whatever I want with my copy” arguments have found no blessing from the
courts:

making copies is a separate infringing activity that must be

authorized by the copyright owner under Section 106. See Capitol Records,
LLC v. ReDigi Inc., 934 F. Supp. 2d 640, 646, 655-56 (S.D.N.Y. 2013)
(copying music file from user’s computer to cloud locker for purposes of
selling song “necessarily involves copying”); see also Peker v. Masters
Collection, 96 F. Supp. 2d 216, 221 (E.D.N.Y. 2000) (“It is no defense that
[defendant] used a lawfully acquired object to achieve its unlawful goal of
copying.”); Design Options, Inc. v. BellePointe, Inc., 940 F. Supp. 86, 91
(S.D.N.Y. 1996) (right to resell sweaters bearing designs did not give right
to sell sweaters with new versions of designs). Administrative agencies
have held similarly. See U.S. Dep’t of Commerce Internet Policy Task
7

Force, White Paper on Remixes, First Sale, and Statutory Damages, at 35
(Jan.

28,

2016),

available

at

https://www.ntia.doc.gov/

files/ntia/publications/white_paper_remixes-first_sale-statutory_damages_
jan_2016.pdf (copying for purposes of distributing new versions of works is
infringement); U.S. Copyright Office, DMCA Section 104 Report, at 79-80,
97-98

(August

2001),

available

at

https://www.copyright.gov/

reports/studies/dmca/sec-104-report-vol-1.pdf (finding no defense in the
creation of digital copies for purposes of “re-selling” previously purchased
digital files).
VidAngel’s references to “intermediate” copying does not make those
copies any less infringing. Making copies for some other purpose – unless a
specific exception or defense applies – is copying nonetheless. See Sega
Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1519 (9th Cir. 1992)
(following Walker v. Univ. Books, 602 F.2d 859, 864 (9th Cir. 1979) (“[T]he
fact that an allegedly infringing copy of a protected work may itself be only
an inchoate representation of some final product to be marketed
commercially does not in itself negate the possibility of infringement.”); see
also MAI Sys. Corp. v. Peak Comput., Inc., 991 F.2d 511, 518 (9th Cir.
1993) (loading copy into RAM may result in the creation of unauthorized
copies). This form of copying falls plainly within the statute as well as
8

within this Court’s precedent and, contrary to VidAngel’s arguments,
following the law makes sense.2
B.

VidAngel Relies on Lawyer-Driven Methods That Directly
Conflict with the Letter and Spirit of the Law.

When looking at the way VidAngel functions, it is clear that the cry of
“filtering” is a red herring that seeks to distract the Court from the fact that
VidAngel is violating the plaintiffs’ reproduction and public performance
rights, and lacks any viable defense. And VidAngel ignores or downplays
features of its system that have nothing to do with omitting aspects of
movies that some may prefer not to see.

Most egregiously, VidAngel

markets itself as a way to remove the end credits of films – the heart of how
the many artists and professionals who work on them are acknowledged.
VidAngel Br. at 12. While VidAngel unconvincingly maintains that its
“credits” filter is offered because some films show potentially offensive
“blooper reels” during credits, this is merely a pretext, when it has every
ability to remove those portions where they appear, leaving the credits in
place. See id.
2

VidAngel spends a lot of ink on the history of the VCR and other products.
The Court should not be distracted by those arguments. These products are
not only outside of the facts of this case, but VidAngel’s service bears no
factual or legal similarity to the exceptions that have been judicially found to
fall outside the bounds of copyright liability. Likewise, laws exist that cover
what Redbox does; but these laws do not apply to VidAngel, and VidAngel
does not put forth an explanation that they do.
9

Moreover, VidAngel’s system is overly complex. There truly is no
reason – other than trying to take advantage of some perceived loopholes in
copyright law – for VidAngel’s convoluted “buy-sellback” system. Indeed,
the situation here is essentially analogous to those in a long line of cases
where courts have rejected lawyer-driven methods for avoiding copyright
law. Seventeen years ago, Judge Rakoff rejected an argument that a service
that bought tens of thousands of popular CDs and uploaded them for access
by subscribers who could prove they owned the work, was legal, despite the
defendant’s argument that the service was the “functional equivalent” of a
cloud locker that allowed space-shifting.

UMG Recordings, Inc. v.

MP3.Com, Inc., 92 F. Supp. 2d 349, 350-51 (S.D.N.Y. 2000). Dismissing
“consumer demand” arguments that are echoed in VidAngel’s brief, the
court explained:
Stripped to its essence, defendant’s “consumer protection”
argument amounts to nothing more than a bald claim that
defendant should be able to misappropriate plaintiffs’ property
simply because there is a consumer demand for it. This hardly
appeals to the conscience of equity.
Id. at 352.

Courts have continued to see past lawyer-driven business

structures that are dressed up as something else but in fact are designed to
seek a way around copyright law. In ReDigi, the court rejected an attempt to
argue that a system for selling “used” digital music files merely “migrates”
10

the file from one user to another, when it was clear that a copy was made in
the process. 934 F. Supp. 2d at 650. Two years earlier, a court shut down
an enterprise that involved the purchase of hundreds of DVD players and
hundreds of copies of copyrighted works for customers to “rent” for 14 days.
Warner Bros. Entm’t Inc. v. WTV Sys., Inc., 824 F. Supp. 2d 1003, 1011
(C.D. Cal. 2011).
In American Broadcasting Companies, Inc. v. Aereo, Inc., the
Supreme Court saw Aereo’s complicated system of dime-sized antennas for
what it was: an attempt to create an end-run around the public performance
right.

134 S. Ct. 2498, 2511 (2014).

With its ruling, the Court also

eliminated the confusing “guideposts” that the Second Circuit was
constrained to create in order to avoid widespread consequences of its nowreversed decision that Aereo – itself a “Rube Goldberg-like contrivance” –
was not violating the law. WNET, Thirteen v. Aereo, Inc., 722 F.3d 500, 513
(2d Cir. 2013) (en banc) (Chin, J., dissenting) (rejecting concept that rulings
“provide ‘guideposts’ on how to avoid compliance with our copyright
laws.”).
These courts have all rejected the pretext that has been put forth,
finding that MP3.com was not just “music in a different place” or that Aereo
was just “television on your phone.” The courts looked at what the party
11

actually did. Similarly, like in the cases cited above, the law should not
favor methods that are designed to take advantage of perceived loopholes in
the law. This is not the type of innovation that the framers of Article I,
Section 8, Clause 8 had in mind. Nor does a system that floods the market
with nearly identical competing works add anything to the progress of
science or the useful arts. Compare Am. Broad. Cos. v. Aereo, Inc., 874 F.
Supp. 2d 373, 404 (S.D.N.Y. 2012), aff’d sub nom. WNET, 712 F3d. 676 (2d
Cir. 2013), rev’d and remanded sub nom. Aereo, 134 S. Ct. 2498 (2014)
(noting the “numerous other methods through which the public can lawfully
receive access to [p]laintiffs’ content” – and rejecting the argument that the
public has the right to receive programming through Aereo’s particular
service), with VidAngel statement, “watch movies however the BLEEP you
want” “VidAngel” Google Search Results Page, Google Search,
https://www.google.com/search?q=vidangel+bleep&biw=
1440&bih=794&source=lnms&sa=X&ved=0ahUKEwiktoL74o_SAhVhyo
MKHbcSC1sQ_AUIBSgA&dpr=1 (last accessed Feb. 15, 2017).

12

II.

JUDGE BIROTTE’S DECISION CORRECTLY CONSTRUED
THE FMA
In its opening brief, VidAngel asserts that the FMA, 17 U.S.C. §

110(11), “immunizes it from any liability.”

See VidAngel Br. at 17.

However, the plain meaning of the Copyright Act, as supported by the
universally-accepted canons of statutory construction and legislative intent
leads to one conclusion: VidAngel’s expansive reading of Section 110(11)
is wrong. See id.
A. Broad Copyright Rights Are Fundamental to Creators’
Constitutional Bargain with the Public.
The exclusive rights created by Section 106 of the Copyright Act are
intentionally broad, because they are fundamental to the Constitutional
bargain between creators and the public. See H.R. Rep. No. 94-1476, at 61
(1976) (the “approach of the [Act] is to set forth the copyright owner’s
exclusive rights in broad terms in section 106[.]”)
The FMA, in contrast, is a very limited provision specifying that
certain specific acts do not constitute violations of the Copyright Act.
Congress was careful to draft the language of the FMA to be very technical,
specialized, focused and precise, like any limitations on the rights of
copyright creators and owners. See, e.g., S. Rep. No. 106-42, at 10 (1999)

13

(compulsory licenses are narrowly drawn by Congress); H.R. Rep. No. 108660, at 8-9 (2004) (same).
In keeping with this approach, Congress has debated, drafted, and
ultimately passed the FMA and other exceptions to copyright with the
assumption that courts would follow the traditional tenets of statutory
interpretation and construe their terms strictly, giving every word its
intended meaning. It is thus of fundamental importance to all creators and
members of the creative community, including amicus’s members, that this
Court carefully apply the tools of statutory construction so as not to extend
any exceptions to copyright liability beyond the scope contemplated by
Congress.
In contrast to this balanced and traditional view of copyright, in the
present appeal, VidAngel invites the court to radically extend the FMA by
violating, inter alia, the plain meaning rule, the presumption of narrow
interpretation of statutory exemptions whenever (unlike here) any ambiguity
exists, and the rule against surplusage.
B. The Plain Meaning Rule Shows that the FMA Should Be
Directly and Narrowly Applied.
Any inquiry into the proper interpretation of a statute must begin with
its text. As a matter of course, courts follow the plain meaning of statutory
text, unless such a reading suggests an absurd result or a scrivener’s error.
14

See e.g., Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 474-75
(1992); United States v. Providence Journal Co., 485 U.S. 693, 700-01
(1988).
The rule is easily followed in this appeal because the plain text of the
FMA is unambiguous. By its own terms, the FMA is drafted as a narrow
and very specific exception to the rights of copyright holders. The 191
words of the relevant text of the statute only exempt two discrete actions
from liability: (1) the “making imperceptible” of portions of content, and (2)
the “creation or provision” of technology to enable the same. 17 U.S.C.
§ 110(11) et seq. Every other clause in the FMA is a carefully-crafted
limitation on those two exemptions: e.g., on who can direct the “making
imperceptible” (a member of a private household), how much can be made
imperceptible (limited portions), on when the exception applies (during
performances or transmissions), and on where performances during which
the making imperceptible takes place under the FMA must occur (in or to
one household for private viewing). Id.
Nowhere in the text of the FMA is there an exemption for copying
protected materials. Indeed, the FMA prominently and explicitly requires
that a performance or transmittal be from an “authorized copy of the motion
picture” and that enabling technology not create a “fixed copy.” See Clean
15

Flicks of Colo., LLC v. Soderbergh, 433 F. Supp. 2d 1236, 1240 (D. Colo.
2006). Despite this lack of authorization, as demonstrated above, supra
Part I, VidAngel admits that it makes such unauthorized copies and stores
them on its servers. VidAngel Br. at 11, 20. Such storage is undeniably a
fixation “that can be perceived with the aid of a machine or device.” See,
e.g., Matthew Bender & Co. v. West Publ’g Co., 158 F.3d 693, 702 (2d Cir.
1998), cert. denied, 526 U.S. 1154 (1999) (citing 17 U.S.C. § 101).
Nor does the FMA contain any language exempting unauthorized
public performance of works. Courts have made clear that a service (like
VidAngel) that streams copyrighted works over the internet is publicly
performing them and thus requires a license. See Aereo, 134 S. Ct. at 2498;
WTV Sys., Inc., 824 F. Supp. 2d at 1011.
Finally, Section 110 plainly states that “[n]othing in [the FMA] shall
be construed . . . to have any effect on defenses or limitations on rights
granted under any other section of this title or under any other paragraph of
this section.” 17 U.S.C. § 110. Thus, by its terms, the FMA was not
intended to enlarge any other limitation on rights such as the first-sale
doctrine or fair use. VidAngel, however, contends that the FMA supports its
claim that the filmmaker’s rights are limited by both doctrines.
VidAngel Br. at 27, 29-30, 32-43.
16

See

C. VidAngel’s Misinterpretation of the FMA Violates the Canon
of Narrow Construction of Statutory Exceptions.
Finding the plain meaning of the FMA a poor fit, VidAngel instead
offers a patchwork of semantic tricks in a failed attempt to stretch the statute
to its needs. In just two short paragraphs in its brief, VidAngel encourages
the court to misinterpret the statue using a remarkable variety of doublespeak. Phrases such as “a common sense reading of the statute,” “most
naturally described,” “authorizes . . . broadly,” and “most natural
construction,” id. at 21-22, are all strong indications that VidAngel’s
argument reaches well past the plain text of the statute.
The various readings of the FMA that VidAngel advances all violate
the fundamental canon of construction that presumes that exemptions to
statues should be construed narrowly. See C.I.R. v. Clark, 489 U.S. 726, 739
(1989); see also John Hancock Mut. Life Ins. Co. v. Harris Tr. & Sav. Bank,
510 U.S. 86, 95-97 (1993) (ERISA); U.S. Dep’t of Justice v. Landano, 508
U.S. 165, 181 (1993) (FOIA); Citicorp Indus. Credit, Inc. v. Brock, 483 U.S.
27, 33-35 (1987) (FLSA). This basic principle of interpretation is even more
important when, as here, the Constitutionally-protected rights of artists and
copyright holders are at issue. See, e.g., Tasini v. N.Y. Times Co., 206 F.3d
161, 168 (2d Cir. 2000), aff’d, 533 U.S. 483 (2001); Fame Publ’g Co. v. Ala.

17

Custom Tape, Inc., 507 F.2d 667, 670 (5th Cir. 1975); Ryan v. CARL Corp.,
23 F. Supp. 2d 1146, 1150 (N.D. Cal. 1998).
Perhaps the best example of VidAngel’s overbroad approach is its
attempt to enlarge the scope of the words “from an authorized copy” until
the phrase loses all meaning. According to VidAngel, any performance of a
copyrighted work is from an authorized copy of that work, as long as a copy
of the work was purchased legitimately somewhere along the causal chain,
no matter how much unauthorized copying or distribution has occurred
between the purchase and performance. See VidAngel Br. at 22.
Clearly, this argument proves too much, because most piracy can trace
its origin to a copy that was legitimately obtained at some stage. VidAngel’s
attempt to create a loophole for itself would mean that almost every
performance of a copyrighted work comes “from an authorized copy,”
including the activities of past illicit services like Napster (authorized copies
illegally uploaded by users), MP3.com (authorized copies purchased by
pirate streaming service), MP3tunes (authorized promotional copies
“sideloaded” into cloud lockers), and Aereo (authorized broadcasts
retransmitted through the Internet).
A holding by this court that supports VidAngel’s interpretation of the
FMA would have implications for future business that exploit that statute,
18

but could also be cited by a wide variety of users outside of the FMA context
who might claim that their infringement is also a performance “from an
authorized copy” as MP3.com and other services have tried in the past. It is
clear that Congress could not have intended such a limited exception in the
FMA lead to such an absurd result. The alternate interpretation, that the
words “from an authorized copy” in the statute are confined to their literal
meaning that a performance or transmission must originate directly and
contemporaneously from the authorized copy itself to be authorized by the
FMA, is clearly superior.
VidAngel also would have this Court enlarge the FMA’s statutory
exemption by adding intermediate copying and storage to the two activities
the statute allows: (1) “making imperceptible”; and (2) the creation of
technology to “make imperceptible.” VidAngel Br. at 21. However, when
Congress has intended to exempt intermediate copying and storage under
certain circumstances from infringement liability, it has done so explicitly.
See 17 U.S.C. § 117(a), 512(b). Congress could have added direct language
to the FMA if it had wanted to create an exemption for infringement of a
rightsholder’s exclusive reproduction right, but did not.

19

D. VidAngel’s Argument Violates the Rule Against Surplusage.
Finally, VidAngel’s argument violates the familiar rule against
surplusage. “It is a cardinal principle of statutory construction” that the
courts should not construe enactments of the legislative branch to cause any
clause, sentence, or word to be “superfluous, void, or insignificant.” TRW
Inc. v. Andrews, 534 U.S. 19, 31 (2001) (internal quotation omitted); see
also Ratzlaf v. United States, 510 U.S. 135, 140 (1994); Kungys v. United
States, 485 U.S. 759, 778 (1988) (Scalia, J., plurality opinion); South
Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 510 n.22 (1986).
VidAngel, however, invites this Court to delete the key “authorized copy”
and “fixed copy” requirements from the statute. See VidAngel Br. 20-26.
Reversal here would violate the plain meaning rule, the presumption
for narrow construction of exemptions, and the rule against surplusage. This
court should interpret the FMA as Congress wrote it – not as VidAngel
wishes it were written. See Aereo, 134 S. Ct. at 2511 (“[T]o the extent
commercial actors or other interested entities may be concerned with the
relationship between the development and use of [new] technologies and the
Copyright Act, they are of course free to seek action from Congress.”
(citing Digital Millennium Copyright Act, 17 U.S.C. § 512)).

20

E. The Legislative History of the FMA Makes Its Limited
Application Clear.
Both the Senate and House were careful to note that the FMA was
intended to be narrowly applied when the bill was being debated. Yet in
several places in its brief, VidAngel argues that Congressional intent in 2005
was to create a broad exception for practically any activity that a company
found it advisable or convenient to take in order to implement a filtering
system. See, e.g. VidAngel Br. at 19 & n.28-20, 22-23.
VidAngel’s arguments boil down to an assertion that Congress
intended that the presence of filtering, some types of which the FMA
permits, justifies other infringements. This is wrong. Indeed, the Senator
who introduced the 2005 FMA, Orrin Hatch, was clear that “infringing
transmission[s] [are] not rendered non-infringing by section 110(11) by
virtue of the fact that limited portions . . . are made imperceptible.” 150
Cong. Rec. S.11852-01, S11853 (daily ed. Nov. 24, 2004) (Sen. Hatch). 3
But according to its own marketing, VidAngel is “not licensed to provide
unfiltered content and doing so would be unfair to the companies that make
the content.”

Brad Rhees, Why Are Filters Required?, VidAngel (Jan.

3

Senator Hatch also provided another example of the narrowness of the
FMA’s exemption when he assured other legislators and the public that the
FMA “does not provide any exemption from the anticircumvention
provisions of section 1201 of title 17.” Id. (emphasis added).
21

2017), https://vidangel.zendesk.com/hc/en-us/articles/231972068-Why-AreFilters-Required-. This admission itself dooms VidAngel’s defense, because
it concedes that only filtering makes this case different from any other action
against an illegal streaming service and that, without filtering, its activities
would be both infringing and unfair. See id.
The House Committee that was responsible for the FMA was even
more specific about the reproduction right, stating that the FMA was not
intended to exempt actions resulting in fixed copies of works. Clean Flicks,
433 F. Supp. 2d at 1240 (citing H.R. Rep. No. 109-33(I), at 6-7 (2005),
reprinted in 2005 U.S.C.C.A.N. 220, 225). 4
Thus, the legislative history shows that both houses of the appropriate
branch of government had the opportunity to make the policy choice now
urged by VidAngel and rejected it. Id.

4

VidAngel’s arguments are echoed by amici¸ former Representatives
Hostettler and Bachus. Br. of Reps. Hostettler and Bachus, Dkt. 26, at 1617. They argue that Congressional intent in 2005 was to create broad
enough safe harbor to protect any new technology that had filtering
(primarily for violence, as compared to VidAngel’s focus on sex and
language) as its goal. However, while Congress may have been interested in
encouraging new filtering companies that were not then in operation, the
“fixed copy” and “authorized copy” limitations on the FMA’s safe harbor
would also apply to those company’s new technological developments. On
those issues, too, VidAngel’s admissions settle the matter.
22

F. The Historical Context of the FMA Makes Its Limited
Application Clear.
The FMA was enacted only 12 years ago. The developments that led
to its adoption are thus easily ascertained. Indeed, other courts have noted
that the FMA was passed in the wake of litigation against two companies
that violated copyright law in similar circumstances to VidAngel, Clean
Flicks and ClearPlay. However, the FMA did not shield every aspect of
either of those companies, just as it does not shield VidAngel’s illegal
reproduction and public performance of the plaintiffs’ works.
The FMA was enacted during the pendency of litigation against
CleanFlicks and Family Flix. Id. Like VidAngel, those companies had as
their goal the commercial exploitation of re-edited Hollywood films with
certain content “filtered out.” Id. at 1238. Like VidAngel, as their “initial
step,” they purchased a DVD of a film at retail before it created a fixed copy
of an “edited” work. Id. at 1238-39. And like VidAngel, the presence of
these fixed copies took CleanFlicks and Family Flix firmly out of the ambit
of the FMA. Id. at 1240.
In contrast with these two, a third company, ClearPlay, provided DVD
playback equipment that made imperceptible portions of truly “authorized
copies” of films that end users purchased themselves. VidAngel Br. at 8-9.
ClearPlay did not create a fixed copy of work, and its equipment enabled
23

“filtered” performances “from authorized copies” under the plain meaning of
the word, i.e., DVDs of films that ClearPlay customers bought themselves.
Id.
That the FMA applied to the then-current structure of one of the
offerings from the three companies, and not the other two, demonstrates the
narrow application of the text of the statue. The FMA means what it says,
and is not meant to be “broadly” applied to immunize any infringement that
purportedly occurs incident to “filtering.”
III.

THIS COURT SHOULD NOT REWRITE THE DMCA TO
ACCOMMODATE VIDANGEL’S ILLEGAL BUSINESS
MODEL
VidAngel’s brief repeatedly attacks the film studios who sued it as

“the richest entertainment companies on Earth,” VidAngel Br. at 1, and as
enemies of those Americans who want to view films without adult content.
Id. passim. Without commenting on the propriety of those accusations,
amicus merely points out that its membership represents a diverse range of
copyright creators and owners, including outside the filmmaking industry.
Yet a reversal in this case will affect them as surely as it will the studios
because they also depend on copyright protections.
As all forms of expression are increasingly distributed and consumed
digitally, amicus’s members increasingly rely on the protections of the anti24

circumvention provisions in Section 1201 of the Digital Millennium
Copyright Act (“DMCA”). As Congress foresaw, virtually every artist,
writer, and member of the creative community, from the largest music labels
to the smallest independent video game designer or photographer, has made
their works available to the public digitally in the years since the DMCA
was passed.
The only thing standing between these works and general, free
distribution online are the anti-circumvention provisions of the DMCA.
Thus, any judicial narrowing of the protections found in Section 1201 of the
DMCA would have profound effects on amicus and across the economy.
VidAngel’s DMCA and fair use arguments have the potential to embolden
others to adopt similar business practices, making use of the same arguments
that VidAngel advances.
Specifically, VidAngel further claims that it can prevail on this appeal
without the Court reversing its decision in MDY Industries, LLC v. Blizzard
Entertainment, Inc., 629 F.3d 928, 950 n.12 (9th Cir. 2010), amended and
superseded on denial of reh’g, No. 09-15932 (9th Cir. Feb. 17, 2011), and
holding that a nexus between circumvention and copyright infringement is
required for liability under Section 1201(a). However, this is not the case.

25

VidAngel concedes that it “uses software” to hack the technology that
prevents unauthorized access to the plaintiffs’ works. VidAngel Br. at 35.
However, it claims to be authorized to do so by those same filmmakers. Id.
at 35. As an initial matter, the idea that VidAngel’s activities are authorized,
while bold, is absurd. VidAngel itself admits that the Studios have declined
to grant them licenses to copy and stream (i.e., publicly perform) any
content. VidAngel Br. at 25; supra at 21-22 (VidAngel webpage). Instead,
VidAngel claims to be authorized as a retail purchaser of DVDs. VidAngel
Br. at 35. VidAngel would have the Court believe that it is acting under
authorization of a copyright license, by claiming that “a lawful purchaser of
a digital work is authorized by the copyright holder to circumvent
encryption.” Id. at 38 (emphasis added).
In other words, VidAngel’s entire Section 1201(a) argument rests on
the idea that because it has received an implied permission to view the
content on a DVD, it has not exceeded its copyright license, and therefore
has not committed circumvention of access controls. Such an argument
appears to be a form of magical thinking that would eviscerate the
protections afforded by the DMCA for encryption mechanisms that control
access to a protected work. Indeed, VidAngel asserts, contrary to Blizzard,

26

that liability for circumvention of such controls can only be for the
infringement of exclusive rights under Section 106. Id. at 32-38.5
VidAngel has not received any type of permission to circumvent the
technological measures in place. Nor is there any general permission to do
so on which VidAngel might rely. Moreover, the ability to view does not
translate to the ability for an entity like VidAngel to circumvent access
control measures – and particularly not for purposes of copying and
streaming that is central to VidAngel’s service.
Finally, it would be contrary to public policy to hold that
circumvention of an access control under Section 1201(a) requires a further
act of infringement to ground any sort of liability. Raising the bar on
liability for a Section 1201(a) violation would frustrate the purposes of the
DMCA to protect, not just companies like the plaintiffs here, but a wide
variety of creative professionals.6

Amicus’s members and many other

5

Of course, a three-judge panel of this court must follow Blizzard, unless
“the reasoning or theory of our prior circuit authority is clearly irreconcilable
with the reasoning or theory of intervening higher authority.” Lair v.
Bullock, 798 F.3d 736, 745 (9th Cir. 2015). There is no such intervening
authority here.
6

The brief of amicus the Electronic Freedom Foundation (“EFF”) also raises
issues for which this appeal is not an appropriate vehicle. As an initial
matter, the record underlying the preliminary injunction order on appeal is
simply not developed enough for a sweeping decision overturning Section
1201 on First Amendment grounds on the facts of the present case.
Moreover, while much of the EFF’s brief concerns the dissemination of
27

members of the creative community depend on the anti-circumvention
provisions of the DMCA to protect digital copies of their work.
Circumscribing Section 1201 to chain them to remedies that already existed
before the DMCA would render the statute superfluous. Indeed, such a
move would dramatically increase the availability of unauthorized copies of
creative works on the Internet and make it even more difficult for creators to
earn the revenues they need to invest in new works.

information outside of copyright, such as automobile repair or potentially
“hackable” Internet security vulnerabilities, see e.g., EFF Br. 6, 9, 12-20, 23
n.4, those issues are not pertinent to the case before this Court, which
involves pure expressive and copyrightable content.
28

CONCLUSION
For the reasons set forth above, and for those set forth in Appellees’
brief, amicus curiae respectfully requests that the decision below be
affirmed.
Dated:

New York, New York
February 15, 2017
s/ Eleanor M. Lackman
Eleanor M. Lackman
Counsel of Record
Lindsay W. Bowen
COWAN DEBAETS ABRAHAMS &
SHEPPARD LLP
41 Madison Avenue, 38th Floor
New York, New York 10010
Tel: [phone]
Keith Kupferschmid
Terry Hart
COPYRIGHT ALLIANCE
1224 M Street, NW, Suite 101
Washington, DC 20005
Tel: [phone]
Attorneys for Amicus Curiae

29

CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-volume
limitations of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,046
words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f), as
counted by Microsoft® Word 2007, the word processing software used to
prepare this brief.
This brief 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 typeface using
Microsoft® Word 2007, Times New Roman, 14 point.
s/ Eleanor M. Lackman
Eleanor M. Lackman
Attorney for Amicus Curiae
Dated:
February 15, 2017

30

CERTIFICATE OF SERVICE

I hereby certify that 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
appellate CM/ECF system on December 15, 2017.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
Dated:

December 15, 2017
By:

/s/ Lindsay W. Bowen
Counsel for amicus curiae The Copyright Alliance