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

Filing 59

Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by DVD Copy Control Association, Inc. and Advanced Access Content System License Administrator, LLC. Date of service: 02/15/2017. [10320990] [16-56843] (Short, Dean) [Entered: 02/15/2017 02:16 PM]

No. 16-56843

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DISNEY ENTERPRISES, INC., ET AL.,
Plaintiffs-Appellees,
v.
VIDANGEL, INC.
Defendant-Appellant.
On Appeal from the United States District Court
For the Central District of California
Hon. Andre Birotte Jr.
No. 2:16-cv-04109-AB-PLAh
BRIEF OF DVD COPY CONTROL ASSOCIATION, INC.
AND ADVANCED ACCESS CONTENT SYSTEM
LICENSE ADMINISTRATOR, LLC AS AMICUS CURIAE
IN SUPPORT OF PLAINTIFFS-APPELLEES
Bruce H. Turnbull
TURNBULL LAW FIRM, PLLC
5335 Wisconsin Avenue, NW
Suite 440
Washington, DC 20015
202-274-1801

Dean E. Short
SHORT LEGAL GROUP
5000 Birch Street
West Tower Suite 3000
Newport Coast, CA 92660
949-478-5878

February 15, 2017
Counsel for Amicus Curiae DVD Copy Control Association, Inc. and
Advanced Access Content System License Administrator, LLC

CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure (“Fed. R.
App. P.”), the undersigned counsel for the Amici DVD Copy Control Association
(“DVD CCA”) and Advanced Access Content System Licensing Administrator,
LLC (“AACS LA”) submit this statement to certify that neither Amici has a parent
corporation, nor do Amici issue stock, including to any publicly held corporations.
Nevertheless, although not required by Fed. R. App. P. 26.1, Amicus AACS
LA identifies the following entities who are its members: International Business
Machines Corporation, Panasonic Intellectual Property Corporation of America,
Microsoft Corporation, SCA IPLA Holdings, Toshiba America Information
Systems, Inc., Warner Bros. Entertainment Inc., Disney Worldwide Services, Inc.
and DCP, LLC. (See infra footnote 1 regarding interested parties.)

i

TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT…………………………………..i
TABLE OF CONTENTS………………………………………………………...ii
TABLE OF AUTHORITIES…………………………………………………….iii
STATEMENT OF INTEREST…………………………………………………..1
BACKGROUND………….……………………………………………………..4
SUMMARY OF ARGUMENT…………………………………………………16
ARGUMENT……………………………………………………………………17
A.

B.

C.

D.

The District Court Properly Found that Appellant’s System Circumvents
Effective Technological Measures (CSS and
AACS Technology) in Violation of Section 1201(a)(1)………………….17
The District Court Properly Found that No Exemption or
Exception to the Circumvention Prohibitions of Section
1201(a)(1) Is Available for Appellant VidAngel’s System……..…..…...18
1.
The District Court Correctly Rejected Appellant’s
“Space-shifting” Argument………………………………………..18
2.
Appellant has Not Been Granted an Exemption by
the Librarian of Congress under the DMCA’s
Recognized Process……………………………………………..…20
3.
The Family Movie Act Does Not Provide an
Exemption to the DMCA Anti-Circumvention
Provision…………………………………………………………...22
Granting Appellant’s Appeal Would Undermine
the DVD and Blu-ray Disc Ecosystems that Depend
on CSS and AACS Technology……………………………………...…...24
Allowing Appellant’s System to Continue to Operate
as Proposed by Appellant Would Harm Legitimate Filtering
Services in the Market…………………………………………………....26

CONCLUSION……………………………………………………………….....27
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT………...28
CERTIFICATE OF SERVICE………………………………………….……….29

ii

TABLE OF AUTHORITIES
Federal Cases

Page(s)

321 Studios v. Metro Goldwyn Mayer Studios, Inc.,
307 F. Supp. 2d 1085 (N.D. Cal. 2004)……………………………11,14,15,19
AACS LA, LLC v. Lanny Shen d/b/a DVDFAB,
Case No. 14 Civ. 1112 (VSB) (S.D.N.Y. filed March 4, 2014
Pending Appeal as of June 21, 2016); Docket available at:
(https://ecf.nysd.uscourts.gov/cgi-bin/
DktRpt.pl?523941689469329-L_1_0-1)...................................................15,16
Realnetworks, Inc. v. DVD Copy Control Ass’n,
641 F. Supp. 2d 913 (N.D. Cal. 2009)……………………………………14,15
Universal Studios, Inc. v. Corley,
273 F.3d 429 (2d Cir. 2001)……………………………………………..6,10,19
Universal Studios, Inc. V. Reimerdes,
111 F. Supp. 2d 294 (S.D.N.Y. 2000)……………………………………11,14

FEDERAL STATUTES
17 U.S.C. §110(11)…………………………………………………………..22,23
17 U.S.C. § 1201……………………………………………………………..passim
17 U.S.C. § 1201(a)…………………………………………………………..passim
17 U.S.C. § 1201(a)(1)……………………………………………………….passim
17 U.S.C. § 1201(a)(1)(A)………………………………………………………10
17 U.S.C. § 1201(a)(2)……………………………………………………….14,15
17 U.S.C. § 1201(a)(3)(A)………………………………………………………10

iii

17 U.S.C. § 1201(a)(3)(B)………………………………………………………11
17 U.S.C. § 1201(b)……………………………………………………………..15

LEGISLATIVE MATERIALS
Staff of H. Comm. on the Judiciary, 105th Cong.,
Section-By-Section Analysis Of H.R. 2281 As Passed
By The United States House Of Representatives
On August 4, 1998, At 6 (Comm. Print 1998)…………………………………...5
H.R. Rept. 105-796, Conference Report, to accompany H.R. 2281,
Digital Millennium Copyright Act (October 8, 1998) at 64-65,
available at https://www.congress.gov/105/crpt/hrpt796/
CRPT-105hrpt796.pdf (last visited February 13, 2016)………………………….5
U.S. Copyright Office 37 CFR 201, 80 Federal Register 65944
(October 28, 2015)……………………………………………………………11,21
United States Copyright Office: Section 1201 Rulemaking:
Sixth Triennial Proceeding to Determine Exemptions to the
Prohibition on Circumvention (October 2015); Available at:
https://www.copyright.gov/1201/2015/introduction-analysis.pdf/
(last visited February 15, 2017)………………………………………………12,20
Library of Congress, United States Copyright Office Final Rule,
Fed. Register 2015-27212, Docket No. 2014-07; Available at:
https://copyright.gov/1201/2015/fedreg-publicinspectionFR.pdf
(last visited February 15, 2017)…………………………………………………20
U.S. Copyright Office 37 CFR 201, 77 Federal Register 65260
(October 26, 2012)………………………………………………………………21
INTERNATIONAL LAW
Article 11, WIPO Copyright Treaty (adopted in Geneva on
December 20, 1996), available at
iv

http://www.wipo.int/treaties/en/text.jsp?file_id=295166#P87_12240
(last visited February 11, 2017)……………………………………………….….4
Article 18, WIPO Performances and Phonograms Treaty
(adopted in Geneva on December 20, 1996), available at
http://www.wipo.int/wipolex/en/treaties/text.jsp?file_id=295477
(last visited February 13, 2017)……………………………………………….….4
United States Trade Representative, 2013 Out-of-Cycle
Review of Notorious Markets, (February 12, 2014) at 9,
available at https://ustr.gov/sites/default/files/
02122014-2013-OCR-Notorious-Markets.pdf
(last visited February 6, 2017)……………………………………………………12
Office of the United States Trade Representative (Acting United States
Trade Representative Demetrios Marantis), 2013 Special 301 Report
(May 2013) at 21, available at
https://ustr.gov/sites/default/files/2013%20Special%20301%20Report%20%20published.pdf (last visited February 6, 2017)………………………………..13
OTHER SOURCES:
http://www.dvdforum.org/faq-dvdprimer.htm#1/....................................................5
http://www.dvdcca.org/css.aspx/..............................................................................6
http://www.tomshardware.com/news/Blu-ray-disc-sales-dark-knight,6823.html/...8
http://www.aacsla.com/..........................................................................................10
http://antiguaobserver.com/30k-fine-for-first-conviction-under-copyright-act/.....13
https://torrentfreak.com/popular-blu-ray-ripper-shuts-down-following-legalpressure-160224/.....................................................................................................13
http://www.myce.com/news/redfox-continues-development-anydvd-hdversion-7-6-9-2-78941/…………………………………………………………....13
http://www.slysoft.com/..........................................................................................13
v

OTHER SOURCES, CONT.:
https://torrentfreak.com/slysoft-dvd-ripper-owner-found-guiltyin-criminal-action-140403/………………………………………………..………13
https://try.clearplay.com/home/..............................................................................23

vi

STATEMENT OF INTEREST OF DVD COPY CONTROL ASSOCIATION
AND ADVANCED ACCESS CONTENT SYSTEM LICENSING
ADMINISTRATOR, LLC AS AMICI CURIAE
Amici DVD Copy Control Association (“DVD CCA”) and Advanced Access
Content System Licensing Administrator, LLC (“AACS LA”) respectfully submit
this brief with the consent of all parties. See Fed. R. App. P. 29(a).
DVD CCA is a not-for-profit corporation organized under the State of
Delaware and recognized by the Internal Revenue Service as a business league
under Section 501(c)(6) of the Internal Revenue Code. DVD CCA has over 145
licensees including large and small companies from the consumer electronics,
computer, and motion picture industries, each of which is also a member of DVD
CCA entitled to participate in the governance of the association. DVD CCA
operates through a Board of Directors that is elected by those members that have
chosen to exercise the right to participate in the selection of the Board of Directors.
AACS LA is a limited liability company organized under the laws of the
State of Delaware and is composed of eight corporate members that are, or are
affiliates of, the eight corporations that founded the company and developed the
technology that it licenses. AACS LA has over 1000 licensees from countries
around the world, including from the motion picture content, motion picture
servicing (e.g., disc replicators), consumer electronics, and computer industries.
Amici DVD CCA and AACS LA are each engaged in the business of
1

licensing their respective technologies that are designed to protect copyrighted
works on home video discs against unauthorized access and use. DVD CCA
licenses the Content Scramble System (“CSS”) to protect works on DVDs and
engages in associated activities to support the licensed technology. AACS LA
developed and licenses its encryption-based technology to protect high-definition
motion picture content on Blu-ray Discs (“AACS Technology”) and also engages
in associated activities to support its licensed technology. Neither DVD CCA nor
AACS LA are parties to this case. Amici represent that in the preparation and
filing of this brief, (i) it was not authored in whole or in part by any party’s counsel,
(ii) no direct contribution was made by a party or party’s counsel to fund preparing
or submitting the brief, and (iii) no direct contribution was made by any other
person, other than the Amici, its members, or its counsel, to fund preparing or
submitting the brief.1 Fed. Rules of App. Proc. Rule 29(a)(4)(E)(i)-(iii).

1

Appellees Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, and
Warner Bros. Entertainment, Inc. or their related subsidiaries/parent
companies/affiliates are licensees and participating members of DVD CCA and
pay annual dues/license fees to the organization. Employees of each of these
companies are current board members of DVD CCA. However, neither those
companies nor their respective representatives (including those who are current
board members) participated in the authorship of this brief or made any monetary
contribution that was intended to fund this brief. AACS LA’s founding companies
are Disney Worldwide Services, Inc., IBM Corporation, Intel Corporation,
Microsoft Corporation, Panasonic Corporation, Sony Corporation, Toshiba
Corporation, and Warner Bros Entertainment, Inc., and the companies that are
members of the AACS LA, LLC are the listed companies or their affiliates.
2

Amici DVD CCA and AACS LA’s interest in this case is substantial given
that their core businesses are directly affected by Appellant’s circumvention of
Amici’s respective technologies in order to gain access to Appellees’ motion
picture content and, more importantly, because this Court’s ruling and any
precedent that may be established thereby could have sweeping implications for
both Amici and their respective licensing ecosystems.
Each of CSS and AACS Technology is a “technological measure that
effectively controls access to a work protected under this title” and, as such,
circumvention of each technology is prohibited by Section 1201(a)(1) of the
Digital Millennium Copyright Act (“DMCA”) (hereinafter referenced as “Section
1201”). Specifically, CSS and AACS Technology are technological protection
measures that are the bases for Appellees’ allegations that the Appellant violated
Section 1201 and on which the District Court based its finding that is on appeal in
this case. ER006. The issues on appeal directly affect DVD CCA and AACS LA,
and as such they have come together to jointly file this Amicus Curiae Brief.

Neither Warner Bros Entertainment Inc. nor Disney Worldwide Service, Inc. nor
their affiliates or representatives participated in the authorship of this brief or made
any monetary contribution that was intended to fund this brief.
3

I.

BACKGROUND CONCERNING TECHNOLOGICAL PROTECTION
MEASURES.
A. CSS and AACS Technologies Are Quintessential Technological
Protection Measures That Congress Intended To Protect Against
Circumvention
1. The Development of Disc-Based Digital Home Entertainment
Market Through Law, Technological Development and Licensing
In late 1996, as the digital revolution was just beginning, the countries of the

world came together in the World Intellectual Property Organization (“WIPO”)
and agreed that each country would enact legal prohibitions against circumvention
of technological protection measures employed to protect copyrighted materials
against unauthorized access and use.2 In 1998, the United States Congress
implemented provisions of the WIPO treaties by enacting the Digital Millennium
Copyright Act (“DMCA”). In enacting the new law, Congress noted that
technological protection measures can “support new ways of disseminating
copyrighted materials to users, and...safeguard the availability of legitimate uses of

2

See Article 11, WIPO Copyright Treaty (adopted in Geneva on December 20,
1996), available at
http://www.wipo.int/treaties/en/text.jsp?file_id=295166#P87_12240 (last visited
February 11, 2017). See also Article 18, WIPO Performances and Phonograms
Treaty (adopted in Geneva on December 20, 1996), available at
http://www.wipo.int/wipolex/en/treaties/text.jsp?file_id=295477 (last visited
February 13, 2017).
4

those materials by individuals.”3 Further, Congress also recognized that the best
means of ensuring that such technological protection measures would work to the
benefit of consumers as well as the industries involved was through cooperative
efforts of interested parties working together.4
In the same timeframe, the Content Scramble System (“CSS”) was
developed in exactly the manner recognized by Congress. Two leading consumer
electronics companies (Panasonic and Toshiba) put forward a proposed
encryption/scrambling system to be applied to the movie content that was to be
stored on the then-new DVD format discs.5 A large team of experts from motion
picture, consumer electronics, and information technology companies worked
together to recommend a proposed scrambling technology and a set of standardized
rules regarding compliance with particular requirements—and importantly, rules
regarding resistance against technological attacks (these rules referred to herein
generally, as “security requirements”). The result was a set of technical

3

Staff of H. Comm. on the Judiciary, 105th Cong., Section-By-Section Analysis Of
H.R. 2281 As Passed By The United States House Of Representatives On August 4,
1998, At 6 (Comm. Print 1998).
4
H.R. Rept. 105-796, Conference Report, to accompany H.R. 2281, Digital
Millennium Copyright Act (October 8, 1998) at 64-65, available at
https://www.congress.gov/105/crpt/hrpt796/CRPT-105hrpt796.pdf (last visited
February 13, 2016).
5
The official name for the format is simply the letters, “DVD,” but the unofficial
understanding of the meaning of the letters is “Digital Versatile Disc,” referencing
the multiplicity of uses for the discs. See http://www.dvdforum.org/faqdvdprimer.htm#1 (last visited February 13, 2016).
5

specifications and a set of security requirements licensed under a licensing
agreement requiring companies building DVD players to comply with those rules
in order to build compliant products that would be permitted to decrypt the content
recorded on the DVD discs. DVD CCA also licenses the method for studios and
other content companies to protect their content using CSS on DVDs. The industry
wide adoption of the technical specifications and security requirements promoted a
large interoperable ecosystem of devices and discs that allowed consumers to enjoy
a reliable playback experience on a range of licensed consumer electronics devices
and computer-platform products.6
Digital copies of movies, unlike degrading analog copies made from the
prior VHS medium, are exact duplicates of the source material, meaning the first
copy looks the same as the thousandth copy. Therefore, without the protections
afforded by CSS, and the anti-circumvention prohibitions set forth in the DMCA,
movie companies were not willing to entrust their highest value digital content to
the risks from unauthorized copying and other uses of the new digital format.7
DVD CCA came into existence in late 1999 as a multi-industry trade association

6

For more information on DVD CCA, visit http://www.dvdcca.org/css.aspx.

7

See Real Networks, et. al v. DVD Copy Control Association, et. al, No. C 0804548 MHP (U.S. D. Ct., Northern District, CA), Memorandum and Order, August
11, 2009 at 5; Universal City Studios, Inc. v. Corley, 273 F. 3d 429 (2d Cir. 2001)
at 436.
6

with the primary purpose of licensing the CSS technology to protect digital content
on DVDs.8
In the early 2000’s, as technology developed and high definition displays
began to come to market, the industries, again working together as Congress had
envisioned, realized that a new high definition format disc would allow consumers
to enjoy premium motion picture content on new High Definition (“HD”) displays.
Industry members adopted what became known as Blu-ray Disc™. Eight
companies from the three main industry groups involved with bringing the format
to market (motion picture, information technology, and consumer electronics)
came together to create what became AACS Technology, which is the equivalent
approach to Blu-ray Discs as CSS was to DVD (although AACS Technology is
much updated technically from CSS).
AACS Technology is licensed by AACS LA and fosters further
development and capabilities for the Blu-ray format. The Blu-ray Disc format and
AACS Technology were each launched in 2006. Blu-ray Discs rapidly became a

8

Prior to 1999 CSS had been licensed by Panasonic (then Matsushita Electric
Industrial Co., Ltd.), one of the consumer electronics companies that had
developed it in 1996. In December 1999, the two inventing companies licensed the
technology on a royalty-free basis to DVD CCA.
7

highly successful format offering consumers an HD quality video viewing
experience, with content from large and small motion picture companies.9
In the twenty years since CSS was launched into the market and the over ten
years since AACS Technology was launched, both licensing systems are the
bedrock for the development of these highly successful formats, enabling hundreds
of millions of consumers to enjoy movie and other video content protected using
the technologies. Both DVD CCA and AACS LA offer their licenses on fair,
reasonable and non-discriminatory (known as “RAND” licensing) terms and
conditions, recovering only enough revenue from license fees to cover the costs of
administering their licensing programs and maintaining their technologies.
Although DVD sales and usage have declined in recent years, the format,
protected by CSS, remains a very important platform for distribution of motion
pictures and TV programming to consumers, as well as for consumers to continue
to enjoy the DVD discs they purchased over the past twenty years (or that they
continue to rent). AACS Technology also remains a viable measure for protection
of motion picture content on Blu-ray Discs against unauthorized access and uses
worldwide.10
9

See Marcus Yam, Blu-ray is Penetrating the Market, Tom’s Hardware
(January12, 2009), available at http://www.tomshardware.com/news/Blu-ray-discsales-dark-knight,6823.html.
10
Even today, as video technology evolves, AACS LA has developed a next
generation technology that is now protecting the recently launched Ultra HD Blu8

2. Bases for DMCA Section 1201 Protection of CSS and AACS
Technology Implementation
The critical feature of both CSS and AACS Technology is that playback of
the video content protected by these technologies is enabled only for licensed
players made by manufacturers that follow the security requirements that include
cryptographic secrets pursuant to the respective licenses from DVD CCA and
AACS LA. Individual consumers purchasing a DVD or Blu-ray Disc are not
provided the keys or other cryptographic secrets that are necessary for playback.
They must use a licensed player, which, in turn, must abide by the technical
specifications and security requirements imposed by the licenses from DVD CCA
or AACS LA, as applicable. Those specifications and security requirements are
designed to ensure that the content is not accessed or used in an unauthorized
manner.
Neither license allows distribution of movie or other content from the discs
either over the Internet or by copying (whether for individual consumer use or for
commercial piracy purposes) onto a hard drive or otherwise. To maintain the
integrity of these systems, DVD CCA, AACS LA, and affected rights holders have

ray™ content against unauthorized uses (known as “AACS2 Technology”).
AACS2 Technology launched in 2015 and is not an issue in the current case, but
AACS LA expects that Appellant/VidAngel would move to circumvent that
AACS2 Technology if this court permits its current operations.
9

taken legal action on several occasions11 when licensees or non-licensee entities
have ignored their respective restrictions.12
The protections afforded by the technical specifications and security
requirements provided by CSS and AACS Technology are themselves protected by
Section 1201 against those who would circumvent those technologies. Specifically,
Section 1201(a)(1)(A) provides that “[no] person shall circumvent a technological
measure that effectively controls access to a work protected under [Title 17].”
Under this Section, to “circumvent a technological measure” means “to descramble
a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass,
remove, deactivate, or impair a technological measure, without the authority of the
copyright owner.” 17 U.S.C. § 1201(a)(3)(A). A technological measure that
“effectively controls access to a work” is one that “in the ordinary course of its
operation, requires the application of information, or a process or a treatment, with

11

See Real Networks, et. al v. DVD Copy Control Association, et. al, 641 F.Supp.
2d 913 (N.D. Cal. 2009), Memorandum and Order at 5; Universal City Studios, Inc.
v. Corley, 273 F. 3d 429 (2d Cir., 2001) at 436.
12
The licensing documents, including the security requirements, are available for
download from the DVD CCA website (www.dvdcca.org) and the AACS LA
website (www.aacsla.com). The technical specifications for CSS are provided
only to licensees (subject to confidentiality requirements in the CSS license).
Neither website provides the keys or other cryptographic secrets that are essential
to decrypting the movie content for viewing from a licensed player. Those keys
and cryptographic secrets are available only pursuant to licenses from DVD CCA
and AACS LA that imposed confidentiality requirements with regard to the
protection of those secrets.
10

the authority of the copyright owner, to gain access to the work.” 17 U.S.C. §
1201(a)(3)(B).
Both technologies are recognized by courts and the U.S. Copyright Office as
“technological protection measures” (also known as TPM’s) effectively protecting
against unauthorized access to copyrighted works, i.e., TPM’s protected against
circumvention by Section 1201(a)(1) of the DMCA.13
DVD CCA and AACS LA continue to license their respective technologies
to protect DVDs and Blu-ray Discs, and the newest protection measure (AACS2)
for protection of Ultra HD Blu-ray. The success of these technologies is due in
large part to the protections afforded by Section 1201 and the interpretive caselaw.
See footnote 15, supra.. This is precisely the result intended by Congress and

13

For CSS, see: 321 Studios v. Metro Goldwyn Mayer Studios, Inc., 307 F. Supp.
2d 1085, 1095 (N.D. Cal. 2004); Universal City Studios, Inc. v. Reimerdes, 111 F.
Sup. 2d 294, 317-18; Real Networks v. DVD Copy Control Association, at 24
(paragraph 91); add Copyright Office statements. For AACS Technology, see
Advanced Access Content System Licensing Administrator, LLC v. Lanny Shen, et
al, No. 14 Civ. 1112 (VSB), Document 87: Memorandum and Order (March 16,
2015) at 15 (“There is no doubt that AACS is a technological measure designed to
control access to copyright protected materials.”) Available at:
https://ecf.nysd.uscourts.gov/doc1/127115743735 (last accessed on February 13,
2017); See also: U.S. Copyright Office 37 CFR Part 201, 80 Federal Register
65944, at pp. 18-19 (October 28, 2015) (Addressing, and declining to extend
exemption to circumvention of technical protection measure that protects Blu-ray
Discs).
11

repeatedly recognized by the U.S. Copyright Office, as follows (in reference
specifically to Section 1201):
“The [DMCA] has played a critical role in the development of
the digital marketplace that is a defining feature of modern life.
Enacted by Congress in 1998, the DMCA has fostered
widespread dissemination and enjoyment of creative works by
establishing legal protections for copyrighted content—as well
as for the consumers and businesses who wish to access and use
it—whether over the internet or through a computer or device.”
Available at
https://www.copyright.gov/1201/2015/introduction-analysis.pdf
B. Appellant VidAngel’s System Uses a Known, Notorious
Circumvention Tool Not Licensed by DVD CCA or AACS LA, and
Illegal Under Section 1201 of the DMCA, to Gain Access to Encrypted
Content on DVDs or Blu-ray Discs and Deliver it to its Customers
Over the Internet
There is no dispute in this case that Appellant uses specific software “tools” to
gain access to the content on a DVD or Blu-ray Disc. Those tools are illegal, offshore circumvention tools sold through an online distribution system by an
enterprise maintained and operated outside of the United States (AnyDVD for CSS
and AnyDVD HD for AACS). SER 1219-20, paragraphs 36-39. The website
distributing these tools has been labeled by the U.S. Government as a “notorious
market” engaged in activities that promote copyright piracy,14 and the U.S. cited

14

United States Trade Representative, 2013 Out-of-Cycle Review of Notorious
Markets, (February 12, 2014) at 9, available at
https://ustr.gov/sites/default/files/02122014-2013-OCR-Notorious-Markets.pdf
(last visited February 6, 2017). The basis for finding that the website’s activities
12

the availability of AnyDVD and AnyDVD HD as a specific issue in its dealings
with the Government of Antigua and Barbuda.15 Moreover, that software has been
found to be an illegal circumvention tool in its country of origin. In 2014, an
Antigua-Barbuda court criminally convicted the owner of Slysoft, Inc. for violation
of that country’s anti-circumvention laws.16 The company’s primary product was
the same circumvention software used by Appellant in its service: AnyDVD HD.
In early 2016, Antiguan authorities took regulatory action as a result of this
conviction, causing SlySoft to cease operations in Antigua and to describe on its
website (www.slysoft.com), that due to regulatory requirements they had to “cease
all activities”.17 Subsequently, some of the software designers of Slysoft’s
AnyDVD and AnyDVD HD products established operations to sell these products
from Belize under the rebranded “RedFox” moniker.18 The products perform the

promote copyright piracy was the fact that the website offered the AnyDVD HD
circumvention software. Id.
15
Office of the United States Trade Representative (Acting United States Trade
Representative Demetrios Marantis), 2013 Special 301 Report (May 2013) at 21,
available at
https://ustr.gov/sites/default/files/2013%20Special%20301%20Report%20%20published.pdf (last visited February 6, 2017)
16
See http://antiguaobserver.com/30k-fine-for-first-conviction-under-copyrightact/ (last visited February 6, 2017); https://torrentfreak.com/slysoft-dvd-ripperowner-found-guilty-in-criminal-action-140403/ (last visited February 8, 2017)
17
See https://torrentfreak.com/popular-blu-ray-ripper-shuts-down-following-legalpressure-160224/ (last visited February 6, 2017); See also https://www.slysoft.com
(last visited February 12, 2017)
18
See http://www.myce.com/news/redfox-continues-development-anydvd-hdversion-7-6-9-2-78941/ (last visited February 6, 2017)
13

same function, however, and AACS LA has pursued both technical and legal
challenges to the new distribution system for AnyDVD HD.
Unfortunately, DVD CCA and AACS LA have found pursuing off-shore
circumvention tools proprietors to be akin to the ageless arcade game “whack-amole,” meaning that, notwithstanding the efforts and successful thwarting by
AACS LA of the proprietors’ offerings on various websites, these tools continue to
be available from non-U.S. Internet sources (although not from recognized,
legitimate U.S. retailers). Although characterized by Appellant as “commercially
available,” there is no doubt that the tools used by Appellant are unlawful
circumvention tools prohibited under Section 1201 and related anti-circumvention
laws of other countries. ER487 at ¶37(ii).
Tools to circumvent CSS as a TPM have been found illegal under Section 1201
in a number of cases.19 The test as to whether the accused technology involved is
subject to any of the Section 1201 anti-circumvention prohibitions is whether there
is circumvention of a technological measure that effectively protects access to
protected works. See Section 1201(a)(1) (prohibiting a user from committing an act
of circumvention for the purpose of gaining access to content effectively protected
by a technological protection measure); Section 1201(a)(2) (prohibiting a person
19

See 321 Studios v. MGM Studios, Inc.,307 F. Supp. 2d 1085 (N.D. Cal. 2004);
Realnetworks, Inc. v. DVD Copy Control Ass’n, 641 F. Supp. 2d 913 (N.D. Cal.
2009); Universal Studios v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000).
14

from trafficking in tools that circumvent technological protection measure that
effectively protects against access to copyrighted content); and Section 1201(b)
(prohibiting a person from trafficking in tools that circumvent a technological
protection measure that effectively protects against uses prohibited by Title 17).
The explanation of what constitutes “circumvention of a technological measure” is
provided in paragraph (3) of Section 1201(a) and is applicable to both Section
1201(a)(1) and Section 1201(a)(2). Hence, the courts’ findings against a series of
defendants who marketed such products in violation of Section 1201(a)(2) are
directly relevant to whether a product that is used to gain access to a work is
circumventing a technological measure protected under the DMCA in violation of
Section 1201(a)(1).
For example, lawsuits based on the anti-trafficking provision of the DMCA to
effectively deter lawful sales of circumvention software in the United States
resulted in decisions holding that products incorporating circumvention processes
marketed by RealNetworks, 321 Studios, and most recently DVDFab violated
Section 1201(a)(2).20

20

See RealNetworks, Inc. v. DVD Copy Control Association, Inc., 641 F. Supp. 2d
913 (2009); 321 Studios v. MGM Studios, Inc., 307 F. Supp. 2d 1085 (N.D. Cal.
2004); AACS LA, LLC v. Lanny Shen d/b/a DVDFAB, (S.D.N.Y. No. 14 Civ. 1112
filed March 4, 2014 Pending Appeal)—Document 87-Memorandum and Order, at
p. 14, available at: https://ecf.nysd.uscourts.gov/doc1/127115743735 (last visited
on 2/13/2017).
15

In 2015, AACS LA obtained a broad injunction against Chinese defendant
FengTao based on Section 1201(a)(2).21 The court prohibited the selling and
marketing of FengTao’s AACS circumvention software called “DVDFab.”
DVDFab was sold and marketed to consumers to decrypt DVDs and Blu-ray Discs
using unlicensed, noncompliant software that then allowed the user to copy or
distribute the content.22
II.

SUMMARY OF ARGUMENT.

The District Court properly held that the DMCA’s unambiguous restriction
against circumvention of CSS and AACS Technology to gain access to
Plaintiffs/Appellees’ protected, copyrighted materials belies Appellant’s claim to
provide a legitimate filtering service to its customers. No exemption provided in
law or regulation permits Appellant’s unauthorized access to the protected
materials on DVD and Blu-ray Discs. Appellant has alternative means to provide
filtering to consumers, through methods that do not require circumvention of CSS
or AACS Technology as is currently accomplished by at least one competitor to
Appellant’s service. DVD CCA and AACS LA respectfully request that the Court,
in considering Appellant’s legal attempt “legitimize” its system, also consider the

21

Preliminary Injunction Order, AACS LA, LLC v. Lanny Shen d/b/a DVDFAB,
Case No. 14 Civ. 1112(VSB)(S.D.N.Y. filed March 4, 2014 Pending Appeal)—
Document 21 (Filed March 4, 2014), available at:
https://ecf.nysd.uscourts.gov/doc1/127113784816 (Last visited on 2/13/2017)
16

likely effect that the same would “legitimize” the illegal circumvention software
utilized by Appellant to provide its service. Finally, the legitimate licensing
ecosystems of DVD CCA and AACS LA, as well as the competing filtering system
offered by Appellant’s filtering competitor(s) in compliance with the law, will be
seriously disrupted if Appellant is allowed to utilize unlawful off-shore
circumvention software tools to unlawfully decrypt content from DVD and Blu-ray
Discs.
III.

ARGUMENT.

A. The District Court Properly Found that Appellant’s System
Circumvents Effective Technological Measures (CSS and
AACS Technology) in Violation of Section 1201(a)(1)
Appellant’s service unlawfully utilizes a known circumvention tool to
remove the copyright protections afforded by recognized TPM’s CSS and AACS
Technology in violation of Section 1201(a)(1). It is undisputed that Appellant’s
service utilizes circumvention software to bypass CSS and AACS in order to gain
access to content that is then copied to Appellant’s servers for purposes of
streaming the unencrypted content to its customers. SER 1213-1214.
As described above, when a consumer purchases a movie on a DVD or Bluray Disc, that consumer obtains the right and ability to watch the DVD or Blu-ray
Disc using a licensed player that is built in compliance with the technical
specifications and is adherent to the security requirements set by DVD CCA and
17

AACS LA. Contrary to Appellant’s assertion that it is authorized by the studios to
avoid the technical protection measures because keys are provided to them, neither
DVD CCA nor AACS LA provide keys directly to consumers. Appellant’s
Opening Brief, p. 35 (“VidAngel is authorized by the Studios to decrypt CSS,
AACS…”) In each instance for playback, keys are resident on, and protected by,
the respective players that adhere to the aforementioned technical specifications
and security requirements. Consumers do not obtain the keys or other
cryptographic information that would allow them to create a product that could
decrypt the movie so that it can be watched (or copied or redistributed). The
licensed player that the consumer uses enables the consumer to use an authorized,
protected connector to connect his or her player to a display that is capable of
receiving and decrypting the content from that connector. Unlicensed products
that have somehow obtained the necessary secrets and technology to enable
playback in a manner not permitted by the CSS or AACS Technology license are
circumvention tools, and the use of such tools is prohibited by Section 1201(a)(1).
B. The District Court Properly Found that No Exemption or Exception
to the Circumvention Prohibitions of Section 1201(a)(1) Is Available
for Appellant VidAngel’s System
1. The District Court Correctly Rejected Appellant’s “Space-shifting”
Argument
In the proceedings below, Appellant maintained that it should be authorized to
circumvent CSS and AACS Technology because it is engaged in “classic space18

shifting” that must be authorized as an exception to the prohibition on
circumvention of an effective technological measure. Appellant’s opening Brief, at
p.16, ¶2. The court below rejected that contention. ER006 at lines 20-21.
Although, on appeal, Appellant has now (mostly) moved its space-shifting
argument to a separate point apparently not directly connected with whether it is
authorized to circumvent CSS and AACS Technology.23 Amici want to make clear
that space-shifting is prohibited under Section 1201, having been rejected by the
Courts and, as discussed in more detail below, by the Librarian of Congress (twice).
This Court should also reject the notion that space-shifting somehow justifies an
exemption from circumvention.24

23

In its Summary of Argument, Appellant states that its “classic space-shifting”
argument will defeat both claims of circumvention and copyright infringement.
Appellant’s Opening Brief at 16. However, in the main Argument section, it
argues only that the “space-shifting” argument is a defense to copyright
infringement. The main DMCA-related argument, on pages 32-38 of Appellant’s
opening brief, does not discuss space-shifting. Only by combining Appellant’s fair
use discussion, pages 27-31, with its later (and incorrect) argument that the DMCA
circumvention prohibitions must have an exemption based on fair use (at pages 4347), does space-shifting re-emerge in Appellant’s DMCA-related argument.
Regardless, as demonstrated above, space-shifting is prohibited by the
circumvention protections of Section 1201, and exemptions for space-shifting have
been rejected by the Librarian of Congress.
24
321 Studios v. MGM Studios, Inc., 307 F. Supp. 2d 1085, 1096 (N.D. Cal. 2004)
citing also Universal City Studios v. Corley, 273 F. 3d 429, 444 (2d Cir. 2001).
19

2. Appellant has Not Been Granted an Exemption by the Librarian
of Congress under the DMCA’s Recognized Process
Appellant has not sought (nor has any other person obtained) an exemption
using the process that Congress established for users to obtain exemptions from the
Section 1201(a)(1) circumvention prohibitions to accomplish what Appellant
desires to do through its internet based movie delivery system. In the language of
the DMCA and in the over 18 years since its enactment, Congress has provided a
specific mechanism to avoid certain unintended consequences from the anticircumvention provisions of Section 1201(a)(1) - a triennial rulemaking process to
permit “…the Librarian of Congress, following a public proceeding conducted by
the Copyright Office, to grant limited exemptions every three years to ensure that
the public can still engage in fair and other non-infringing uses of works.”
Available at https://www.copyright.gov/1201/2015/introduction-analysis.pdf. As
described by the Copyright Office:
“The primary responsibility of the Register and the Librarian in the
rulemaking proceeding is to assess whether the implementation of
access controls impairs the ability of individuals to make noninfringing uses of copyrighted works within the meaning of section
1201(a)(1). To do this, the Register develops a comprehensive
administrative record using information submitted by interested
members of the public, and makes recommendations to the Librarian
concerning whether exemptions are warranted based on that record.”
Available at https://copyright.gov/1201/2015/fedreg-publicinspectionFR.pdf
at page 4/81.

20

The triennial rulemaking proceedings were initiated in the year 2000. DVD
CCA has participated in every one of the triennial proceedings. AACS LA has
participated in every triennial proceeding since the launch of AACS Technology in
2006. The rulemaking process is the Congressionally authorized regulatory
mechanism for a proprietor of new technology or an individual user to seek a
lawful exemption to the anti-circumvention provisions of the DMCA. Appellant
has not participated in any of these proceedings, let alone requested an exemption
that would apply to its system.
None of the exemptions granted to others authorize Appellant’s activities
circumventing CSS and AACS Technology. The Librarian of Congress has
historically granted various exemptions including with respect to CSS and AACS
Technology for educational, hearing impaired/accessibility requirements and other
uses found to be “fair uses” of the protected copyrighted materials.25 However, an
exemption for circumvention for “space-shifting,” which Appellant claims their
service performs, was specifically rejected twice by the Librarian of Congress in
response to specific requests to permit circumvention for that purpose.26

25

See e.g. U.S. Copyright Office 37 CFR 201, 77 Federal Register 65260 (October
26, 2012) at 65270.
26

Id. at 65276-278; and U.S. Copyright Office 37 CFR Part 201, 80 Federal
Register 65944, (October 28, 2015) at 65960.
.
21

As this demonstrates, the District Court was correct in finding that Appellant
had no justification to circumvent CSS or AACS Technology based on the notion
that space-shifting is somehow exempted from Section 1201(a)(1)’s circumvention
prohibitions. ER008, lines 18-19.
3. The Family Movie Act Does Not Provide an Exemption to the
DMCA Anti-Circumvention Provision
Appellant also claims that the Family Movie Act, 17 U.S.C. §110(11) (“FMA”),
is a later enacted mechanism that Congress provided to authorize circumvention of
technological measures otherwise prohibited by Section 1201. Appellant’s
Opening Brief at p. 17. The plain language of that Act merely exempts certain,
narrowly defined activity from a finding of copyright infringement. See 17 USC
110(11). That provision says nothing about exemption from the quite separate
claims of circumvention under Section 1201(a)(1). As the District Court correctly
found, the legislative history directly addressing this point demonstrates that
Congress intended that the FMA does not provide an exemption from Section 1201.
“Neither the plain language nor the legislative history of the
FMA support VidAngel’s position. In fact, the legislative history
directly contradicts VidAngel’s assertion that the FMA provides an
exemption to the anti-circumvention provisions of the DMCA.
Senator Orrin Hatch, who introduced the FMA to the U.S. Senate,
stated that the FMA ‘does not provide any exemption from the
anticircumvention provisions of section 1201 of title 17.’ 150 Cong.
Rec. S.11852-01 at S11853 (Statement of Senator Hatch) (RJN Ex. G
at 269). Senator Hatch further stated that ‘It would not be a defense
to a claim of violation of section 1201 that the circumvention is for
the purpose of engaging in the conduct covered by this new
22

exemption in section 110(11).’ Id.” ER008, lines 4-11(footnote
omitted).
As Senator Hatch’s quote, above, demonstrates, in enacting the FMA,
Congress envisioned that filtering software must be developed without
circumventing technological measures effectively preventing access to copyrighted
works. In fact, such software – allowing filtering of content without unlawful
circumvention – does exist. As the District Court noted, legitimate filtering
services exist, including ClearPlay (See https://try.clearplay.com/home/) whose
products work within the defined licensing guidelines of DVD CCA and AACS
LA to allow consumers to filter content without unlawful circumvention of CSS or
AACS Technology. ER020, lines 22-25. Appellant’s filtering service circumvents
CSS and AACS Technology and ignores licensing altogether deriving an unfair
commercial advantage versus legitimate licensed services such as ClearPlay.
If this Court were to agree with Appellant, finding that the FMA exempts
Appellant’s system from the prohibitions of Section 1201(a)(1), such a ruling
would “legitimize” known (indeed, infamous) circumvention tools and potentially
open the flood gates for such tools to become commonplace in the United States.
For instance, if the Court were to authorize Appellant’s service and its use of
circumvention tools through this proceeding, it is likely that off shore
circumvention tool manufacturers would use such a ruling to draw inferences that
their tools were authorized to assist filtering services in lawful circumvention.
23

Further, “filtering services” could be offered for a variety of purposes, enabling
makers of such tools to claim that they are offered for such services as authorized
uses exempted from Section 1201. This would be a very serious attack on the
system that Congress envisioned through the DMCA and that continues to enable
markets such as the highly successful markets for DVDs and Blu-ray Discs, as well
as the many products that consumers may use to access the content on those discs.
Such a ruling would effectively undermine the legitimate ecosystems of DVD
CCA and AACS LA by diminishing the effectiveness of TPM’s that the DMCA
was designed to protect.
C. Granting Appellant’s Appeal Would Undermine the DVD and Bluray Disc Ecosystems that Depend on CSS and AACS Technology
Both DVD CCA and AACS LA’s home entertainment ecosystems rely on
the security requirements and restrictions set forth in their respective licensing
agreements. Those license requirements are designed to ensure that content
remains encrypted unless accessed by a licensed, compliant DVD or Blu-ray Disc
player. The systems thereby protect the content of those copyright holders that
chose to utilize the respective secure ecosystems to protect their content against
unauthorized access. Each ecosystem was also set up to ensure that consumers
could readily enjoy their content by setting standard guidelines for decryption and
playback to ensure a reliable experience for consumers who purchase legitimate
DVD and Blu-ray players.
24

The effectiveness of the ecosystems relies on the various licensees’
commitment to the rules established for the DVD and Blu-ray Disc ecosystems.
The availability of an unlicensed, less stringent method of accessing the
copyrighted works undermines the legitimate ecosystem in at least three ways:
(1) the copyright holders are less likely to release their content on
DVDs and Blu-ray Discs if they are aware of the likelihood that the content
may be “ripped” by a now legitimate service from the discs that they
entrusted their content to in the market;
(2) the ecosystems’ manufacturers have less incentive to support a
more stringent licensing ecosystem and copyright protections of DVD CCA
and AACS LA if unencrypted content is made available for playback
without any licensing restrictions; and,
(3) as the District Court correctly observed, where an unlicensed
service is operated without normal licensing restrictions imposed by the
copyright owner, it interferes with the owners’ ability to control the use and
transmission of its own works (including their choice to use such measures
as CSS and AACS to protect their content). ER017.

25

D. Allowing Appellant’s System to Continue to Operate as Proposed by
Appellant Would Harm Legitimate Filtering Services in the Market
Finally, Appellant suggests circumvention is legal because there might be
“development of some system of access-control that could render filtering
technically impossible.” Appellant’s Opening brief at p. 42. CSS and AACS, as
well as AACS2 for Ultra High Definition, do not encrypt the time codes used by at
least one filtering service, ClearPlay, to filter video. Nor are Amici aware of any
access control technology that would encrypt time codes such that they could not
be used by a service like ClearPlay’s.
For these reasons, DVD CCA and AACS LA respectfully urge the Court not
to implicitly grant what would amount to an exemption from the unambiguous
anti-circumvention provisions of Section 1201, as such an exemption would
irreparably harm and disrupt the legitimate and lawful ecosystems that continue to
support copyright holders, manufacturers and consumers alike.

26

IV.

CONCLUSION.

The District Court properly concluded that under the DMCA and related
caselaw Appellant should be enjoined from using circumvention software to access
content protected by CSS and AACS and that no exemptions from liability exist
under the FMA or otherwise.
Dated: February 15, 2017

Respectfully submitted,

/s/ Dean E. Short
Dean E. Short
Short Legal Group
5000 Birch St. Suite 3000
Newport Beach, California 92660
Tel. [phone]

27

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION,
TYPEFACE REQUIREMENTS AND TYPE STYLE REQUIRMENTS
PURSUANT TO FED. R. APP. P. 32(g)(1)
Pursuant to Fed. R. App. P. 32(g)(1), I certify as follows:
1.

This Brief of Amici DVD Copy Control Association, Inc. and

Advanced Access Content System License Administrator, LLC In Support of
Plaintiffs-Appellees complies with the type-volume limitation set forth for Amicus
Curiae briefs in Fed. R. App. P. 29(a)(5) (half of limitation of Rule 32(a)(7)(B),
because this brief contains 6290 words, excluding the parts of the brief exempted
by Fed. R. App. P. 32(f); and
2.

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
2011, the word processing system used to prepare this brief, in 14 point font in
Times New Roman font.
Dated: February 15, 2017

By: /s/ Dean E. Short
Dean E. Short
Counsel for Amici
DVD Copy Control Association, Inc.
and
Advanced Access Content System
License Administrator, LLC

28

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 February 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: February 15, 2017

By: /s/ Dean E. Short
Dean E. Short
Counsel for Amici
DVD Copy Control Association, Inc.
and
Advanced Access Content System
License Administrator, LLC

29