Attorneys for the VidAngel filtering service urged a three-judge panel on Thursday to lift an injunction that has kept the service off-line for the last five months.
In December, U.S. District Judge Andre Birotte granted the injunction at the request of Disney, 20th Century Fox, and Warner Bros., who have argued that VidAngel is pirating their content. VidAngel buys DVDs of major studio releases and then “rents” them online to its customers, with offensive language and sexual content edited out. Though it does so without a license, VidAngel contends that its service does not violate copyright law, and is expressly permitted by the federal Family Movie Act.
In the 40-minute argument at the 9th Circuit Court of Appeal in Pasadena, Calif., the judges did not seem sympathetic with VidAngel’s position. As the judges called the VidAngel case, having just dealt with complex arguments over a police search, Judge Carlos Bea turned to his colleague, Judge Andrew Hurwitz, and audibly whispered: “I think this one’s a lot easier.”
Hurwitz responded: “Me too.”
This was not taken as an encouraging sign for VidAngel. The company’s attorney, Peter Stris, faced pointed questioning from Hurwitz about VidAngel’s practice of decrypting DVDs in order to filter out offensive content. At one point, Hurwitz referred to VidAngel’s use of “what appears to be illegal software.”
Stris argued that VidAngel is tantamount to Redbox DVD rentals, and argued that its streaming of filtered movies qualifies as private home viewing, and is not a public performance of the films.
The studios retained Donald Verrilli, the former solicitor general most famous his Supreme Court arguments on behalf of gay marriage and the Affordable Care Act. Verrilli, now a partner at Munger, Tolles & Olson, was blistering in his attack on VidAngel.
“It’s an unlicensed on-demand streaming service that lacks any legal justification and is totally unfair to us and to licensed streaming services,” he argued.
Verrilli noted that VidAngel advertised that it had movies that were unavailable on Netflix, making it clear that it was competing unlawfully with licensed services.
“They’re saying, ‘If we filter, we can stream without a license,'” Verrilli said. To interpret the law that way, he said, “would effect a massive transfer of economic value from copyright owners who made the works to somebody who streams without a license.”
Hurwitz’s questions of Verrilli were few and generally deferential.
Following the arguments, VidAngel CEO Neal Harmon praised Stris for doing a “masterful job” of arguing for the injunction to be overturned.
“Regardless of the outcome of this stage, we believe, when all is said and done, that the Family Movie Act of 2005 will prevail and VidAngel will be able to provide filtering to customers on modern streaming devices,” Harmon said in a statement.