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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`DISNEY ENTERPRISES, INC., et al.,
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`Plaintiffs,
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`v.
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`VIDANGEL, INC.,
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`Defendant.
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`Case No. CV 16-04109 AB (PLAx)
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`ORDER GRANTING PLAINTIFFS’
`MOTION FOR SUMMARY
`JUDGMENT ON LIABILITY
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`Before the Court is a Motion for Summary Judgment on Liability (“Motion,”
`
`Dkt. No. 248) filed by Plaintiffs Disney Enterprises, Inc., Lucasfilm Ltd. LLC,
`Twentieth Century Fox Film Corporation, and Warner Bros. Entertainment Inc.
`(“Plaintiffs”). Defendant VidAngel, Inc. (“VidAngel”) filed an opposition and
`Plaintiffs filed a reply. The Court heard oral argument on January 18, 2019. For the
`following reasons, the Motion is GRANTED.
`I. BACKGROUND
`This Order assumes familiarity with the Court’s Order Granting Plaintiffs’
`
`Motion for a Preliminary Injunction and the Ninth Circuit’s Opinion affirming it. See
`Disney Enterprises, Inc. v. VidAngel, Inc., 224 F. Supp. 3d 957, 964 (C.D. Cal. 2016)
`(“Disney I” or “PI Order”), aff’d, 869 F.3d 848 (9th Cir. 2017) (“Disney II).
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`Plaintiffs produce and distribute copyrighted motion pictures and television
`shows. VidAngel offers a number of Plaintiffs’ movies and television shows for
`video-on-demand streaming to its customers. VidAngel’s service allows customers to
`apply filters to the works so that objectionable content—such as nudity or violence—
`is omitted, resulting a filtered stream. At issue in this action is VidAngel’s streaming
`service based on DVDs and Blu-ray discs (“discs”). This service is described in detail
`in the PI Order, and, in relevant part, as follows by the Ninth Circuit1:
`[VidAngel] purchases multiple authorized [discs] for each title it
`offers . . . VidAngel uses AnyDVD HD, a software program, to decrypt
`one disc for each title, removing the CSS, AACS, and BD+ TPMs on the
`disc, and then uploads the digital copy to a computer.[] Or, to use
`VidAngel’s terminology, the “[m]ovie is ripped from Blu–Ray to the
`gold master file.” After decryption, VidAngel creates “intermediate”
`files, converting them to HTTP Live Streaming format and breaking
`them into segments that can be tagged for over 80 categories of
`inappropriate content. Once tagged, the segments are encrypted and
`stored in cloud servers.
`Customers “purchase” a specific physical disc from VidAngel’s
`inventory for $20. The selected disc is removed from VidAngel’s
`inventory and “ownership” is transferred to the customer's unique user
`ID. However, VidAngel retains possession of the physical disc “on behalf
`of the purchasers,” with the exception of the isolated cases in which the
`consumer asks for the disc. To date, VidAngel has shipped only four
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`1 VidAngel does not materially or genuinely dispute this description of its service.
`VidAngel’s submitted a declaration from its VP of research and innovation
`elaborating on its process, see McDonald Decl. (Dkt. Nol 256), but this additional
`information does not materially challenge the Ninth Circuit’s description. To the
`extent McDonald’s declaration purports to dispute whether VidAngel copies the
`Works, that dispute is not genuine for the reasons discussed herein. As such, the Court
`will treat the facts stated in the Ninth Circuit’s description as undisputed.
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`2.
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`discs to purchasers.
`After purchasing a disc, a customer selects at least one type of
`objectionable content to be filtered out of the work. VidAngel then
`streams the filtered work to that customer on “any VidAngel-supported
`device, including Roku, Apple TV, Smart TV, Amazon Fire TV,
`Android, Chromecast, iPad/iPhone and desktop or laptop computers.”
`The work is streamed from the filtered segments stored in cloud servers,
`not from the original discs. Filtered visual segments are “skipped and
`never streamed to the user.” If the customer desires that only audio
`content be filtered, VidAngel creates and streams an altered segment that
`mutes the audio content while leaving the visual content unchanged.
`VidAngel discards the filtered segments after the customer views them.
`After viewing the work, a customer can sell the disc “back to
`VidAngel for a partial credit of the $20 purchase price,” less $1 per night
`for standard definition purchases or $2 per night for high-definition
`purchases. VidAngel accordingly markets itself as a $1 streaming
`service. After a disc is sold back to VidAngel, the customer's access to
`that title is terminated.[] Virtually all (99.6%) of VidAngel’s customers
`sell back their titles, on average within five hours, and VidAngel’s discs
`are “re-sold and streamed to a new customer an average of 16 times each
`in the first four weeks” of a title’s release.
`Disney II, 869 F.3d at 853–54.
`Plaintiffs sued VidAngel for copyright infringement, contending that
`VidAngel’s streaming service copies and publicly performs their copyrighted works
`without authorization. See First Am. Compl (“FAC,” Dkt. No. 64-72.)2 Plaintiffs also
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`2 When the Court entered its preliminary injunction order, the original Complaint was
`operative. However, the FAC simply added additional plaintiffs. The conduct alleged
`in both complaints is the same.
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`assert that VidAngel violates the Digital Millennium Copyright Act, 17 U.S.C. §§
`1201, et seq., by circumventing technological protection measures (“TPM”) on discs
`that contain Plaintiffs’ works. FAC ¶¶ 73-81.
`In the PI Order, the Court found that Plaintiffs showed a likelihood of success
`on the merits of their claims. First, the Court found that VidAngel circumvented
`Plaintiffs’ TPMs by using software to allow read-access to the discs and upload files
`onto a computer, an unlawful practice referred to as “space-shifting.” The Court also
`rejected VidAngel’s defense under the Family Movie Act of 2005 (“FMA”), 17
`U.S.C. § 110(11), finding that the FMA does not establish an exemption to the
`DMCA’s anti-circumvention provision. Second, the Court found that VidAngel
`violated Plaintiffs’ exclusive rights to copy and publicly perform their works, and
`rejected VidAngel’s defenses, holding that the FMA did not apply because
`VidAngel’s filtered transmissions were not from a “authorized copies” of the works as
`required for protection under the FMA, and that VidAngel was not likely to succeed
`on the merits of its fair use defense. The Ninth Circuit affirmed.
`Plaintiffs now move for summary judgment on the issue of liability as to four
`works that they say are representative of all works in issue. They argue that this Court
`and the Ninth Circuit already determined that Plaintiffs established at least a prima
`facie case of liability and that VidAngel’s defenses were without merit, and they
`contend that VidAngel simply cannot raise triable issues to overcome those rulings.
`VidAngel responds that new facts developed since the preliminary injunction
`litigation give rise to triable issues and preclude summary judgment.
`Upon review of the record, the Court finds that there are no triable issues of
`material fact because VidAngel either admitted all of the material facts, or its
`purported factual disputes are not genuine. In addition, VidAngel cannot avoid the
`questions of law that this Court and the Ninth Circuit resolved against it. Thus,
`Plaintiffs are entitled to summary adjudication that VidAngel is liable for copyright
`infringement and for violating the DMCA.
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`4.
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`II. UNDISPUTED FACTS
`The undisputed material facts, taken from Plaintiffs’ Separate Statement and
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`VidAngel’s Response thereto (“SUF,” Dkt. No. 254), are as follows.3
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`Plaintiffs have valid copyright registrations, registered within five years of first
`publication, for each of the four representative works (Frozen, Star Wars: The Force
`Awakens, Ice Age, and Harry Potter and the Sorcerer’s Stone) (“Works”). SUF 1.
`Plaintiffs have not authorized VidAngel to copy or stream (or otherwise exploit)
`their Works or to bypass or remove (or otherwise circumvent) the technological
`protection measures (“TPMs”) that control access to their copyrighted works on
`DVDs or Blu-ray discs (“Discs”). SUF 2.
`VidAngel has offered each of the Works on its service. SUF 3.
`Plaintiffs use CSS, AACS and BD+ to control access to their copyrighted works
`on Discs. SUF 4.
`CSS, AACS and BD+ are TPMs that control access to copyrighted works on
`Discs. SUF 5.
`VidAngel circumvents Plaintiffs’ TPMs by using “a commercially available
`software program to automatically allow read-access for the purpose of mounting the
`DVD [and Blu-ray] files for uploading onto a computer, in the process removing
`restrictions on DVD [and Blu-ray] encryption.” SUF 6.
`VidAngel copies the underlying digital files onto its computers. SUF 7; see also
`McDonald Decl. ¶¶ 13, 18, 19, 21, 22, 23, 25.
`VidAngel stores “master” ripped digital copies of Plaintiffs’ works to servers,
`from which it streams filtered content to its customers. SUF 8.
`VidAngel’s purpose is to bring “popular movies and shows” to viewers who
`may want to watch that work without certain “objectionable” content. SUF 9.
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`3 VidAngel offered 30 additional facts but they are immaterial, argumentative,
`conclusory, or not supported by the evidence, and thus do not preclude summary
`judgment in Plaintiffs’ favor.
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`VidAngel’s service is commercial. SUF 10.
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`III. LEGAL STANDARD
`A motion for summary judgment must be granted when “the pleadings, the
`discovery and disclosure materials on file, and any affidavits show that there is no
`genuine issue as to any material fact and that the movant is entitled to judgment as a
`matter of law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
`247-48 (1986). The moving party bears the initial burden of identifying the elements
`of the claim or defense and evidence that it believes demonstrates the absence of an
`issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the
`nonmoving party will have the burden of proof at trial, the movant can prevail merely
`by pointing out that there is an absence of evidence to support the nonmoving party’s
`case. Id. The nonmoving party then “must set forth specific facts showing that there is
`a genuine issue for trial.” Anderson, 477 U.S. at 248.
`“Where the record taken as a whole could not lead a rational trier of fact to find
`for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus.
`Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court must draw all
`reasonable inferences in the nonmoving party’s favor. In re Oracle Corp. Sec. Litig.,
`627 F.3d 376, 387 (9th Cir. 2010) (citing Anderson, 477 U.S. at 255). Nevertheless,
`inferences are not drawn out of thin air, and it is the nonmoving party’s obligation to
`produce a factual predicate from which the inference may be drawn. Richards v.
`Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d
`898 (9th Cir. 1987). “[M]ere disagreement or the bald assertion that a genuine issue of
`material fact exists” does not preclude summary judgment. Harper v. Wallingford,
`877 F.2d 728, 731 (9th Cir. 1989).
`IV. DISCUSSION
`A. VidAngel Violated the DMCA’s Anti-Circumvention Provision.
`Section 1201(a)(1)(A) of the DMCA provides that “[n]o person shall
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`circumvent a technological measure that effectively controls access to a work
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`6.
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`protected under this title.” A technological measure effectively controls access to a
`copyrighted work if “the measure, in the ordinary course of its operation, requires the
`application of information, or a process or a treatment, with the authority of the
`copyright owner, to gain access to the work.” 17 U.S.C. § 1201(a)(3)(B).
`To prevail on their circumvention claim, Plaintiffs must prove that (1) they
`employ “technological measure[s] that effectively control[] access to a work
`protected” by copyright; and (2) VidAngel “circumvent[s]” those measures. 17 U.S.C.
`§ 1201(a)(1)(A).
`VidAngel admits that the protection measures Plaintiffs use—CSS, AACS and
`BD+—“are encryption access controls” under the DMCA. VidAngel also admits that
`it circumvents Plaintiffs’ TPMs by “‘us[ing] software to decrypt’” those controls.
`These facts were established at the time of the PI Order and the appeal thereof, and
`VidAngel expressly admits them in its response to Plaintiffs’ SUF. See SUF ¶¶ 4-6. It
`is therefore undisputed that VidAngel has violated the DMCA.
`VidAngel advances several arguments to evade liability, but they are
`unavailing. First, VidAngel argues that because it uses third-party decryption
`software, rather than writing its own, it is like any other person who legitimately
`views a work using an authorized disc player, and that the third-party is responsible
`for deciding to use unauthorized decryption. But these arguments were previously
`rejected. VidAngel does not claim that the third-party software that it uses (AnyDVD
`HD) to circumvent Plaintiffs’ TPMs is authorized by Plaintiffs or the licensing
`organizations of CSS, AACS and BD+ to access the works. Thus, the Ninth Circuit’s
`observation that VidAngel “was never given the ‘keys’ to the discs’ contents—only
`authorized players get those keys” remains undisturbed. Disney II, 869 F.3d at 864–
`65. Accordingly, “VidAngel’s decision to use other software to decrypt the TPMs to
`obtain a digital copy of the disc’s movie thus is exactly like ‘breaking into a locked
`room in order to obtain a copy of a [movie].’ [] Nothing in the legislative history
`suggests that VidAngel did not circumvent an access control simply because there are
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`authorized ways to access the Studios’ works.” Id. VidAngel also quibbles with
`Plaintiffs’ previous characterization of its conduct as “remov[ing]” the encryption,
`when in fact the TPMs remain in place and are never removed in VidAngel’s process.
`See Opp’n 8:5-9. First, VidAngel itself has described its process as “removing”
`encryption. See, e.g., Am. Counter-Compl. (Dkt. No. 77) ¶ 120(b) (“VidAngel uses a
`commercially available software program to automatically allow read-access for the
`purpose of mounting the DVD files for uploading onto a computer, in the process
`removing restrictions on DVD encryption”) (emphasis added). It appears that
`VidAngel is actually saying it only temporarily removes the encryption, and that the
`contents of the discs are not changed, but this is a distinction without a difference
`under the DMCA. The DMCA prohibits “circumvention” of TPMs, conduct that
`VidAngel expressly admits it engages in. See Response to SUF 6 (responding
`“undisputed” to fact that “VidAngel circumvents Plaintiffs’ TPMs . . .”). Plaintiffs
`have therefore established their prima facie case that VidAngel has circumvented their
`TPMs in violation of the DMCA.
`1. VidAngel Has Not Raised a Triable Issue as to Its Fair Use and First
`Amendment Defenses to Its DMCA Violations.
`VidAngel asserts a fair use defense to liability for circumvention, but that
`defense does not apply to this DMCA violation. The fair use defense, 17 U.S.C. § 107,
`provides that certain uses of a work are not copyright infringement in violation of §
`106 and § 106A. The DMCA’s prohibition of circumvention is in § 1201. Therefore,
`circumvention is not among the violations to which the fair use defense applies. This
`makes sense, as Ҥ 1201(a) creates a new anti-circumvention right distinct from the
`traditional exclusive rights of a copyright owner.” MDY Indus., LLC v. Blizzard
`Entm’t, Inc., 629 F.3d 928, 950 (9th Cir. 2010). The DMCA only “targets the
`circumvention of digital walls guarding copyrighted material (and trafficking in
`circumvention tools), but does not concern itself with the use of those materials after
`circumvention has occurred.” Universal City Studios, Inc. v. Corley, 273 F.3d 429,
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`8.
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`443 (2d Cir. 2001). Thus, neither the text of § 107 nor the nature of the conduct
`targeted by the DMCA (circumvention) supports applying the fair use defense to a
`DMCA violation.
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`VidAngel also argues that its circumvention conduct is protected by the First
`Amendment because it circumvents in order to pursue its expressive interests and to
`build a community of like-minded subscribers. See Opp’n 10:5-11:1. VidAngel’s
`theory is poorly developed and depends on a string of attenuated propositions. While
`VidAngel is correct that its “computer code, and computer programs constructed from
`code can merit First Amendment protection,” Corley, 273 F.3d at 449, it does not
`follow that everything VidAngel does with that code is also protected. Section 1201(a)
`regulates conduct—the circumvention of TPMs—and not expression—the use to
`which a person puts TPM-protected works—so § 1201 does not appear to tread on
`expressive or associative rights. Finally, VidAngel argues that the “basic problem”
`with § 1201 in the First Amendment context is that it “prohibits transformation of
`information from that property [the discs VidAngel lawfully acquired] into subsequent
`speech and new creativity, analysis, and cultural expression.” Opp’n 10:24-27. But §
`1201(a) does none of those things; it has nothing to say about the use (transformative
`or otherwise) to which a person puts TPM-protected materials, but only regulates
`circumvention of TPMs. Neither the constitution nor fair use “guarantee [] access to
`copyrighted material in order to copy it by the fair user’s preferred technique or in the
`format of the original.” Corley, 273 F.3d at 459 (finding the DMCA’s antitrafficking
`provisions don’t violate the constitution or “impose even an arguable limitation” on
`fair use because a user is not entitled to “copy . . . by the fair user’s preferred
`technique.”). Accordingly, VidAngel’s First Amendment defense has no merit.
`Because Plaintiffs have shown that there is no triable issue as to its claim
`against VidAngel for circumvention in violation of the DMCA, and because VidAngel
`has not raised a triable issue as to any defense, Plaintiffs are entitled to summary
`adjudication of liability on this claim.
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`B. VidAngel Is Liable For Copyright Infringement.
`To prevail on their copyright infringement claim, Plaintiffs must establish that
`(1) they own or control the exclusive rights at issue; and (2) VidAngel infringed at
`least one such exclusive right. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004,
`1013 (9th Cir. 2001). Plaintiffs assert that VidAngel has infringed two of its exclusive
`rights: the right “to reproduce the [Works] in copies,” and the right “to perform the
`[Works] publicly.” See 17 U.S.C. § 106(1), (4). It is undisputed that Plaintiffs own
`valid copyrights in the Works, SUF 1, so they have established the first element.
`VidAngel contends, however, that Plaintiffs cannot establish he second element
`because (1) it has not infringed on Plaintiffs’ rights (a) to copy or (b) to publicly
`perform the Works; (2) its use of the Works is protected by the Family Movie Act;
`and (3) its use of the Works is fair use.
`1. VidAngel Copies Plaintiffs’ Works.
`The Copyright Act grants Plaintiffs the exclusive right “to reproduce the
`[Works] in copies.” 17 U.S.C. § 106(1). The Act defines “copies” as “material objects
`. . . in which a work is fixed by any method now known or later developed, and from
`which the work can be perceived, reproduced, or otherwise communicated, either
`directly or with the aid of a machine or device.” 17 U.S.C. § 101. At the preliminary
`injunction stage, both this Court and the Ninth Circuit found that VidAngel copies
`works from the discs onto its computers and servers. Now, the Court finds that it is
`undisputed that VidAngel copied the Works. VidAngel argues otherwise, but it fails to
`raise any genuine dispute.
`First, earlier in the litigation VidAngel repeatedly admitted that it “makes a
`copy of” or that it “copies” works. For example, VidAngel’s founder, Neal Harmon,
`testified that VidAngel employees “make a copy” of the files from the disc, which
`VidAngel has called “intermediate copies.” Harmon Depo. (Ehler Decl. Ex. EE, Dkt.
`No. 30-31) 58:1-4. VidAngel’s general counsel stated that VidAngel “made temporary
`copies of each movie to permit their contents to be tagged . . . and had then uploaded
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`encrypted copies of the tagged contents into the Cloud.” Quinto Decl. (Dkt. No. 187-
`1) ¶ 2. And before the Ninth Circuit, VidAngel “concede[d] that it copies the Studios’
`works from discs onto a computer.” Disney II, 869 F.3d at 856.
`Second, in response to the undisputed fact that it copies, VidAngel strains to
`avoid using that the word “copy” in describing it filtering process, but describes
`conduct that amounts to copying, and ultimately ends up using the word “copy.”
`Specifically, VidAngel asserts that it “used a software program to extract the
`subtitle/caption data files and then created temporary (‘locally cached’) Matroska files
`of the feature films” and “stored a single encrypted copy at each of four bitrates in the
`Cloud.” SUF 7 (emphasis added). See also VidAngel Am. Counter-Compl. (Dkt. No.,
`77) ¶ 120(c). Thus, VidAngel even now admits that it extracts data files from which is
`creates “locally cached” files, i.e., copies, and then stores a “single encrypted copy.”
`This is copying. See MAI Sys. Corp. v. Peak Comput., Inc., 991 F.2d 511, 518 (9th
`Cir. 1993) (“transferring digital files ‘from a permanent storage device to a
`computer’s RAM’ is ‘copying’ under § 106”).
`Third, VidAngel argues that new facts show that it does not copy any of the
`pre-existing files on the discs, but that it uses a player to “view the digital data on the
`disc, and then rendered and saved a newly created digital file on its own storage
`location.” Opp’n 11:17-19. VidAngel argues that this process creates a “separate and
`new rendition, unique and distinct from the digital files on the” discs. Opp’n 11:19-21.
`Although VidAngel uses the words “render” and “rendition” instead of “copy,” the
`conduct is describes is in fact copying the Works: the “rendition” of the Works saved
`on VidAngel’s “storage location” (i.e., a computer) is a “material object[] . . . in which
`a work is fixed . . . and from which the work can be perceived. . . .” 17 U.S.C. § 101.
`The declaration of VidAngel’s senior engineer Jarom McDonald similarly tries to
`shield VidAngel from this conclusion by using the words “render” and “rendition”
`instead of “copy.” See Jarom McDonald Decl. (Dkt. No. 256). But what McDonald
`describes is copying. For example, McDonald says that a VidAngel employee uses a
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`player to access the disc’s data (id. ¶ 13), and from that access “construct[ed] audio
`and visual streams into a new single digital rendition of the motion picture” and stored
`it onto its “Filtering Preparation Workstation (‘FPW’), which is a computer located in
`VidAngel’s secure headquarters facility.” Id. ¶18. Again, this describes a process by
`which VidAngel copies the Works. Indeed, in the very next paragraph, even
`McDonald can’t avoid describing this as resulting in a copy: “By this process,
`VidAngel obtained ownership of an authorized copy of the motion picture at issue,
`and from this authorized copy, created its digital filtering files and all subsequent
`processes.” Id. ¶ 19 (emphasis added). McDonald describes several other elements of
`its filtering process, and they each involve copying the Works:
`• VidAngel’s employee would “extract, where present, subtitle files from the
`disc, and those files (the master rendition of the video and audio streams, along
`with the digital file of the subtitles) are jointly referred to as pre-filter files (‘PF
`files’).” Id. ¶ 21.
`• The master rendition was generally remuxed [sic] (repackaged) during the
`process mentioned above, in the Matroska container format. . .” Id. ¶ 22.
`• “VidAngel would then upload these pre-filter files to a secure storage bucket on
`a cloud storage service (‘CSS’). . .” Id. ¶ 23.
`• To prepare the PF files for tagging and filtering VidAngel, would “creat[e],
`from our master rendition, a low-fidelity [] digitally ready performance of the
`motion picture [and create] four Transport Stream files (‘TS files’) that were
`each a separate version of the master rendition.” Id. ¶ 25.
`Each of these steps involves “fixing” the work in “material objects” “from
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`which the work can be perceived, reproduced, or otherwise communicated, either
`directly or with the aid of a machine or device.” 17 U.S.C. § 101. VidAngel therefore
`copied the Works. In sum, VidAngel has not presented any new material facts;
`instead, it has attempted to use new words—“render” and “rendition”—to describe the
`same conduct—copying. This does not raise a triable issue as to whether VidAngel
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`copied the Works, and the Court finds that there is no dispute that it did.
`2. VidAngel Violated Plaintiffs’ Public Performance Rights.
`The Copyright Act grants Plaintiffs the exclusive right “to perform the [Works]
`publicly.” See 17 U.S.C. § 106(4). To perform a work “publicly” means, as relevant,
`“to transmit or otherwise communicate a performance . . . of the work . . . to the
`public, by means of any device or process.” 17 U.S.C. § 101 (definition of public
`performance). At the preliminary injunction stage, this Court found that when
`VidAngel streams (i.e., transmits) the Works to its customers, it performs them to
`members of the public. The Court now finds that it is undisputed that VidAngel
`publicly performs the Works. Again, VidAngel argues otherwise, but it fails to raise
`any genuine dispute.
`At the preliminary injunction stage, VidAngel argued that its streaming service
`is just a private performance because its customers own the discs and therefore those
`customers have the right to have the content of those discs streamed to them. The
`Court rejected this argument on the ground that VidAngel was streaming from a
`master copy from its server, not from a disc actually owned by the customer.
`VidAngel again raises this argument, and the Court again rejects it, as it has presented
`no evidence to establish its claim. To the contrary, the McDonald Declaration
`establishes that VidAngel is not streaming directly from any discs, but instead from a
`master copy it has created and stored on a server. See McDonald Decl. ¶¶ 13-25.
`VidAngel makes several convoluted arguments that all turn on its claimed
`distinction between a copy and a rendition, but as discussed above, the Court rejects
`this premise and it remains undisputed that VidAngel streams the Works from a
`master copy it stores on a server. VidAngel also argues that its streaming service is
`similar to the way any DVD player works, because in neither case is the viewer
`viewing the actual digital files, but instead a player assembles the files in a way that
`enables the work they store to be performed. The gravaman of this argument is not
`clear, but in any case, it does not raise a triable issue. First, it is a strawman argument:
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`of course a work stored to a disc cannot be perceived by “viewing” the disc’s files
`directly; rather, a device must process the disc’s files to result in a viewable
`performance. And second, that VidAngel’s filtering process and ordinary disc players
`both, at some point, use a player to assemble those files does not detract from the fact
`that VidAngel is also making unauthorized master copies of those Works from which
`it then streams its filtered versions to customers. VidAngel has not pointed to any
`evidence that raises a triable issue of fact as to whether it infringes Plaintiffs’ public
`performance rights, and the Court finds that it did.
`3. VidAngel’s Infringement Is Not Protected by the Family Movie Act.
`“The FMA was designed to allow consumers to skip objectionable audio and
`video content in motion pictures without committing copyright infringement.” Disney
`II, 869 F.3d at 857. To this end, the FMA establishes two exemptions from copyright
`infringement: (1) for “the making imperceptible . . . of limited portions . . . of a
`motion picture . . . for private home viewing, from an authorized copy of the motion
`picture,” and (2) for “the creation or provision of a computer program or technology
`that enables for such making imperceptible . . . if no fixed copy of the altered version
`of the motion picture if created by such computer program or technology.” This Court
`previously found that VidAngel’s conduct was not within the scope of FMA
`protection because “the statute clearly requires that a performance of transmission of
`filtered content must come from an ‘authorized copy’ of the motion picture . . . [but]
`[the content] that VidAngel streams to its customers is not from an authorized copy.
`VidAngel streams from a digital copy that it acquires by circumventing [TPMs] on
`Plaintiff’s DVDs in violation of § 1201(a) of the DMCA.” Disney I, 224 F.Supp3d at
`972. The Ninth Circuit affirmed, holding that “VidAngel does not stream from an
`authorized copy of the Studios’ motion pictures; it streams from the ‘master file’ copy
`it created by ‘ripping the movies from the discs after circumventing their TPPMs.”
`Disney II, 869 F.3d at 860.
`VidAngel again argues that new facts compel a different outcome, but again, it
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`presents nothing new. VidAngel argues that its “master file” is created directly from
`an authorized copy—a disc—so therefore its service is protected. But the Ninth
`Circuit rejected this argument, stating that “virtually all piracy of movies originates in
`some way from a legitimate copy,” and that VidAngel streams not from an authorized
`copy, but “from the ‘master file’ it created by ‘ripping’ the movies from discs after
`circumventing their TPMs.” Disney II, 869 FG.3d at 860. VidAngel does not and
`cannot deny that it streams from its “ripped” master files. Accordingly, this ruling
`forecloses VidAngel’s defense under the FMA, and VidAngel has failed to raise a
`triable issue as to this defense.4
`4. VidAngel’s Fair Use Defense Of Its Infringement Fails.
`VidAngel argues that it is making “fair use” of the copyrighted works under 17
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`U.S.C. § 107, and is therefore not infringing them. Section 107 reads, in pertinent part,
`“the fair use of a copyrighted work, including such use by reproduction in copies or
`phonorecords or by any other means specified by that section, for purposes such as
`criticism, comment, news reporting, teaching (including multiple copies for classroom
`use), scholarship, or research, is not an infringement of a copyright.” 17 U.S.C. § 107.
`Four factors govern whether a use of a copyrighted work is fair use:
`(1) the purpose and character of the use, including whether such use is of