About 17 of my friends are all spun up about a new controversy brewing about a service called VidAngel, a(nother) Utah-based video filtering company that promises to help you enjoy any film you want out Hollywood without offending any delicate sensibilities.  Their angle on the well-worn debacle?  They bring their flavor of filtering into the realm of streaming video, something not yet done by any other company.  Because there is no technically feasible approach to doing this without violating copyright, they are, in fact, getting sued by a consortium of content owners for their methods — and here’s my take on it.

Before I begin, though, I will say that I’m not going to attempt to take on the morality of this subject.  I don’t really care if you like or dislike filtering services or if you think they should exist or shouldn’t.  Nor do I recommend VidAngel or not recommend it.**  I intend to really just dissect the legality of the situation, strictly from an uninformed, lay-person-playing-lawyer perspective.  I could be right, I could be wrong, and this is a blog so it’s just my opinion any way.  You are entitled to yours as well, and if it’s different than mine — congratulations for rubbing two brain cells together to make fire, young caveperson.

Disclaimer in hand, is what VidAngel doing illegal?

They say no.  (If you want their opinion on what they are doing, you can read this stuff, but you don’t have to if you don’t want to.)

To sum up their claim, they claim their are providing a service to their customers whereby they acquire a physical copy of a movie from a retail source at retail prices on behalf of you, their customer.  They then wave a magical technology wand and open a wormhole through the Internet from their datacenters into your household, where they play you that movie with their filters in place.  Since you “own” it, you can keep the movie forever (they charged you $20 for it) in some digital locker (with the correlating analog version in cold storage somewhere), or you can choose to sell it back to them and get some credit on your account, which you can then use to buy other filtered movies from them.  (What they really intend for you to do.)

Seems legitimate, no?  Here’s why it’s not:

When you buy a video disc or VHS tape or any other copyrighted film from a retail store, you are actually NOT buying the film itself.  You are buying a license to view that film a specific setting.  This is made crystal clear in those ominous FBI warnings that are displayed at the beginning of all home videos.  The work of art itself — the content — actually never belongs to you.  Yes, you did buy and you do own a piece of physical media that was made to transmit the film, but what you purchased for $19.95 was the license to view the video in the comfort and privacy of your own home.

This is the fundamental claim that owners of copyrighted material have over the art they sell; it is never “yours” — it’s always theirs — and they are just giving you a temporary license to watch it.  This is why it’s technically illegal to show a home movie in a public venue, like a park or baseball stadium, even when you have legitimately purchased a copy — it was not licensed for public performance.  Now, jack-booted thugs will not come crashing down your fence if you choose to have a backyard showing of The Sandlot to kick of little league season, but if your local little league chooses to show it before the first game of the season, and sells tickets and refreshments, you’d better believe their going to have a Disney lawyer sending them love-letters in due course.

And what about modifying a legally purchased copy of a movie?  That is also illegal — though illegal is kind of a strong word.  It’s a violation of the owner’s copyright.  They made a thing, which they then licensed to you to show your family in your home.  They did not give you, as part of that license, cart blanche to modify the original source material they sold you.  Pulling out the VHS tape, razor blading out a few minutes, and scotch taping it together is — technically — illegal — because you’ve altered the material and it can never be viewed again the way that it was licensed to you and sold to you.  Also, if you ever re-sell your license (copy) of the movie, it is forever altered and now they are N+1 divergent copies of the original source material on the market.  (You Mormons out there should now go ponder on the moral side of the question given what I’ve said here and our understanding of the ‘evil’ people who altered sacred texts  over the course of centuries.  They were just “filtered copies” they made for their own use, right?)

Now let’s apply our new understanding of licensed home viewing of films to the VidAngel service.

What VidAngel says they are doing and what they are actually doing are not the same thing.  If every time an order came in, they rushed down to WalMart, purchased the DVD you wanted off the shelf, stuck it in a magical internet-connected DVD player that transmitted the signal via closed-loop broadcast to your computer in your home, with some carbon-based life form sitting there with a remote skipping and muting parts of the movie you told them you might not like — then perhaps it would be legitimate.  But that’s not what they are doing, and their “model” is super-flawed.  (P.S. they know it too, which is why in their defense they call out that this was the 4th thing they tried when they were looking for a way to provide filtered, streaming media)

What they are really doing is pre-buying a BUNCH of copies of the same movie to build an inventory of movies that can be “sold” to a customer at one time.  Then they illegally decrypt one copy of the movie off of the disc.  Then they edit it for content and create special, digitized copy of this edited version and store it in their cloud.  (Presumably, they are also creating multiple copies with different variations of things cut out of them, giving their customer maximum flexibility in what they are willing to see and hear from a movie.)  Then, on demand from a customer, they stream you this illegally created copy of the movie you requested.

So there are a few ways this is illegal:

  1. They decrypt the source material.  Breaking encryption is illegal. (unless you are the NSA or CIA)  Sorry, charlie.  Slam dunk on that one alone.
  2. They alter the work and store altered copies of that copyrighted work for mass distribution.  This breaks the fundamental rule about not altering the source content you paid a license to view in your home.  Yes, you have the right to start, stop, mute, rewind, fast forward, or whatever you want in the comfort of your own home, but that license you purchased did not give you the right to permanently alter the content of the performance, nor does this company have a right to do it for you. ***
  3. They do not properly transfer the license to their customer in an established, conventional way.  Their claim is that they act as an intermediary, picking up a DVD at the store for you and then streaming it to you at your convenience.  However, they do not transfer the purchased, retail license to view the content via any regular, expected, or established means of retail transfer.  In real life, this looks like garage sales and flea markets and $5 DVD bins at Walmart.  One purchases and transmits the original source material between parties in the original way it was purchased, not an impermanent, copied, transiently transmitted set of bits that represent the content that was on the DVD/media purchased.  You don’t buy a DVD and then copy it to a VHS cassette, sell the VHS cassette and burn the DVD and claim that you transferred the license.  Nope, you created an illegal copy, dude.  Game over.

I don’t think they have a leg to stand on in this lawsuit, and I expect it to not drag on for too long.

And now I will say something they should start looking at… automated, cloud-connected eye covers and earplugs.  You can program the device to the time code of whatever movie you are watching and when something objectionable happens, it can clamp down on your head like the Iron Maiden so you don’t hear or see anything you don’t want to.  It will be all the rage, and that is a device that Hollywood can’t touch.

** What about Clearplay?  So far, in my estimation, Clearplay is actually the only legitimate technology for filtering movies.  I won’t attempt to explain the details here, but if you want a legal solution that will stick around, my money is on that approach.

*** Ok, so since I’ve never used it, I’m not quite sure on this one.  I’m also imagining they are storing and streaming complete copies of the movies and allowing a specially created video player (in the user’s computer or other device) to automatically mute or skip what they have chosen to filter based on a ‘script’ of time codes that do certain actions at certain times.  If that’s the case, then #2 doesn’t apply anymore.  But if they are doing #2 it’s definitely more heinous than #1 and #3.  If I were building a service like this, doing #2 is really a bad idea from both a legal and operational, so maybe they don’t actually do it.  Again — I dont’ know anything, just a bunch of blather from an uninformed lay person.  If you know more, feel free to correct the record in the comments.

Similar Posts:

 

4 Responses to VidAngel or VidDevil?

  1. Dave says:

    Except the arguments don’t really hold up.
    1) Decryption – Happens every time a DVD is played. Your DVD player or VCR decrypts a signal into one your system can use. Can you find me a solid definition of what is defined as decryption, where it is illegal, and how VidAngel is violating it.
    2) Completely false as per the The Family Home Movie act. The act “Exempts from copyright and trademark infringement, under certain circumstances: (1) making limited portions of the audio or video content of a motion picture for private home viewing imperceptible; or (2) the creation of technology that enables such editing” – Congress.gov. We can also ask what is the FHMA trying to make legal, and how does VidAngel fall short.

    3) Okay, I will bite. Where are the court cases establishing that things are only legal if done in the standard way? I feel like you put the most text on this argument because you had the least evidence for it.

    Really, interpretation of the law is a task for the courts. I am anxious to see how they interpret copyright law, fair use, computer concepts, and the Family Home Movie Act.

  2. Matt says:

    Dave, to decrypt a DVD you must have a license from the DVDCCA. When you put a DVD into a Sony DVD player, it can be legally decrypted because Sony has a license from DVDCCA. When you put a DVD into a Samsung player, it can be legally decrypted because Samsung has a license from DVDCCA, etc. All these legitimate DVD players have licenses to decrypt DVD movies. (see DVDCCA.org)

    VidAngel does NOT have a license from DVDCCA. They are therefore unauthorized to decrypt DVDs. If a company decrypts a DVD, but does not have a DVDCCA license it is called “circumventing access protection” and is illegal according to the Digital Millennium Copyright Act (see https://www.law.cornell.edu/uscode/text/17/1201)

  3. Nate says:

    This statement is conjecture said in a factual tone. It is misleading and false. I personally know the founder of VidAngel and they specifically designed their software with this restriction in mind.

    “Then they illegally decrypt one copy of the movie off of the disc. Then they edit it for content and create special, digitized copy of this edited version and store it in their cloud. (Presumably, they are also creating multiple copies with different variations of things cut out of them, giving their customer maximum flexibility in what they are willing to see and hear from a movie.) Then, on demand from a customer, they stream you this illegally created copy of the movie you requested.”

    Not only is this not the way they edit content, it isn’t even the logical way any computer programmer in the world would edit content. The way they do it is they way you mention in *** that is, they save the original, unedited movie somewhere in the cloud. The customizable filters would be attached to timestamps and functions. For example, if you don’t want to see any nudity, you select that option and then the program starts playing the original, unedited movie, BUT the player (not the movie) knows that when it gets to time 1:13:05 it needs to immediately fast forward to 1:14:15. Nudity skipped, original movie preserved. No permanent edits made.

    As for the idea that they only decrypt one disk, I don’t know. That may be the case, but until you can point to a source one way or the other, you really can’t say what they do or don’t do. And, even if they did only decrypt a single disk, didn’t you mention that the important aspect of purchasing a film is the license to watch the movie anyways? So the two arguments would contradict one another.

    So that tackles the #2 issue.

    Your #3rd issue about transferring the license sounds like something you made up because it sounds like it would be illegal, but you didn’t provide any references showing it is actually law.

    Your #1 issue about decryption is really the debate of the whole lawsuit. VidAngel operates on the premise that decryption is necessary and protected by the Family Home Movie Act. This is a gray area, not a slam dunk (at least it isn’t yet) because there isn’t legal precedent.

    I liked reading your post because it is nice to hear what the other side is saying. I have a a few close friends that work for the company that runs VidAngel, and know the owner, so I am understandably biased in favor of the company.

  4. Thanks for sharing the insider knowledge, Nate. Yah, the computer guy inside me came up with *** after thinking about what I had said. Not the way it could/should be done if you were providing a menu of filtering options to people, which it sounds like is what they are doing.

    Really the slam dunk is the licensing issue. VidAngel is not licensed to transmit content. They are purchasing home-viewing licenses and then storing and transmitting them illegally, as per the private-home viewing license that is sold with a DVD. All cases I’ve ever heard have been found in favor of content owners and licensors, not for the people who are violating the terms or intent of the license, which VidAngel is clearly doing here in the name of a profit and building a business.

Leave a Reply

Your email address will not be published. Required fields are marked *

Set your Twitter account name in your settings to use the TwitterBar Section.