glenn d. pomerantz (s bn 112503) …blog.vidangel.com/wp-content/uploads/2017/06/full... · and for...

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POMERANTZ DECL. I/S/O EX PARTE APP. TO STRIKE

AND FOR DISCOVERY; 16-CV-04109-AB (PLAX)

GLENN D. POMERANTZ (SBN 112503) [email protected] KELLY M. KLAUS (SBN 161091) [email protected] ROSE LEDA EHLER (SBN 296523) [email protected] ALLYSON R. BENNETT (SBN 302090) [email protected] MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue, Thirty-Fifth Floor Los Angeles, California 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

DISNEY ENTERPRISES, INC.; LUCASFILM LTD. LLC; TWENTIETH CENTURY FOX FILM CORPORATION and WARNER BROS. ENTERTAINMENT INC.,

Plaintiffs and Counter-Defendants,

vs.

VIDANGEL, INC.,

Defendant and Counter-Claimant.

Case No. 16-cv-04109-AB (PLAx) DECLARATION OF GLENN D. POMERANTZ IN SUPPORT OF EX PARTE APPLICATION FOR AN ORDER [1] STRIKING VIDANGEL’S MOTION TO CLARIFY [DKT. NO. 182] FOR FAILURE TO COMPLY WITH LOCAL RULES AND [2] SETTING SCHEDULE FOR RE-NOTICED MOTION THAT INCLUDES DISCOVERY ON VIDANGEL’S “NEW” STREAMING SERVICE Judge: Hon. André Birotte Jr. Crtrm.: 7B Trial Date: None Set

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-2- POMERANTZ DECL. I/S/O EX PARTE APP. TO STRIKE


I, Glenn D. Pomerantz, hereby declare:

1. I am admitted to practice before all of the courts of the State of

California and this Court. I am an attorney at the law firm of Munger, Tolles &

Olson LLP, counsel for Plaintiffs in the above-captioned matter.

2. I submit this declaration in support of Plaintiffs’ Ex Parte Application

for an Order [1] Striking VidAngel’s Motion to Clarify for Failure to Comply with

the Local Rules and [2] Setting a Schedule for a Re-Noticed Motion that Includes

Discovery on VidAngel’s “New” Streaming Service. I have personal knowledge of

the facts set forth in this declaration. If called as a witness, I could and would testify

competently to the matters set forth herein.

3. My colleague Kelly M. Klaus has taken the lead on corresponding with

counsel for VidAngel, however he is currently away from the office on vacation. I

have therefore responded to VidAngel’s correspondence over the last week and am

submitting this declaration in his place.

4. On January 17, 2017, Mr. Quinto sent an e-mail to Plaintiffs’ counsel.

The e-mail described a hypothetical new filtering method that VidAngel was

“investigating” and asked Plaintiffs to consent to that method. Attached as Exhibit 1

is a true and correct copy of Mr. Quinto’s e-mail.

5. On January 30, 2017, Plaintiffs’ counsel sent Mr. Quinto a letter

declining to consent to VidAngel’s hypothetical proposed service which, as far as

Plaintiffs were aware, did not yet exist. VidAngel’s counsel never responded to that

letter. Attached as Exhibit 2 is a true and correct copy of Plaintiff’s January 30,

2017 letter.

6. On May 30 and June 2, 2017, Mr. Quinto and Plaintiffs’ counsel

exchanged e-mails regarding VidAngel’s request for information regarding titles

that VidAngel believed were not covered by the preliminary injunction. Mr.

Quinto’s e-mail did not mention any new streaming service or the Motion to Clarify.

Attached as Exhibit 3 is a true and correct copy of the parties’ e-mail exchange.

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7. On June 13, 2017, VidAngel announced the launch of the service that is

currently the subject of its Motion to Clarify, and livestreamed that announcement

via Facebook. Attached as Exhibit 4 is a screenshot of that announcement. The full

announcement is available at

https://www.facebook.com/VidAngel/videos/771785039672696/ (requires a

Facebook account to login). Plaintiffs would be happy to provide the Court with a

DVD if the Court would find a DVD useful.

8. Between June 13 and June 15, 2017, Mr. Quinto and Plaintiffs’ counsel

exchanged e-mails regarding VidAngel’s request for “a limited exception to [the]

preliminary injunction order” impacting between 12,000 and 20,000 copies of

Plaintiffs’ works, so that VidAngel could stream Plaintiffs’ works to the customers

that VidAngel claims “owned” discs of those works. I understood Mr. Quinto’s e-

mails to seek permission to use VidAngel’s currently enjoined service to stream

works to these customers. Nowhere did Mr. Quinto mention any new streaming

service or the Motion to Clarify. Attached as Exhibit 5 is a true and correct copy of

the parties’ e-mail exchange, which begins with an email from Mr. Quinto to Mr.

Klaus. I then responded to that email on behalf of Mr. Klaus.

9. Just after 6:00 p.m. on June 19, 2017, Plaintiffs were served with

VidAngel’s Motion to Clarify through the Courts CM/ECF system. VidAngel never

notified Plaintiffs that it was planning to file that motion or the basis for the motion.

10. On June 20, 2017, I contacted VidAngel’s counsel, Mr. Quinto,

regarding this ex parte application. I informed counsel that Plaintiffs intended to

file this application and explained the basis for the application, including that

VidAngel had failed to meet and confer and that Plaintiffs needed discovery to

respond to VidAngel’s motion.

11. I explained that, had VidAngel’s counsel complied with the Court’s

rules, Plaintiffs would have requested VidAngel’s agreement to an expedited

discovery schedule so that Plaintiffs could, through targeted discovery, understand

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and evaluate VidAngel’s new service. I asked whether Mr. Quinto would agree to

an expedited discovery schedule, so that the parties could avoid unnecessary

briefing. Mr. Quinto said that VidAngel would agree to a short extension of the

hearing date to allow Plaintiffs “informal discovery,” by which he said he meant

additional sworn declarations answering specific questions that Plaintiffs had with

respect to the new service. I responded that Plaintiffs needed actual discovery—on

a limited basis and expedited timeline—to determine how VidAngel’s service

worked, as well as to investigate other issues relevant to VidAngel’s motion, such as

the harm that the service may or may not cause Plaintiffs. Mr. Quinto asked that we

send him Plaintiffs’ proposed schedule, and said he would respond to that proposal.

12. Plaintiffs’ counsel e-mailed Mr. Quinto their proposed discovery

schedule at 11:12 a.m., and requested that Mr. Quinto respond by 2:00 p.m., so that

Plaintiffs could ask the Court for relief, if necessary. Mr. Quinto responded at 12:23

pm. He rejected Plaintiffs’ proposed schedule and incorrectly characterized the

proposal as “unlimited discovery”, but did not propose an alternative schedule,

instead simply reiterating that he had offered to allow Plaintiffs to ask VidAngel

specific questions and a “short extension” of the hearing date. Attached as Exhibit 6

is a true and correct copy of the e-mail exchange between Plaintiffs’ counsel and

Mr. Quinto.

13. Based on my phone call with Mr. Quinto and Mr. Quinto’s 12:23 e-

mail, I understand that VidAngel opposes Plaintiffs’ application and is not willing to

negotiate a mutually agreeable schedule for the discovery that Plaintiffs believe is

necessary to take a position on the pending Motion to Clarify.

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I declare under penalty of perjury under the laws of the United States of

America that the foregoing is true and correct.

Executed on June 20, 2017, at Los Angeles, California.

/s/ Glenn D. Pomerantz Glenn D. Pomerantz

EXHIBIT 1

Exhibit 1 Pomerantz Decl. - 6

1

From: David Quinto <[email protected]>Sent: Tuesday, January 17, 2017 1:03 PMTo: Klaus, KellyCc: Ehler, Rose; Pomerantz, Glenn; Bennett, Allyson; Elizabeth Brannen; Peter Stris; Brendan

Maher; Shaun Martin; Victor O'Connell; Daniel Geyser; Jaime W. Marquart Esq.; Ryan G. Baker; Brian Grace; Scott Malzahn; Maxwell M. Blecher; Donald R. Pepperman; Taylor Wagniere; Dana Berkowitz; Douglas Geyser; Bridget Asay; Michael Donofrio

Subject: VidAngel's request for consent to filter by a different method

Kelly:

VidAngel has been investigating a possible method to provide a filtering service that would avoid the necessity to decrypt content while ensuring that content holders are paid a streaming license fee. That method would not rely on the protections of the Family Movie Act and would not satisfy its requirement that consumers using a filtering service protected thereunder must first purchase a physical DVD or Blu‐ray disc. As VidAngel envisions such a technology, it would work either as or on top of a streaming media proxy service such as PlayOn or the now defunct Boxee.

Specifically, VidAngel would subscribe to existing streaming services, purchase a stream of any title it wished to “tag,” watch the movie using an augmented “tagging” version of the player that would permit navigating back and forth through the stream while setting timecodes, annotating filters, and previewing the effects the filters would have on a consumer’s playback experience. During this process, no copy of any movie would be created on any server and the segments streamed from the licensed provider would be retained in the tagger’s browser memory only while the tagging session was active. Upon completing the tagging session, those in‐memory video segments would cease to exist.

To view filtered content, VidAngel’s customers would have to establish accounts with one or more licensed streaming services and share the login credentials with VidAngel. Customers could then access VidAngel’s site to find out what titles were available with filtering and choose one to be purchased from the licensed streaming service. The licensed streaming service provider’s Web app running in a cloud‐based Google Chrome browser would begin streaming the content using authorized decryption keys supplied by the content provider. As that occurred, VidAngel would proxy the content to the customer’s chosen device using industry accepted delivery methods. In routing the stream, VidAngel would apply the filter settings selected by the customer. When the filtering session was completed, the cloud‐based browser and its cache of media content, along with the virtual instances used in the process, would be destroyed. No copy of the filtered segments would ever be made.

Given that PlayOn has been in business for seven years and has served far more customers than VidAngel and that plaintiffs evidently acquiesced in Boxee’s service to the extent it proxied paid content, we hope plaintiffs will agree that a service that operates as described above would not violate either the preliminary injunction or their claimed rights under any provision of the Copyright Act.

Please let me know promptly whether plaintiffs will consent to allow VidAngel to provide its services as described above, without prejudice to plaintiffs’ existing damages claims or request for permanent injunctive relief. Providing such consent would reduce plaintiffs’ damages exposure should the 9th Circuit find that the preliminary injunction issued improvidently, avoid burdening the Court with a motion to modify the Protective Order, and spare the parties a further expenditure of attorneys’ fees.

Thanks much,


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David Quinto General Counsel VidAngel


EXHIBIT 2


MUNGER, TOLLES & OLSON LLP

RONALD C OLSONROBERT E DENHAMJEFFREY I WEINBERGERCARY B LERMANGREGORY 0 STONEBRAD 0 BRIANBRADLEY S PHILLIPSGEORGE M GARVEYWILLIAM D TEMKOSTEPHEN M KNISTOVICHJOHN W SPIEGELDONALD B VERRILLI. JRTERRY E SANCHEZSTEVEN M PERRYMARK B HELMJOSEPH D LEEMICHAEL R DDYENMICHAEL E SOLOFFGREGORY D PHILLIPSKATHLEEN M M’DDWELLGLENN 0 PDMERANTZTHOMAS B WALPEROMALLEY M MILLERSANDRA A SEVILLE-JONESMARK H EPSTEINHENRY WEISSMANNKEVIN S ALLREDJEETREF A PEINT2JUO.THT KTTANDMARCTG DWDRSKYJEROME C ROTASTEPHEN 0 ROSEGARTHT VNCENTTED DANESTUART N SENATORMARTS 0 BERNDANEL P COJJNSROBERT L DELL ANGELOBRUCE A ABBOTTJONAThAN E ALTMANMARY ANN TODDMICHAEL J 0 SULLIVANKELLY M KLAUSDAVID B GOLDMANKEVIN S MASUDADAVID H FRYLISA J DEMSAYMALCOLM A HEINICKE

GREGORY J WEISGARTTHMERLIN J 000LEYJAMES C RJTTENRICHARD ST JOYSROAD K SINGLELUIS LIMICHAEL B DESANCTTSCAROLYN HOECKER LUEDTHEC DAVID LEEFRED A ROWLEY JRKATHERINE M FDRSTERBLANCA FRDMM YOUNGRANDALL G SOMMERRO5EMARIE T RINGTODD J ROSENMELINDA EADES LOMOINESETH GOLDMANGRANT A DAVIS-DENNY

JONATHAN H BLAVINDANIEL B LEVINMIRIAM KIMMISTYM SANFORDKATHERINE KUHAILYN J EVENBEThANY W HRiSTOVICHJACOB S KREILKAMPJEFFREYY WULAURA D SMDLDWEANJAN CHOUSHURYKYLEW MACHHEATHER E TAKAHASHIERIN J CDXBENJAMIN J HORWICHE MARTiN ESTRADAKIMBERLY A CHIADAM R AWWNMATThEW A MACDONALDMARGARET G MARUACHUJOJOEL M PURLESJESLYN A EVERITTMARK R. SAYSONJEREMY A LAWRENCECHRISTOPHER M LYNCHADAM I KAPLANAMELIA L B SARGENTBRYAN H HECKENLIVELYJASMINE M RDBERTS

560 MISSION STREET

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January 30, 2017

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VIA EMAIL

David Quinto (dquintovidangel.com)General CounselVidAngel, Inc.

Writer’s Direct Contact(415) 512-4017

(415)644-6917 FAXkeIIy.kIausrnto.corn

Re: Disney Enterprises, Inc. eta!. v. VidAngel, Inc. et aL, Case No. 2:16-cv-04 109-AB (C.D. Cal.)

Dear David:

I write in response to your January 17, 2017 email. As you know, we are in the middle ofpreparing our answer to VidAngel’s appeal on an expedited schedule, and therefore I have notbeen able to respond more quickly.

Our response to your request requires some context, which your email does not contain.Allow me to set forth some of that background.

first, the parties are in the midst of ongoing litigation. The district court has held thatPlaintiffs have a strong likelihood of succeeding on all three of their claims, namely, thatVidAngel is an unauthorized streaming service that engages in prohibited circumvention byripping DVDs and Blu-ray Discs containing Plaintiffs’ works; that VidAngel infringes Plaintiffs’copyrights by making unauthorized copies of those works; and that VidAngel further infringesPlaintiffs’ copyrights by making unlicensed streams from those unauthorized copies. The districtcourt. correctly in our view, held that VidAngel’s conduct was illegal and not protected by thefamily Iviovie Act, 17 U.S.C. § 110(11).


MUNGER, TOLLES & OLSON LLP

David QuintoJanuary 30, 2017Page 2

Second, your email does not appear to be part of an offer of settlement. If VidAngel hada proposal it believed could help resolve the litigation, we would have expected you to reach outin a confidential settlement communication. Because you did not designate your emailconfidential or subject to the customary rules that apply to settlement communications, we do nottake this to be the purpose of your email. If VidAngel has a proposal it believes could helpresolve the litigation, you should feel free to contact me in the form of a confidentialcommunication.

Third, VidAngel has previously used correspondence similar to your current email to tryto gain advantages in litigation. We do not know whether that is your intention with your currentemail, but the history here gives cause for concern.

With this context in mind, we understand your email to request that Plaintiffs giveadvance approval to a service that does not yet exist. Plaintiffs cannot reasonably be expected togive advance approval concerning the legality of services they have never seen. No person orbusiness I am familiar with provides this type of advance approval. It seems particularlyinappropriate for VidAngel to ask for this type of advance approval given its history of illegalconduct, the fact that VidAngel has been profiting at Plaintiffs’ expense, VidAngel’s consistentdisparaging of Plaintiffs, and VidAngels prior attempts to mischaracterize the facts surroundingthis dispute. Plaintiffs simply do not see the justification here for taking the unprecedented stepof providing advance approval regarding the legality of a litigation counter-party’s vaguelydescribed and non-existent service.

Your email also refers to the possibility of VidAngel moving to modify the ProtectiveOrder, by which I assume you mean a motion to modify the Preliminary Injunction. In essence,VidAngel would be asking the Court for an advisory opinion for a service that does not exist.Because there is no such service, there is nothing to evaluate or challenge, and any such motionwould he baseless.

The Court has entered a Preliminary Injunction that enjoins VidAngel from engaging inspecific, clearly defined conduct. VidAngel must not rip DVDs and Blu-ray Discs containingPlaintiffs’ copyrighted works, and VidAngel must not infringe Plaintiffs’ copyrights. IfVidAngel decides to launch a different service, Plaintiffs expect VidAngel to comply with thePreliminary Injunction and the law.

As we have made clear many times before, Plaintiffs have no complaint against servicesthat provide filtering in a manner that is consistent with the law.

Very truly yours,


EXHIBIT 3


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From: David Quinto <[email protected]>Sent: Friday, June 02, 2017 5:38 PMTo: Klaus, Kelly; Pomerantz, Glenn; Bennett, Allyson; Ehler, RoseCc: Jaime Marquart; Ryan G. Baker; Peter Stris; Elizabeth Brannen; Brendan Maher; Maxwell

M. Blecher; Donald R. Pepperman; Taylor WagniereSubject: RE: Plaintiffs' copyright works

Kelly: The preliminary injunction prohibits VidAngel from decrypting, copying, or transmitting works whose copyrights are owned by any of the four plaintiffs. It does not, however, identify those works. For that reason, we’re trying to determine what they are because VidAngel does plan to make certain content available again (but without decrypting anything). Because VidAngel wants to honor scrupulously the terms of the preliminary injunction, we have laboriously researched the copyright ownership of thousands of motion pictures by reference to the public database maintained by the United States Copyright Office and also by researching their ownership using IMDbPro.com. I provided you with the list of titles whose copyright ownership either appeared not to be held by any of the plaintiffs or was unclear to us. Indeed, many of the works plaintiffs have claimed as theirs clearly appear to be owned by others, such as, for example, works whose copyrights were registered by “CBS, Inc.” A partial list of the copyright claimants who do not appear to be one of the four plaintiffs includes such entities as CBS, Inc.; Internationale Scarena Filmproduktionsgesellschaft 2 GmbH & Co. KG; BILB Productions, Ltd., & RoadMovies Filmproduktion, GmbH; Lonely Film Productions, GmbH & Co. KG; Victoires Productions, Tapioca Films, Cinema 3 France; Deane F. Johnson & The Motion Picture and Television Fund; IASTM, LLC; Buddy Films, Inc.; Don Jon Nevada, LLC; Akira Committee; Pandora, Inc.’; Baxter Healthcare, Ltd.; Alpine Releasing Corporation & Trimark Pictures, Inc.; Pony Boy, Inc.; No Spies, LLC; Amontillado Productions, LLC; Spyglass Entertainment Group, LP; Regency Entertainment (USA), Inc.; The Ladd Company; 3Mark Entertainment [US]; TSN Ventures, LLC; Vortex, Inc.; American Film Investment Corporation II; Mandalay Entertainment; Diviner Holdings Pty Ltd, Megiste Films Pty Limited, Water Diviner LLC, Seven Network (Operations) Limited, Network Investment Holdings Pty Limited; Central Park Media Corporation; Off The Top Rope, Inc., Wild Bunch; Beacon Communications, LLC; MVL Film Finance LLC; Don Bluth Group of Companies; Imagi Production, Ltd.; Canal + Image UK; EuropaCorp, Grive Productions, Apipoulai Productions; Helena Productions, Ltd.; Cinergi Productions, Inc. and Cinergi Productions, NV; Watership Productions, Ltd.; Studio Ghibli; KLG Film Invest GmbH; DNA Films, Ltd.; 3DTK, Inc.; and Global Film Enterprises, Inc. among many, many others. I’ll agree that plaintiffs may ignore titles identified as owned by an entity that includes the “a.a.d.o” designation followed by the name of one of the plaintiffs. If you’ll provide a list of the d/b/as your clients have used in registering any of the titles in issue, VidAngel will accept for the time being that titles reflecting such ownership are also properly claimed by plaintiffs. But to the extent plaintiffs choose not to provide evidence that the copyrights to motion pictures that do not appear to be owned by one of the four plaintiffs are in fact owned by one of the four plaintiffs, so be it. If we see no persuasive evidence that they are owned by one of the plaintiffs, we will assume they are not. As you know, an injunction cannot be a trap for the unwary; it must be clear and unambiguous so that an enjoined party can determine what conduct is prohibited and what conduct is not. The only guidance the preliminary injunction provides to VidAngel is that it cannot decrypt, copy, or transmit all or any part of motion pictures whose copyrights are owned by any of the plaintiffs. VidAngel is trying in good faith to determine what those motion pictures might be. As explained above, we have laboriously researched the copyright ownership of thousands of motion pictures by reference to the public database maintained by the United States Copyright Office and by researching their ownership using


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IMDbPro.com. Should plaintiffs later decide to provide such evidence (as they would need to do to prove contempt), VidAngel will take them down upon receipt of that evidence. Were plaintiffs to seek contempt anyway, their application would be in bad faith.


From: Klaus, Kelly [mailto:[email protected]] Sent: Friday, June 02, 2017 1:53 PM To: David Quinto <[email protected]>; Pomerantz, Glenn <[email protected]>; Bennett, Allyson <[email protected]>; Ehler, Rose <[email protected]> Cc: Jaime Marquart <[email protected]>; Ryan G. Baker <[email protected]>; Peter Stris <[email protected]>; Elizabeth Brannen <[email protected]>; Brendan Maher <[email protected]>; Maxwell M. Blecher <[email protected]>; Donald R. Pepperman <[email protected]>; Taylor Wagniere <[email protected]> Subject: RE: Plaintiffs' copyright works

David – I have your email and have looked at the attached spreadsheet, although not exhaustively. At the outset, I find the email and the spreadsheet somewhat inscrutable. It’s not clear how the spreadsheet was compiled, who compiled it, or what purpose it is intended to serve. Did VidAngel put together the list? When did it do that? How did it select the listed “Movie Titles”? And what “U.S. Copyright Office records” were used to fill in the “Copyright Claimant” cells? Do you have corresponding copyright registration numbers; if so, what are they? And why is VidAngel asking these questions? Does VidAngel intend to resume ripping discs containing some or all of these titles, making unauthorized copies of the content on the discs, and publicly performing any work as to which plaintiffs do not accede to your requests for information? The questions I’m asking are important because it appears VidAngel is trying to force plaintiffs to undertake a lot of work for no reason. That work, moreover, would appear to be occasioned by VidAngel’s failure to


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do its own work. For example, numerous entries on the spreadsheet list “Touchstone Pictures, a.a.d.o. Disney Enterprises, Inc.” as the copyright claimant. As I’m sure you know, “a.a.d.o.” is an abbreviation for “an alternative designation of”—in other words, a dba. Touchstone Pictures is a dba of Disney Enterprises, Inc., a named plaintiff. “Hollywood Pictures Company” also is a dba of Disney Enterprises, Inc. Buena Vista Pictures Distribution Inc. was dissolved and merged into ABC, Inc., which is a subsidiary of Disney Enterprises, Inc. There also appear to be blatant errors in the spreadsheet. For example, the spreadsheet lists Ackee Music, Inc. as the copyright claimant for “To Be Or Not To Be.” The copyright claimant for the motion picture of that title is Twentieth Century Fox Film Corporation, also a plaintiff in the case. Ackee Music, Inc. owns a music video that was inspired by one of the songs in the motion picture. Does VidAngel have questions about whether the injunction covers a music video? You have provided no valid justification for requiring any plaintiff to undertake the time‐consuming and burdensome process of pulling registration certificates or chain‐of‐title documents and providing those to you. The parties agreed to defer any discussion of the need for or scope of discovery into such individualized issues until after the preliminary injunction phase. You state at the end of your email that, as to any title on the spreadsheet for which plaintiffs do not provide registration certificates or chain‐of‐title documents, VidAngel “will assume that [those titles] are not subject to the preliminary injunction.” Your assumptions are just that: your assumptions. They do not bind plaintiffs or determine the scope of VidAngel’s obligations under the preliminary injunction in any way. VidAngel has been held in contempt once for violating the


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preliminary injunction. Plaintiffs expect VidAngel to comply fully with its obligations under the preliminary injunction. I look forward to receiving your responses to my questions above. I also look forward to seeing you next week. Regards, Kelly

From: David Quinto [mailto:[email protected]] Sent: Tuesday, May 30, 2017 6:02 PM To: Klaus, Kelly; Pomerantz, Glenn; Bennett, Allyson; Ehler, Rose Cc: Jaime Marquart; Ryan G. Baker; Peter Stris; Elizabeth Brannen; Brendan Maher; Maxwell M. Blecher; Donald R. Pepperman; Taylor Wagniere Subject: Plaintiffs' copyright works Kelly: The preliminary injunction applies to plaintiffs’ copyright works. The attached list compiled from U.S. Copyright Office records identifies motion pictures whose copyrights do not appear to be owned by any of your clients. If we are mistaken as to any, please provide us with proof of ownership consisting either of a copy of a certificate registration identifying one of your clients as the copyright owner or a copy of the chain‐of‐title documents showing an assignment of the copyright to one of your clients. Absent such evidence, we will assume that they are not subject to the preliminary injunction. Thanks much,



EXHIBIT 4

Exhibit 4

Pomerantz Decl. - 17

https://www.facebook.com/VidAngel/videos/771785039672696/ 6/20/2017

Exhibit 4

Pomerantz Decl. - 18

EXHIBIT 5


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From: Pomerantz, GlennSent: Thursday, June 15, 2017 5:38 PMTo: David QuintoCc: Klaus, Kelly; Bennett, Allyson; Ehler, Rose; Jaime Marquart; Ryan G. Baker; Peter Stris;

Elizabeth Brannen; Brendan Maher; Maxwell M. Blecher; Donald R. Pepperman; Taylor Wagniere

Subject: RE: Request to Permit Limited Exception to Preliminary Injunction Order

David: We cannot agree to modify the preliminary injunction in the manner you propose. The versions of the movies that you propose to continue to stream were derived through unlawful circumvention and unlawful copying. And any further streaming of these movies in the way that you propose would constitute additional unlawful public performances. In short, we shouldn’t be asked to condone the fruits of VidAngel’s illegal activity and we’re not willing to do so.

From: David Quinto [mailto:[email protected]] Sent: Wednesday, June 14, 2017 1:11 PM To: Pomerantz, Glenn Cc: Klaus, Kelly; Bennett, Allyson; Ehler, Rose; Jaime Marquart; Ryan G. Baker; Peter Stris; Elizabeth Brannen; Brendan Maher; Maxwell M. Blecher; Donald R. Pepperman; Taylor Wagniere Subject: RE: Request to Permit Limited Exception to Preliminary Injunction Order

Glenn: VidAngel is asking for plaintiffs’ consent precisely because the proposed activity does implicate a portion of the copyright claim (but not the DMCA claim) reflected in the terms of the preliminary injunction. As VidAngel’s now enjoined technology worked, each motion picture was decrypted once and only once. An intermediate copy was then made, converted into a different form of intermediate copy, and uploaded to the cloud. Tagging typically occurred after the upload to the cloud. Following the tagging process, the intermediate copy in the cloud was duplicated in four separate bit rates. Finally, each intermediate copy was broken into encoded bits varying in length from less than one second to as many as ten seconds, all of which were stored in a secure location in the cloud. That process also occurred but once with respect to each title. Because the motion pictures subject to our request all underwent the above process before the injunction issued, VidAngel’s request does not implicate either the DMCA claim or the § 106(1) claim. After the above occurred, VidAngel’s customers bought copies of the motion pictures on disc for $20. After doing so, they were entitled to watch the motion pictures they owned as many times as they wanted. They could also choose to sell them back to VidAngel for an amount of credit that declined $1 or $2 per day from the $20 purchase price. The overwhelming majority of VidAngel customers chose to sell their discs back, but some customers chose to keep their discs so long that the sell‐back value was exhausted. When the preliminary injunction issued, a bit over 20,000 “permanently owned” discs fell into that category. In obtaining the preliminary injunction, Plaintiffs persuaded the Court that every time VidAngel streamed or transmitted a filtered motion picture to a customer who owned a copy of that motion picture, VidAngel engaged in a public performance unprotected by the Family Movie Act, thus rendering the transmission a


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violation of § 106(4). (VidAngel believes the Court erred in three ways in reaching that conclusion. It believes that (i) the FMA, read fairly, immunizes it from public performance claims; (ii) the transmission of a motion picture to a consumer who owns a copy of that motion picture is a private, not public, performance; and (iii) filtering is transformative, thus rendering the transmission of unique versions to different families private, not public, performances.) Because the Preliminary Injunction prohibits the transmission of filtered motion pictures to persons who own copies of those motion pictures, transmitting filtered versions of the content of the approximately 12,000 copies of Plaintiffs’ works to the consumers who currently own copies of those motion pictures and who have already watched filtered versions of their content would violate the Preliminary Injunction. As I said, though, agreeing to allow such further transmission to persons who have already seen a filtered version of the motion picture would not introduce filtering to a new audience. It will also result in a cost to VidAngel rather than to any additional revenue. Inasmuch as Plaintiffs’ beef is, we assume, with VidAngel and not with consumers, we hope Plaintiffs will accede to this request given that doing so (i) will not harm Plaintiffs in any way; (ii) will not provide any benefit to VidAngel; and (iii) would benefit a small group of consumers. Please let me know whether Plaintiffs, or any of them, will grant this request. Thanks much, David Quinto

From: Pomerantz, Glenn [mailto:[email protected]] Sent: Wednesday, June 14, 2017 11:40 AM To: David Quinto <[email protected]> Cc: Klaus, Kelly <[email protected]>; Bennett, Allyson <[email protected]>; Ehler, Rose <[email protected]>; Jaime Marquart <[email protected]>; Ryan G. Baker <[email protected]>; Peter Stris <[email protected]>; Elizabeth Brannen <[email protected]>; Brendan Maher <[email protected]>; Maxwell M. Blecher <[email protected]>; Donald R. Pepperman <[email protected]>; Taylor Wagniere <[email protected]> Subject: Re: Request to Permit Limited Exception to Preliminary Injunction Order David: Kelly is out of the country and asked me to respond to your email. Plaintiffs cannot tell precisely what VidAngel is proposing to do. It appears that the modification of the preliminary injunction that you are seeking may implicate some or all of the DMCA and copyright violations that led the Court to issue the injunction in the first place. Can you provide us with more detail of what VidAngel is proposing to do, and why you think that VidAngel's proposed approach does not implicate the DMCA and/or copyright violations found by the Court in its ruling on our preliminary injunction motion?

On Jun 13, 2017, at 10:38 AM, David Quinto <[email protected]> wrote:


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Kelly: As you know, VidAngel is going to resume offering filtered content using its new technology. I am writing to ask that plaintiffs permit VidAngel to engage in one, narrow activity in contravention of the terms of the preliminary injunction. As you know, VidAngel’s customers own a bit over 20,000 discs that have no sell‐back value. I don’t have a precise breakdown of the number that have works owned by plaintiffs but I reasonably estimate that there are fewer than 12,000 such works in total. All have been filtered and watched at least once by the customers who own them. As a courtesy to those customers, VidAngel would like to make those works available again to their current owners, and only their current owners. Those works were decrypted and tagged using VidAngel’s enjoined technology. Because VidAngel will not make any of plaintiffs’ works available using its new technology absent plaintiffs’ consent or judicial permission, it is not planning to re‐tag or transmit any of the titles in question using its new technology. Please note that VidAngel would not derive any revenue from doing so (having sold the discs long ago) and would in fact incur the expense of streaming to those customers. To the contrary, VidAngel would incur the expenses associated with streaming content to them. And, of course, no one who has not already seen a filtered version of that content would see it again. We hope plaintiffs will not be a dog in the manger, denying VidAngel’s customers the benefit of watching discs they already own when such denial would neither harm VidAngel nor benefit plaintiffs. Please let me know whether plaintiffs, or any of them, will permit the foregoing exception to the preliminary injunction order. Thanks much,



EXHIBIT 6


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From: David Quinto <[email protected]>Sent: Tuesday, June 20, 2017 12:23 PMTo: Ehler, RoseCc: Pomerantz, Glenn; Jaime W. Marquart Esq.; Ryan G. Baker; Brian Grace; Aaron Renfro;

Sam Brooks; Mark EisenhutSubject: RE: Proposed Limited Discovery Schedule

Glenn and Rose: Plaintiffs were notified of the development of VidAngel’s new technology more than five months ago. Notwithstanding that during our call you were unable to identify anything plaintiffs don’t understand about VidAngel’s new technology or anything else they need to learn to evaluate VidAngel’s request, they are now seeking to be allowed virtually unlimited discovery. As a compromise, I proposed that we agree to a short extension of the hearing date and that VidAngel be allowed to answer any questions plaintiffs might have by providing sworn declarations. Plaintiffs rejected that out of hand and now demand that VidAngel consent to allow them to serve written discovery without any limitation, submit to a (presumably expert) examination of its new technology, and submit to two 7‐hour depositions—all without allowing VidAngel to conduct discovery. Further, plaintiffs’ time to initiate written discovery would not even commence until Judge Birotte has entered a proposed order. Further, at the end of the process, plaintiffs would not even be required to respond to the pending motion but would then be required only to propose a briefing and hearing schedule. This is game playing in an attempt to further injure VidAngel by prohibiting it from competing when it has, at great time and expense, developed a technology that works exactly as they advised both the District Court and the 9th Circuit such a technology should work. VidAngel cannot agree. Thanks much, David Quinto

From: Ehler, Rose [mailto:[email protected]] Sent: Tuesday, June 20, 2017 11:12 AM To: David Quinto <[email protected]> Cc: Pomerantz, Glenn <[email protected]> Subject: Proposed Limited Discovery Schedule David, Below is the limited discovery schedule that we propose. Please let us know your position by 2pm PST so we can ask the Court for relief if necessary:

Plaintiffs will serve discovery requests on VidAngel within 5 days of the Court’s Order (either granting our joint stipulation or our ex parte motion);


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VidAngel will respond, including production of documents, to those requests by no later than 30 days from the date of service of the requests;

VidAngel will permit inspection of its service within 14 days of production of documents; Plaintiffs will have an additional 21 day period, after the inspection, to evaluate the discovery and take no more than two

depositions; By no later than 10 days after the deposition cutoff, the parties will meet and confer regarding whether Plaintiffs plan to

object to VidAngel’s new service, and, if they do object, an agreed-upon briefing schedule; By no later than 3 days after the parties’ meet and confer, the parties will inform the Court whether Plaintiffs object and, if

so, propose a briefing schedule on VidAngel’s motion for clarification. Thanks, Rose Rose Leda Ehler | Munger, Tolles & Olson LLP 560 Mission Street | San Francisco, CA 94105 Tel: 415.512.4071| [email protected] | www.mto.com

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