ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Pеnding before the Court is Plaintiffs’ Disney Enterprises, Inc., Lucasfilm Ltd. LLC, Twentieth Century Fox Film Corporation, and Warner Bros. Entertainment Inc. (“Plaintiffs”) Motion for Preliminary Injunction. (“Mot.” Dkt. No. 26-1.) Plaintiffs seek to enjoin Defendant VidAngel Inc. (“VidAngel”) from [1] violating Plaintiffs’ rights pursuant to § 1201(a) of the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 1201(a), by circumventing technological measures that effectively control access to Plaintiffs’ copyrighted works on DVDs and Blu-ray discs; and [2] infringing by any means, directly or indirectly, Plaintiffs’ exclusive rights under § 106 of the Copyright Act, id. § 106, including by reproducing or publicly performing Plaintiffs’ copyrighted works.
Plaintiffs bring this motion on the grounds that they are likely to succeed on the merits of their claims and that they will suffer irreparable harm, absent an injunction. Plaintiffs contend that the balance of equities tips decidedly in their favor, and an injunction is in the public interest. Furthermore, Plaintiffs contend that VidAngel’s defenses to violating Plaintiffs rights are meritless and thus Plaintiffs are entitled to a preliminary injunction against Defendants. VidAngel filed an opposition and the Plaintiffs filed their reply. The Court hеard oral arguments from the parties on November 14, 2016 and took the matter under submission. Upon consid
I. BACKGROUND
a. Factual and Procedural Background
i. Plaintiffs and Their Copyrighted Works
Plaintiffs are in the business of producing and distributing motion pictures and television programs. (“Compl.” Dkt. No 1 ¶ 19.) Plaintiffs invest considerable effort and resources each year to develop, produce, distribute and publicly perform their Copyrighted Works. (Id. at ¶ 25.) Plaintiffs own and have the exclusive U.S. rights to reproduce and publicly perform their Copyrighted Works, including by means of streaming those works over the internet to the public. (Id. at ¶ 25.) Plaintiffs distribute and license their content for home entertainment across a number of channels. (Id. at ¶ 27.) These include, among others: (1) physical Discs; (2) digital download through services like iTunes, VUDU or Amazon Video; (3) on-demand streaming for short-term viewing on a per transaction fee (e.g., iTunes Store or Google Play Store); or (4) subscription on-demand streaming (e.g., Netflix or Hulu). (Cittadine Decl. ¶ 9.)
Plaintiffs strategically release their content across different distribution channels and to different licensees over time, a process called “windowing.” (Id.) The value and price for each offering is tailored to the willingness of customers (and licensees) to pay for those offerings. (Id.) Plaintiffs often negotiate higher licensing fees in exchange for granting a licensee the exclusive right to perform a movie or television show during a particular time period. (Id.) Plaintiffs assert that online and digital distribution channels have become increasingly important revenue sources. (Id. ¶ 10.)
ii. VidAngel’s Service
VidAngel offers more than 2,500 movies and television episodes for purchase on its website. Answer/Counterclaim (“CC,” Dkt. No. 77 ¶ 59.) VidAngel purchases physical copies of each of these titles in DVD format. (Id.) VidAngel enters each DVD it has purchased into an inventory management application database and assigns a unique barcode to each physical disc case. (Id. at ¶ 60.) VidAngel then uses a commercially available software program to decrypt a copy of each individual title. (Meldal Dec., ¶ 37(ii).) After decryption, VidAngel creates “intermediate” files. (Oppo. at 17.) VidAngel tags the files for over 80 types of potentially objectionable content. (Meldal Dec., ¶¶ 33-38.)
Before watching a particular movie or television episode, a customer must purchase a physical DVD containing the title from VidAngel. (CC ¶ 63.) The purchase price for each DVD is $20. (Id. ¶ 64.) To purchase a disc, users must logon to the VidAngel website. First-time users are required to provide an email address to establish a unique user ID and create a password. (Id.) Once a purchase transaction has occurred, the disc is removed from available inventory and the title is transferred to that customer’s unique user ID. (Id. at 65.) VidAngel typically maintains possession of the physical DVD on behalf of the purchasers, but purchasers may request that the DVD be sent to them or retrieve the DVD from VidAngel’s offices. (Id. ¶ 63.)
After -a customer purchases a physical DVD they are shown a listing of the vai’ious types of potentially objectionable content identified in the purchased work, as well as the number of occurrences of each such type of content within the work. (Id.
Once a user has viewed a stream, the user may re-sell the DVD back to VidAn-gel for a partial credit of the $20 purchase price. (Id. ¶ 68.) The sellback price decreases $1 per night for standard definition (SD) purchases and $2 per night for high-definition (HD) purchases. (Id.) Once a user sells the movie back to VidAngel, the user’s access to the title is terminated and the remaining balance is credited back to the user’s VidAngel account. (Id.) For example: A $20 SD disk is owned for 2 nights at $1 per night and sold back for $18 in sell-back credit. (Id.) If a VidAngel customer keeps a DVD for more than 20 days, he or she can either view it through the VidAngel platform in perpetuity, sell it back for $1 or $2 in credit, or VidAngel will send the DVD to the customer, if requested. (Id.)
At the time of this motion, VidAngel offered over 80 of Plaintiff’s copyrighted works on their website. (Compl. Ex. A.; Ehler Decl. Ex. EE at Tr. 27:19-29:14.) Plaintiffs have not provided authorization, permission or consent to VidAngel to copy or publicly perform the Copyrighted Works, or to exercise any other rights affecting their copyrights with respect to the Copyrighted Works. (Compl. ¶ 29.)
On June 9, 2016, Plaintiffs commenced this action by filing a complaint against Defendants. (Complaint, Dkt. No. 1.) On July 5, 2016, Defendants filed an answer and counterclaim. (Dkt. No. 11.) On August 22, 2016, Plaintiffs filed a Motion for Preliminary Injunction. (Dkt. No. 27) On September 16, 2016, Defendants filed an Amended Answеr and Affirmative Defenses, as well as First Amended Counterclaims. (Dkt. No. 77.)
II. LEGAL STANDARD
Injunctive relief is “an extraordinary remedy that may only be issued upon a clear showing that plaintiff is entitled to such relief.” Winter v. Natural Resources Defense Council,
Alternatively, “ ‘serious questions going to the merits’ and a hardship balance that tips sharply toward the plaintiff can support the issuance of an injunction,” provided that the plaintiff also shows irreparable harm and that the injunction is in the public interest. Alliance for the Wild Rockies v. Cottrell,
The elements of this test are “balanced, so that a stronger showing of one element may offset a weaker showing
“[A] preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.” Univ. of Texas v. Camenisch,
III. DISCUSSION
a. Plaintiffs Have Demonstrated A Likelihood of Success on the Merits.
i. Plaintiffs’ DMCA Claim
Section 1201(a)(1)(A) of the Digital Millennium Copyright Act provides that “No person shall circumvent a technological measure that effectively controls access to a work 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 а treatment, with the authority of the copyright owner, to gain access to the work.” 17 U.S.C. § 1201(a)(3)(B). Plaintiffs use Content Scramble System technology (“CSS”), among other technologies
Plaintiffs contend that VidAngel circumvents the technological protection measures on Plaintiffs DVDs. The DMCA specifies that “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). VidAngel admits that it “uses 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.” (Dkt. No. 77, ¶ 120(b)). VidAngel argues that this activity doesn’t amount to circumvention because they are only decrypting DVDs to allow them to be viewed in another way, a procedure known as re-formatting or “space shifting.” (Oppo at 17.) VidAngel asserts that the practice of “space-shifting” is legal when it is performed for disc purchasers who elect to have their DVD content streamed to them rather than receiving the physical discs. (Id.) The Court finds no support for Vi-dAngel’s position.
Multiple courts have declined to adopt an exemption for space-shifting. In 321 Studios v. MGM Studios, Inc.,
The Librarian of Congress, and the Register of Copyrights, also recently declined to adopt an exemption that would allow circumvention of access controls on lawfully made and acquired audiovisual works for the purpose of noncommercial space-shifting or format-shifting. Exemption to
VidAngel also argues that the Family Home Movie Act of 2005 (“FMA”) provides an exemption for decrypting DVDs for the purpose of accessing a disk to filter audio and visual content. VidAngel asserts that the provisions of the FMA render their circumvention lawful because “the making of a decrypted copy [is] the necessary first step in making a lawfully purchased DVD capable of being filtered.” (Dkt. 11 ¶ 61.) (Counter-Complaint). The FMA, codified in 17 U.S.C. § 110(11), specifically carves out an exemption from copyright infringement for:
“the making imperceptible, by or at the direction of a member of a private household, of limited portions of audio or video content of a motion picture, during a performance in or transmitted to that household for private home viewing, from an authorized copy of the motion picture, or the creation or provision of a comрuter program or other technology that enables such making imperceptible and that is designed and marketed to be used, at the direction of a member of a private household, for such making imperceptible, if no fixed copy of the altered version of the motion picture is created by such computer program or other technology”
17 U.S.C. § 110(11). 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 Or-rin Hatch, who introduced the FMA to the U.S. Senate, stated that the FMA “does not provide any exemption from the anti-circumvention provisions of section 1201 of title 17.” 150 Cong. Rec. S.11852-01 at S11853 (Statement of Senator Hatch) (RJN Ex. G at 269).
Finally, VidAngel states that in MDY Indus., LLC v. Blizzard Entm't, Inc.,
ii. Plaintiffs’ Copyright Infringement Claims
Plaintiffs must satisfy two requirements to present a prima facie case of direct infringement: (1) they must show ownership of the allegedly infringed material and (2) they must demonstrate that the alleged infringers violate at least one exclusive right granted to copyright holders under 17 U.S.C. § 106. Plaintiffs have sufficiently demonstrated ownership of the copyrighted works identified in the complaint by providing certificates of registration issued by the Copyright Office. (Klaus Decl. Exs. A-RR.) A certificate of registration is “prima facie evidence of the validity of the copyright and of the facts stated in the certificate.” 17 U.S.C. § 410(c). VidAngel has not disputed that it currently offers all of the works listed in Exhibit A to the complaint and states that it will continue to offer these works and other future releases, unless enjoined. (Ehler Decl. Ex. EE at Tr. 27:19-29:14; 30:3-20; 31:6-37:4.) VidAngel also does not dispute the validity of Plaintiffs’ copyrights. Therefore, the only factor at issue in this case is whether Defendants have violated at least onе exclusive right granted to Plaintiffs as copyright holders.
1. VidAngel Violates Plaintiffs’ Exclusive Right To Reproduce Their Works By Making Copies
One of the rights granted by Section 106 of the Copyright Act is the exclusive right “to reproduce the copyrighted work in copies.” 17 U.S.C. § 106(1). VidAn-gel admits to making copies of Plaintiffs’ works onto a computer system and third-party servers. (Ehler Decl. Ex. EE at Tr. 58:1-4.) The Ninth Circuit in MAI Sys. Corp. v. Peak Computer, Inc.,
VidAngel claims that their copies of Plaintiffs’ works are only “intermediate” copies and not “copies” as defined by the Copyright Act. VidAngel’s process of copying involves several steps. First, VidAngel decrypts the DVDs. (Oppo. at 17.) After decryption, VidAngel creates “intermediate” files. (Id.) VidAngel tags the files for over 80 types of content, and breaks them into approximately 1,300 fragments that contain no more than 10 seconds of content, then encrypts those fragments, and stores them in a secure, access-controlled location in the cloud. (Meldal Dec., ¶¶ 33-38.) VidAngel asserts that these fragments are not capable of being watched until “VidAngel software assembles the segments in sequence, and for each segment decrypts the content, displays it and then discards the segment.” (Meldal Dec., ¶ 37(xiii)).
VidAngel contends that case law regarding the reproduction right under § 106(1) draws a clear distinction between unlawful copies, which can be viewed by consumers,
2. VidAngel Violates Plaintiffs’ Exclusive Right To Publicly Perform Their Copyrighted Works
Another of the lights granted by Section 106 of the Copyright Act is the exclusive right “in the case of ... motion pictures and other audiovisual works, to perform the copyrighted work publicly.” 17 U.S.C. § 106(4). What constitutes a public performance for purposes of Section 106(4) is defined by the Copyright Act in Section 101. “Under Section 101(2), the “transmit” clause, a performance is public if someone: transmits or otherwise communicates a performance or display of the work ... to the public, by means of any device or process.” Warner Bros. Entm’t, Inc. v. WTV Sys.,
Plaintiffs assert that services like Vi-dAngel’s violate the public performance right, despite the fact that the performances are transmitted privately for in home viewing. The court in On Command Video Corporation v. Columbia Pictures Industries,
VidAngel argues that their service does not engage in public performances because VidAngel streams filtered versions of motion pictures created at the direction of
3. VidAngel’s FMA Defense for Copyright Infringement
The Family Home Movie Act is codified in 17 U.S.C § 110(11). It provides an exemption from copyright infringement for:
the making imperceptible, by or at the direction of a member of a private household, of limited portions of audio or video content of a motion picture, during a performance in or transmitted to that household for private home viewing, from an authorized copy of the motion picture, or the creation or provision of a computer program or other technology that enables such making imperceptible and that is designed and marketed to be used, at the direction of a member of a private household, for such making imperceptible, if no fixed copy of the altered version of the motion picture is created by such computer program or other technology.
Plaintiffs assert, and the Court agrees that the FMA exempts only (1) “the making imperceptible” of limited portions of a motion picture; and (2) “the creation or provision of a computer program or other technology that enables such making imperceptible.” 17 U.S.C § 110(11). VidAngel’s contends that the FMA expressly provides that a third party may filter and transmit content as specified by a lawful owner of a copy so long as a fixed copy of the altered content is not creatеd. However, this assertion is unsupported by the clear language of the statute. (Oppo. at 12.) The statute clearly requires that a performance, or transmission of filtered content must come from an “authorized copy” of the motion picture. The digital content that VidAngel streams to its customers is not from an authorized copy. VidAngel streams from a digital copy that it acquires by circumventing technological protection measures on Plaintiffs DVDs in violation of § 1201(a) of the DMCA. See discussion supra Sections III.A.i, III.A.ii.2. Furthermore, the requirement that the fil
iii. VidAngel’s “Fair Use” Defense
VidAngel asserts that they are making “fair use” of the copyrighted works as provided in 17 U.S.C. § 107 of the Copyright Act. The pertinent language of that section reads as follows:
Notwithstanding the provisions of sections 106 and 106A, 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
(1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
1. Purpose and Character of the Use.
The “purpose and character of use” factor in the fair use inquiry asks “to what extent the new work is transforma-tive” and does not simply “supplant” the original work and whether the work’s purpose was for or not-for-profit. Mattel Inc. v. Walking Mt. Prods.,
VidAngel argues that their filtering sеrvice is transformative in that it alters the content of the works as seen by different viewers in different ways. (Oppo. at 20.) The Supreme Court has said that a use is transformative if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” Campbell,
2. Nature of the Copyrighted Work
“The second statutory factor, ‘the nature of the copyrighted work,’ § 107(2), draws on Justice Story’s expression, the ‘value of the materials used.’” Campbell v. Acuff-Rose Music, Inc.,
3. Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole
The third factor in the fair use analysis evaluates both the quantity of the work taken and the quality and importance of the portion taken. Campbell,
4. Effect of the Use Upon the Potential Market For or Value of the Copyrighted Work
The fourth factor in the fair use analysis considers current market harm and “ ‘whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market’ for the original.” Campbell,
VidAngel argues that their service does not harm the market for Plaintiffs copyrighted works because filtered movies are not a substitute for Plaintiffs unfiltered movies. (Oppo. at 21.) VidAngel also asserts that their filtering service actually increases the market for Disney’s works. (Id.) VidAngel attempts to support their arguments by offering customer survey results that indicate that over 51% of VidAn-gel customers would not watch their offerings without filtering. The survey results are ultimately detrimental to VidAngel’s arguments. The fact that 49% of VidAn-gel’s customers would view movies without filters shows that VidAngel’s service does serve as an effective substitute for Plaintiffs unfiltered works, for approximately half of VidAngels users. Furthermore, the fact that VidAngel’s streams are “composed primarily” of Plaintiffs works, including the heart of the work, “with little added or changed” makes the streams “more likely to be a merely superseding use, fulfilling demand for the original.” Campbell,
At trial, the defendant in an infringement action bears the burden of proving fair use. See Campbell v. Acuff-Rose Music, Inc.,
b. Plaintiffs Have Demonstrated A Likelihood of Imminent Irreparable Injury.
Following the Supreme Court’s decisions in eBay Inc. v. MercExchange,
Plaintiffs argue that they will suffer irreparable harm in the absence of a preliminary injunction. First, Plaintiffs argue that VidAngel’s service interferes with their basic right to control how, when and through which channels consumers can view their copyrighted works. (Mot. at 27.) Where defendants operate an “infringing service without the normal licensing restrictions imposed by Plaintiffs, [it] interfere[s] with Plaintiffs’ ability to control the use and transmission of their Copyrighted works, thereby, causing irreparable injury.” Warner Bros. Entm’t, Inc. v. WTV Sys.,
Second, Plaintiffs argue that VidAngel threatens harm to Plaintiffs’ relationships and goodwill with authorized distributors by undermining their ability to provide licensed offerings. (Mot. at 28.) Plaintiffs assert that this harm continues to grow as VidAngel adds more users and encourages
VidAngеl argues that Plaintiffs alleged harms are speculative and that there is no evidence of actual harm to Plaintiffs other than the declaration of Tedd Cittadine. (Oppo. at 27.) In Fox TV Stations, Inc. v. FilmOn X LLC,
VidAngel also contends that any damage their service might cause to Plaintiffs is economic in nature and thus doesn’t qualify as irreparable harm. (Oppo. at 28-29.) However, harm to one’s negotiating position and/or goodwill with licensees is difficult to quantify. In Fox Television Stations, Inc. v. BarryDriller Content Sys., PLC,
VidAngel also asserts that Plaintiffs delay in filing an injunction belies their claims of irreparable harm. VidAngel states that they notified the Plaintiffs about their service with two letters in July and August 2015. (Oppo. at 22.) VidAngel asserts that these letters described their business model, including the fact that Vi-dAngel: (1) “purchases the DVD or Blu-ray disc for the customer and stores it in a physiсal vault;” (2) “streams” the contents of the disc to the customer in a filtered format chosen by the customer; and (3) then “re-purchase[s] the disc at a discount from the sale price ... based on the length of time the customer has owned the disc.” (Id.) VidAngel added that it had grown from 43 to 4848 users in just under six months. (Id.) Plaintiffs filed for a preliminary injunction on August 22, 2016. (Dkt. No. 27.) VidAngel contends that Plaintiffs delay of more than one year before requesting a preliminary injunction is inconsistent with a claim of irreparable harm.
Courts have held that “long delay before seeking a preliminary injunction implies a lack of urgency and irreparable harm.” Oakland Trib., Inc. v. Chron. Pub. Co.,
Plaintiffs assert that when they first learned of VidAngel, it was in “limited beta” and had fewer than 5,000 users— which would not lead legitimate streaming licensees to “notice (let alone complain).” (Cittadine Deck ¶¶ 35-36.) Plaintiffs state that they monitored VidAngel and investigated their claims, and once VidAngel started marketing itself more aggressively, expanded its content offering, and posed a more significant threat of harm, Plaintiffs filed this action and sought a preliminary injunction. Id. In, ABC v. AEREO, Inc., the court found no undue delay under analogous circumstances. There, the plaintiffs “were aware of [the service’s] existence for roughly a full year before seeking [an] injunction,”
Based on the foregoing, the Court holds that Plaintiffs have sufficiently shown that they will suffer irreparable harm in the absence of an injunction.
c. Balance of Hardships Weighs in Favor of the Plaintiffs
An injunction may not issue unless the balance of hardships tips sharply in favor of the moving party. International Jensen, Inc. v. Metrosound U.S.A., Inc.,
Accordingly, the Court concludes that the balance of hardships tips sharply in favor of Plaintiffs.
d. A Preliminary Injunction is in the Public Interest
VidAngel argues that the public interest in protecting every person’s right to watch filtered content in private would be severely undercut by the issuance of a preliminary injunction. This argument strongly relies on VidAngel’s characterization of its service as the only filtering service under the FMA that supports streaming digital content to mobile devices, tablets, and Smart TV’s. However, the evidence in the record shows that another filtering service, ClearPlay, offers filtering to Google Play users who access authorized streams from GooglePlay’s licensed service. (Bennett Decl. Ex. A. at 5-6.) An injunction in this case would not prevent VidAngel or any other company from providing a filtering service similar to ClearPlay’s, and thus wouldn’t negatively impact the public interest in watching filtered content in private.
On the other hand, “it is virtually axiomatic that the public interest can only be served by upholding cоpyright protections and correspondingly, preventing the misappropriation of skills, creative energies, and resources which are invested in the protected work.” Warner Bros. Entm’t, Inc. v. WTV Sys.,
IV. AMOUNT OF SECURITY
Federal Rule of Civil Procedure 65(c) provides that “[t]he court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” The Ninth Circuit has recognized that Rule 65(c) invests the district court “with discretion as to the amount of security required, if any.” Barahona-Gomez v. Reno,
VidAngel asks the court to impose a substantial bond of $50,000,000 because an injunction threatens to put VidAngel out of business before any resolution on the merits and would cause it serious financial loss. VidAngel contends that this substantial bond is required because, “A party that is wrongfully enjoined may be limited to the amount of the bond as its recovery. Buddy Sys., Inc. v. Exer-Genie, Inc.,
Plaintiffs contend that analogous cases have required security bonds well below $1 million. See, e.g., BarryDriller,
Y. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s Motion for Preliminary Injunction. (Dkt. No. 27.) Defendants, as well as their officers, employees, attorneys, and those acting in concert with them are temporarily enjoined from:
(1) circumventing technological meаsures protecting Plaintiffs’ copyrighted works on DVDs, Blu-ray discs, or any other medium;
(2) copying Plaintiffs’ copyrighted works, including but not limited to copying the works onto computers or servers;
(3) streaming, transmitting or otherwise publicly performing or displaying any of Plaintiffs’ copyrighted works over the Internet (through such websites as YidAngel.com), via web applications (available through platforms such as the Windows App Store, Apple’s App Store, the Amazon App Store, Facebook or Google Play), via portable devices (such as through applications on devices such as iPhones, iPads, Android devices, smart phones or tablets), via media streaming devices (such as Roku, Chromecast or Apple TV), or by means of any other device or process; or
(4)engaging in any other activity that violates, directly or indirectly, Plaintiffs anti-circumvention right under § 1201 of the Copyright Act, 17 U.S.C. § 1201(a), or infringing by any means, directly or indirectly, Plaintiffs’ exclusive rights under § 106 of the Copyright Act, 17 U.S.C. § 106.
Plaintiff is ordered to post a bond in the amount of $250,000.
IT IS SO ORDERED.
Notes
. Both sides make numerous evidentiary objections. In light of the relaxed evidentiary standard for preliminary injunction proceedings, the Court need not rule on admissibility. However, the Court has considered the likely admissibility of the evidence in determining whether the Plaintiff demonstrated a likelihood of success on the merits, for purposes of the preliminary injunction. Where the Court has expressly relied on evidence that is subject to an evidentiary objection, the Court has overruled the objection.
. The TPMs that protect Plaintiffs' content on DVDs and Blu-ray discs include the CSS (for DVDs) and the Advanced Access Content System ("AACS”) and/or BD+ (for Blu-ray discs). (Compl. ¶ 32.)
. VidAngel asserts that former Solicitor General Don Verrilli, "while representing the major record labels and movie studios" in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.,
. Because legislative history is a matter of public record, which is not subject to reasonable dispute, the court will take judicial notice of this item. See FED.R.EVID. 201(b). See also Palmer v. Stassinos,
. VidAngel makes a very brief assertion that the remedies section of the DMCA makes clear that to redress violations, courts "may not impose a prior restraint on free speech,” 17 U.S.C. § 1203(b)(1). (Oppo. at 18.) VidAngel has not sufficiently briefed this issue nor otherwise argued it before the court. Therefore the Court will not reach this argument.
. Cittadine declared that at the time of his declaration VidAngel was offering (at least) two of Plaintiffs’ works—The Martian and Brooklyn—during periods these works are exclusive to an authorized licensee, HBO. (Cittadine Decl. ¶ 30.)