clock menu more-arrow no yes

Filed under:

Hollywood is suing a Utah-based movie filtering service. Here's why they might not win.

As baseball chaplains for the Colorado Rockies and lifelong athletes, Bryan and Diane Schwartz wanted their seven kids to learn about Brooklyn Dodgers second baseman Jackie Robinson.

What they didn’t want was for their younger children to learn racist slurs like the N-word, an epithet hurled at Robinson regularly in “42,” the 2013 film about his life as the first African-American to play in the major league.

“It was an important thing for (the kids) to learn,” Diane Schwartz said. “We went to a ton of games for years and they had no idea at that age how some players had to fight just to get on the field.”

That’s when the Schwartzes heard about VidAngel, a company based in Provo, Utah that launched in 2015 and offers personalized filtering for thousands of movies available for streaming.

“We were able to skip some of the language (from the film ‘42’), but it didn’t take away from the reason we showed that movie to them,” Diane said. “There are great films I want them to be able to see, but they weren’t able to watch those and experience them because of other things that came with them.”

Like many American parents, the Schwartzes worry about their kids seeing certain kinds of content too young, whether it’s profanity, violence or sexualization infused into popular movies, TV shows and online.

VidAngel, they say, allowed them to watch movies as a family without having to sit on the edge of their seat, ready to fast forward through scenes some of their kids were too young for or they deemed inappropriate. It also opened them up to watch movies they would never have seen otherwise.

Take “Rocky,” for example, one of Bryan’s favorite movies, but a little tough in some places for his four young sons.

“The Rocky films have these redemptive, uplifting themes running through them, but you also had language, substance abuse and violence,” Bryan said. “Once we had VidAngel, we could watch them.”

To the Schwartzes, VidAngel is an indispensable tool.

To Hollywood, it’s a violation of artistic integrity and copyright. In June, a group of movie studios, including Disney and Warner Bros., filed suit against VidAngel, alleging copyright infringement. VidAngel countersued with an antitrust lawsuit in July.

“VidAngel is an unauthorized VOD streaming service, trying to undercut legitimate services like Netflix, Hulu and iTunes that license movies and TV shows from the copyright owners,” the studios said in a public statement.

VidAngel users pay $20 to stream a film from the company’s website and apply filters for content they don’t want to see — for anything from the gratuitous and violent to the annoying, like Jar Jar Binks of “Star Wars.” Once they’ve watched the movie, users then have the option to sell the movie back to VidAngel for $19 of site credit or, if they don’t sell the movie back within 24 hours, keep the digital copy of the edited film.

A court will have to decide whether the option to keep a film filtered via VidAngel might constitute the creation of a “fixed copy” — an altered version of a film forbidden under U.S. copyright law created by bypassing encryptions on copyrighted content like DVDs and Blu-Ray discs.

But VidAngel says it’s operating within a portion of copyright law called the Family Movie Act of 2005, which gives American families the right to censor movies for inappropriate content.

If VidAngel loses the lawsuit, the company may be forced to change their practices or go out of business. But the rise of the on-demand entertainment economy may mean the customization portion of what VidAngel offers is a wave of the future.

“In our age, people have the ability to control all sorts of things. They control their social communications, who their friends are, they filter out which content want to see on Facebook,” VidAngel co-founder Neal Harmon said. “So it’s natural for them to think when they own a movie they have the right to customize it and watch it the way they choose.”

Growing demand

VidAngel isn’t the first filtering service to spar with movie studios and filmmakers.

Movie editing and rental company CleanFlicks did a solid business in the early 2000s, renting edited films to customers at stores in 15 states (30 in Utah alone) at its zenith. A group of directors including Steven Spielberg sued CleanFlix for copyright infringement and the judge ruled in their favor, essentially shutting CleanFlicks down overnight in 2006.

The editing company may have lost, but the case stirred debate around the need address increasing levels of violence, sex and other objectionable material in modern entertainment. That’s how, in 2005, Congress passed an exception to U.S. copyright called the Family Movie Act. The measure, penned by Texas Rep. Lemar Smith and sponsored by Utah Sen. Orrin Hatch, allows families to filter out material they deem inappropriate.

The VidAngel case will be one of the first times the act is put to the test if it goes to court, said Washington, D.C.-based Catholic University of America copyright law professor Susanna Frederick Fischer.

“The controversy is 10 years old at least, but the addition of this exception did not end the controversy at all,” Fischer said. “The law does allow for some kind of filtering, but the question will be, what exactly does it allow?”

The limits of the family exception may not have been fully tested in court, but the market for family-friendly and values-based entertainment has, said Scott McConnell, executive director of Christian research group LifeWay Research. In studies conducted in 2013 and 2015, Lifeway surveyed more than 1,000 Americans and found that 56 percent said they wished that more movies reflected “Christian values” (25 percent said they strongly agreed with that statement). With a recent spate of Bible-themed films, 2014 was declared the “year of the Bible,” and LifeWay found in 2015 that four out of 10 Americans reported seeing a movie they described as “Christian” in the past year.

Evangelical polling firm Barna Group estimated in a study published this year that “the three in 10 Americans who are most likely to prioritize and practice their faith represent more than 70 million adults nationwide” — a large potential market for Hollywood. To be sure, filtering services accommodate religious groups who object to certain content, including Mormons, but McConnell said the option to filter movies could entice millions of secular Americans as well.

“People who are filtering may not be trying to get to the level of a Christian movie, but they’re trying to make it fit their values more and people are concerned about that,” McConnell said. “There are a lot of Americans not in the church-attending Christian space who still take an interest in movies that have what some consider traditional ‘Christian’ values.”

“There was a time when a family would sit around a single TV. Now everyone has a TV in their pocket, on a smartphone,” McConnell said. “More and more parents are thinking, ‘If I’m not there watching it with them, how can I know my kid is going to be OK?’”

Fischer sees the issue of filtering in a similar light to how iTunes revolutionized the music industry — if Hollywood attacks too hard, they may suffer in the long run, as the music business did.

Fischer says that the music industry hurt itself in the late 1990s and early 2000s when it went after people who illegally downloaded music via Napster or similar services. Rather than embracing how technology was changing their business and capitalizing on it (as Apple did with iTunes), they instead alienated music fans who felt victimized by the possibility of legal action. The result, Fischer said, was "a PR nightmare" for the industry.

“It made it look like (the music industry) were preying on the vulnerable and they had to back down," Fischer said.

It would be a stiffarm’

So, what would families like the Schwartzes do if VidAngel were to hypothetically go out of business?

In a word: Wait.

Even if services like VidAngel and Clear Play didn’t exist, the rise of on-demand entertainment will likely create the need for some sort of filtering service. As more Americans get used to watching whatever they want whenever they want, viewers will likely soon expect to be able to manipulate content as well, MIT Sloan School of Management assistant professor of technological innovation Christian Catalini said.

“(Filtering) is already happening to some extent behind the scenes because streaming is so driven by data,” Catalini said. “With artificial intelligence becoming more pervasive, I think we’ll see (A.I.) tailoring our stuff for us on the fly.”

Some entertainment companies like Netflix have already begun engaging the broad and lucrative market for shows and movies categorized as more values-oriented or family-friendly. The economy of on-demand streaming services like Netflix, Hulu or HBO Now depends on creating content that appeals to a variety of audiences, Catalini said, and programming for families or values-minded groups is no exception — even if those companies are also known for shows widely criticized for gore and sex, like “Game of Thrones.”

Netflix, for example, tracks what its users watch and adjusts their show roster accordingly.

“What they’re doing is reverse-engineering their content so people will like it,” Catalini said. “How they do it is all part of their secret sauce, but (Netflix) has a lot of information about what makes a show sticky — they’re collecting information about what users like and don’t like at different points in time. And some of that is driving their own content production.”

Netflix estimated early this year that nearly half of its 75 million users regularly watch children and family shows already available through the service. So it’s no coincidence that new titles coming to Netflix in the next few years include the Julie Andrews/Jim Henson Company collaboration “Julie’s Greenroom,” a resurrection of “The Magic School Bus” series, and five-minute bedtime videos designed to help parents get their kids to bed.

Anyone harboring doubts that family entertainment might not be profitable need look no further than the company’s reboot of 1990s family sitcom “Full House.” Rebranded “Fuller House” and boasting the majority of the original cast returning, the show hooked a staggering 14.4 million viewers across a wide demographic (ages 18-49) in little more than a month after its Feb. 26 premiere.

Translated into traditional Nielsen ratings, that makes “Fuller House” the most-watched show of the year, surpassing even AMC’s ratings-topping favorite, “The Walking Dead.” (Unsurprisingly, Netflix quickly announced another season of “Fuller House.”)

Both Catalini and Fischer think it’s unlikely content producers will ignore the demand for preference tailoring for long.

“This is a new opportunity for studios to realize that they expand their audience by making their content more personal,” Catalini said. “Whatever happens, viewers win across the board.”

The music industry tried to use litigation as a deterrent, but it ended up not working that way because it looked like they were punishing people beyond what they thought was wrong,” Fischer said.“(The entertainment industry) can’t do that again.”

That’s the outcome VidAngel and the Schwartzes are hoping for.

“It would be a stiffarm to those of us who care about what our kids are exposed to at what age,” Diane Schwartz said of the potential for VidAngel getting shut down.

“Regardless of the lawsuit, everyone is going to wind up better off from what VidAngel is doing. It benefits the studios to get the new sales and it benefits VidAngel and our customers,” VidAngel spokesman Matthew Faraci said. “In Hollywood, there’s a knee-jerk reaction against this, but it’s up to the consumer.”


Twitter: ChandraMJohnson