BMI contacted managers of Maggie’s Bar and Grill in Jackson, New Jersey, more than 80 times since October 2019 about the necessity of “purchasing a license for the public performance of musical compositions” in the BMI “repertoire,” said BMI and five music publishers in a complaint Wednesday (docket 3:23-cv-03135) in U.S. District Court for New Jersey in Trenton. Included in the letters were cease and desist notices, warning the defendants that they must “immediately cease all use of BMI-licensed music” in their establishment, it said. The plaintiffs allege six claims of willful copyright infringement, based on the defendants’ “unauthorized public performance of musical compositions” from the BMI repertoire, it said. All of the claims for copyright infringement joined in the complaint “are governed by the same legal rules and involve similar facts,” it said. “Joinder of these claims will promote the convenient administration of justice and will avoid a multiplicity of separate, similar actions” against the defendants.

The 9th U.S. Circuit Appeals Court scheduled oral argument in choreographer Kyle Hanagami’s copyright appeal against Epic Games for Aug. 16 in Anchorage at 9:30 a.m. AKDT, said a text-only notice Sunday (docket 22-55890). Though the case is scheduled for oral argument, the panel may decide to submit the case on the briefs instead, said the notice. If the court does decide oral argument is required, the parties may have the option to appear in person at the courthouse or remotely by video, it said: “At this time, an election to appear remotely by video will not require a motion. The court expects and supports the fact that some attorneys and some judges will continue to appear remotely.” Hanagami alleges Epic “unceremoniously copied” for its Fortnite franchise the most recognizable part of one of his most well-known copyrighted choreographic works, and was rewarded with the district court’s dismissal of his complaint (see 2301310037). Epic argues the district court correctly recognized that performing a dance step or simple routine or incorporating one into a new work doesn’t make someone a copyright infringer (see 2304030002).

The U.S. District Court for Southern Indiana in Indianapolis should deny the motion for leave of plaintiff Renee Gabet and her company Annie Oakley Enterprises to file a second amended trademark infringement complaint against Amazon, said Amazon’s opposition brief Monday (docket 1:22-cv-02246). Gabet and her company allege Amazon ignored the infringing conduct of its third-party sellers (see 2302160029). The plaintiffs “lack good cause for filing their motion” more than two weeks after the April 21 deadline for filing motions for leave to amend pleadings, said Amazon. Their late motion and proposed second amended complaint late motion are “a clear attempt to improperly add thousands of frivolous claims, including claims against many products plaintiffs knew about more than two years ago, before they even filed the original complaint,” it said. There’s “no good cause for waiting so long,” it said. The court should also deny the motion because the plaintiffs “are proceeding in bad faith,” it said. Their “obvious motive” isn’t to include thousands of new claims so the parties and the court can adjudicate them, “but instead to harass Amazon and demand an increased settlement,” it said. Each assertion that a different product family infringes a trademark “is a separate claim of trademark infringement,” said Amazon. Each new claim arises “from a different set of operative facts,” requiring “independent application of the seven-part likelihood-of-confusion test for trademark infringement,” it said. The plaintiffs would have the court try “literally thousands of infringement issues as to these distinct products before a single jury, perhaps in an attempt to avoid paying filing fees to redress the individual issues presented as to each allegedly infringing product,” it said. The court should also deny granting the plaintiffs leave because their proposed amendment is “futile,” it said. The proposed second amended complaint “includes scores of newly accused products that could not possibly infringe,” it said. Their late-filed motion also appears “calculated” to further delay resolution of Amazon’s motion to dismiss their first amended complaint, which Amazon filed more than a year ago, it said.

Plaintiff James Linlor’s opposition to McAfee’s motion to dismiss his amended cybersquatting complaint does little more than demonstrate that Linlor “is indeed a vexatious litigant prone to name calling and wasting judicial and party resources,” said McAfee’s reply Tuesday (docket 5:23-cv-00385) in U.S. District Court for Northern California in San Jose in support of its motion. Linlor alleges McAfee deprived him of using the Cyberguard.com internet domain to start a cybersecurity consultancy, but McAfee says it sold the domain in 2021 as part of its divestiture of the enterprise security business (see 2301310011). Dismissal of Linlor’s amended complaint with prejudice is “warranted” due to the failure of his Anticybersquatting Consumer Protection Act claim as a matter of law, said McAfee. But should the case proceed, McAfee asks that Linlor’s “vexatious behavior be curbed so that resources may be appropriately directed to substantive legal arguments,” it said.

Defendant Frolic Pictures’ California corporate license is suspended, depriving it of its ability to “defend an action brought against it,” said plaintiff Redoak Communications in its response Friday (docket 9:23-cv-80008) in U.S. District Court for Southern Florida in West Palm Beach to Frolic’s affirmative defenses (see 2305170015). Redoak alleges Frolic and 13 other defendants, including Amazon, Best Buy, Target and Walmart, sold DVD copies online of the 1981 horror film Just Before Dawn without authorization. Though Frolic has now hired an attorney who filed an appearance in the case, “there is some authority that a suspended California corporation cannot even retain an attorney to act on its behalf,” said Redoak. Should Florida law be applied, similar rules would prohibit Frolic from defending the case, it said.

Independent production company Frolic Pictures asserts its conduct was “innocent” and non-infringing when it shipped made-to-order DVD copies of the 1981 horror film Just Before Dawn to consumers who bought them online, said its answer Tuesday (docket 9:23-cv-80008) to Redoak Communications’ copyright infringement complaint in U.S. District Court for Southern Florida in West Palm Beach. Redoak alleges 14 defendants, including Amazon, Best Buy, Target and Walmart, sold the DVDs online without authorization (see 2301060023). Amazon is countersuing, alleging its conduct is protected by the first-sale doctrine. Frolic denies it ever possessed any prints or negatives of Just Before Dawn, said its answer. “The film was copied from a publicly available YouTube channel and not from any 35mm prints,” it said. “Once an order is placed by a consumer, only then is a DVD created and shipped,” it said. “No retailers were ever supplied inventory.”

U.S. Magistrate Judge Edwin Torres for the Southern District of Florida recommended YouTube's motion for summary judgment be granted, in a suit charging it with copyright infringement for hosting hundreds of classic Mexican films without permission. In a report and recommendation Tuesday (docket 1:21-cv-21698), Torres agreed with YouTube's contentions that plaintiff Athos Overseas, which holds title to the films, is putting forth an interpretation of the Digital Millennium Copyright Act that differs from the statute's plain language and applicable case law. He said Athos' argument of YouTube's supposed knowledge violates the DMCA's non-monitoring provisions. Torres rejected Athos' argument for partial summary judgment and recommended judgment be entered for the plaintiff and the case closed.

Amazon opposes the motion of plaintiff Renee Gabet and her company Annie Oakley Enterprises in their trademark infringement case against Amazon for leave to file a sur-reply opposing Amazon’s motion to strike its outside counsel, Robert Cruzen of Klarquist Sparkman, from the plaintiffs’ witness list (see 2305100028), said Amazon’s opposition brief Thursday (docket 1:22-cv-02246) in U.S. District Court for Southern Indiana in Indianapolis. Plaintiffs and their counsel “are doing it again, wrongly arguing that Amazon has filed an improper reply brief to delay a ruling on a motion that calls out plaintiffs’ improper tactics,” said Amazon. “Amazon filed its motion to strike to remedy plaintiffs’ and their counsel’s harassing and unprofessional conduct,” it said. The plaintiffs and their counsel “now double down with a gambit already soundly rejected by the Northern District of Indiana in this case,” it said. The plaintiffs’ motion for leave “fails to justify a sur-reply and should be denied,” it said. The court also should warn the plaintiffs and their counsel “of certain consequences for continued misconduct,” it said. Amazon’s motion to strike is “ripe for resolution,” and the court shouldn’t “countenance” the plaintiffs’ efforts to delay the court’s consideration of it, it said.

BMI contacted officers of an establishment in Metairie, Louisiana, called the Max Lounge, at least 30 times since December 2021 to educate them about their obligations under the Copyright Act to buy a license for the public performance of musical compositions in the BMI repertoire, but to no avail, alleged BMI and five music publishers in a complaint Wednesday (docket 2:23-cv-01561) in U.S. District Court for Eastern Louisiana in New Orleans. Included in the correspondence were cease and desist letters putting the defendants on “formal notice” they must immediately cease all use of BMI-licensed music in the establishment, said the complaint. The plaintiffs allege five claims of willful copyright infringement, based on the defendants’ unauthorized public performance of musical compositions from the BMI repertoire, it said. All the claims for copyright infringement joined in the complaint are “governed by the same legal rules and involve similar facts,” it said. “Joinder of these claims will promote the convenient administration of justice and will avoid a multiplicity of separate, similar actions” against the defendants, it said.

Renee Gabet and her company Annie Oakley Enterprises, plaintiffs in the trademark infringement lawsuit against Amazon, seek leave to file a sur-reply opposing Amazon’s motion to strike its outside counsel, Robert Cruzen of Klarquist Sparkman, from the plaintiffs’ witness list (see 2304120004), said their motion Tuesday (docket 1:22-cv-02246) in U.S. District Court for Southern Indiana in Indianapolis. Amazon’s reply to the plaintiffs’ opposition to the motion to strike “makes new arguments that it should have made” in its original motion, and it “misstates the law,” said the motion. Amazon’s claim that other Amazon employees have the same knowledge as Cruzen is contradicted by Amazon’s own interrogatory answers during discovery, it said. Cruzen remains the only person known to the plaintiffs with “knowledge on crucial issues,” it said. Amazon bears the burden of proving other Amazon employees had the same knowledge as Cruzen, “and it offers no such evidence,” it said. Putting Amazon’s lack of evidence aside, Cruzen “designated himself the point person for receiving details of accused infringement,” it said. “If Cruzen shared this with Amazon employees, Amazon should have identified those employees in its interrogatory answers,” it said. Gabet and her company allege that Amazon turns a blind eye to the trademark infringement taking place under its watch.