Epic Games is trying to “flip the script” when it argues that it’s not “the blatant copying and reselling of choreographic works that would harm choreographers,” but the choreographers’ “attempt to enforce their rights that harms them,” said choreographer Kyle Hanagami’s reply brief Friday (docket 22-55890) at the 9th U.S. Circuit Court of Appeals. “Epic should have to actually prove such a spurious claim,” said the brief. Hanagami is seeking to set aside the district court’s dismissal of his claims that Epic stole his copyrighted dance moves for its Fortnite franchise (see 2301310037). Epic argued in its answering brief that the dismissal was “consistent” with the Copyright Act, 9th Circuit case law and Copyright Office regulations (see 2304030002). But Epic doesn’t “adequately address” the district court’s “erroneous application of the extrinsic test portion of the substantial similarity test for copyright infringement,” said Hanagami’s reply. The district court “appears to have held, when applying the extrinsic test, that anyone can copy a choreographic work as long as they fall short of copying the entirety of that work,” it said. “This is a misapplication of the extrinsic test, which was meant to filter out situations where there is obviously no infringement.” The extrinsic test wasn’t meant “to give a free pass to those who happen to copy less than the totality of a work,” it said. Epic doesn’t address that, but instead “focuses its argument on whether or not the specific dance steps that Epic misappropriated here should be entitled to copyright protection,” it said. The district court “accepted Epic’s main argument that the infringed portion of the work must, standing alone, qualify for copyright protection,” it said. But neither Epic nor the district court’s decision provides “any justification for such a limit on the ability of choreographers to protect their work,” it said.

McAfee’s motion to dismiss pro se plaintiff James Linlor’s first amended complaint is due May 2, with his opposition due May 16, said an order signed Wednesday by U.S. Magistrate Judge Susan van Keulen for Northern California in San Jose (docket 5:23-cv-00385). McAfee’s reply in support of its motion to dismiss is due May 23, said the order. She scheduled a videoconference hearing on the motion to dismiss for 10 a.m. PDT June 6. Linlor alleges McAfee “cybersquatted” on his cyberguard.com internet domain, depriving him of the chance to develop his own similarly named cybersecurity consultancy (see 2301310011). McAfee counters that Linlor is suing the wrong defendant because it divested itself of the cyberguard.com domain in 2021 when it decided to refocus its cybersecurity efforts on the consumer market.

Defendant McAfee falsely claims it’s the wrong defendant in pro se plaintiff James Linlor’s cybersquatting lawsuit, said Linlor’s opposition Tuesday in U.S. District Court for Northern California in San Jose to McAfee’s March 29 motion to dismiss his complaint (see 2303300002). Linlor alleges McAfee is cybersquatting on his cyberguard.com internet domain name and preventing him from pursuing a similarly named cybersecurity consultancy. McAfee’s motion to dismiss contends that Linlor knows it sold the domain to Musarubra in July 2021 as part of its strategy to divest all its enterprise businesses and concentrate on cybersecurity protection for consumers. But McAfee provides an “unverifiable” statement of transfer of the cyberguard.com domain to Musarubra that’s “overcome” by ICANN data, said Linlor’s opposition. On McAfee’s motion for a declaration from the court that Linlor is a “vexatious” litigant under the California Code of Civil Procedure, Linlor doesn’t meet the “requirements” to be listed as a vexatious litigant anywhere, it said. Linlor has been waiting for the San Diego Superior Court to remove his name from its vexatious litigant list, having appeared on the list based on false evidence that since was reversed, it said. Before the McAfee lawsuit, Linlor hadn’t filed any cases in California courts since 2017, nor does he have a history of “unwarranted litigation,” it said.

Adult film producer Strike 3 Holdings filed 98 copyright infringement lawsuits, including over a dozen in U.S. District Court for Southern New York, from Friday to Monday, suing defendants identified only by the name John Doe and their IP addresses. Strike 3 says its paid subscriber base is one of highest of adult content sites globally, and its motion pictures are “among the most pirated content in the world.” A Friday complaint in U.S. District Court for the District of Minnesota alleges John Doe, with IP address 24.118.118.215, is stealing its works “on a grand scale.” Doe uses the BitTorrent peer-to-peer file-sharing protocol to commit “rampant and wholesale copyright infringement” by downloading the company’s movies and distributing them to others, the complaint (docket 0:23-cv-01014) said. Doe has recorded 29 infringing movies “over an extended period of time.” A John Doe at IP 74.72.25.42 was sued in New York Monday for allegedly pirating 92 titles, said a complaint (docket 1:23-cv-03189). Though the defendant Does “attempted to hide" their theft by downloading content anonymously, their ISPs, Comcast and Spectrum, “can identify Defendant through his or her IP address," said the complaints. Strike 3 “intentionally omitted the title of the work from this public filing due to the adult nature of its content,” but it can provide the works’ titles “to the Court or any party upon request,” it said in the complaints. Strike 3 used IP address online geolocation fraud detection tools Maxmind GeoIP, used by federal and state law enforcement, to determine that John Does' IP addresses traced to a physical address in a particular district, it said. Maxmind’s accuracy is 99.8% accurate on a country level, 90% accurate on a state level in the U.S. and 86% accurate to cities within the United States, the complaint said. BitTorrent enables users to interact directly with each other to distribute a large file without taxing any individual source computer or network, said the complaint. That enables Strike 3’s motion pictures, many filmed in high resolution, to be transferred quickly and efficiently, the complaint said. Strike 3 created an infringement detection system, VXN Scan, that establishes direct TCP/IP connections with defendants’ IP addresses and can identify portions of pirated videos, the complaint said. The system doesn’t upload content to a BitTorrent user but captures transactions from infringers sharing specific pieces of digital media files that have been determined to be at least “substantially similar” to a Strike 3 copyrighted work, it said.

McAfee asks that its lead counsel attend a May 9 hearing remotely on McAfee’s motion to dismiss plaintiff James Linlor’s cybersquatting complaint and Linlor’s motion to transfer the case to Delaware (see 2304130032), said its administrative motion Monday (docket 5:23-cv-00385) in U.S. District Court for Northern California in San Jose. Lead counsel for McAfee, Shannon Teicher and Devanshi Somaya of Jackson Walker, are based in Dallas, said the motion. Somaya is unable to travel to California for medical reasons. Teicher will be available to attend the hearing in person if the court denies the motion. Local counsel for McAfee will attend the hearing in person, it said. Linlor alleges McAfee is cybersquatting on his cyberguard.com internet domain name and preventing him from pursuing a similarly named cybersecurity consultancy. McAfee maintains it isn’t the proper defendant for Linlor’s claims because it sold the domain to Musarubra in July 2021 as part of its strategy to divest all its enterprise businesses and concentrate on cybersecurity protection for consumers.

U.S. Magistrate Judge Kendra Klump for Southern Indiana in Indianapolis signed an order Tuesday (docket 1:22-cv-02246) granting the joint discovery motion in the trademark infringement lawsuit that Renee Gabet and her Annie Oakley Enterprises brought against Amazon. The plaintiffs allege Amazon ignored the infringing conduct of its third-party sellers (see 2302160029). Electronic delivery of discovery materials is to be complete by April 24, and all meet-and-confer efforts on any discovery requests are suspended until April 26, said Klump’s order. That’s the date when each side will provide the other “with a written description regarding any discovery response deficiencies that they would like to confer about on April 28,” said the order. The status conference currently scheduled for May 1 is rescheduled for May 5 at 2 p.m., it said.

U.S. District Judge Kenneth Marra for Southern Florida in West Palm Beach signed an order Monday (docket 9:23-cv-80008) denying without prejudice the Redoak Communications motions for default judgment against defendants Ronin Flix and Grindhouse Video for unlawfully selling unlicensed DVD and Blu-ray copies online of the 1981 horror film Just Before Dawn (see 2301060023). Redoak told the court in a March 22 evidentiary hearing it seeks $150,000 in statutory damages from each defendant but provided no evidence of willful infringement either at the hearing or in a supplemental brief, said the order. The court can’t consider Redoak’s motions without either holding another evidentiary hearing or permitting Redoak to submit evidence to support the facts it alleges, it said.

U.S. District Judge Colm Connolly for Delaware denied Nimitz Technologies’ motion for reconsideration of his April 4 show-cause order asking why the company shouldn’t be sanctioned for its failure to comply with his Nov. 10 order (see 2304110044), in an oral order Tuesday (docket 1:21-cv-01247). The Nimitz motion “lacks merit,” said the judge. The November order demanded production of Nimitz bank records, emails and other materials for Connolly’s investigation into whether third-party funding contributed to the filing of four Nimitz patent infringement lawsuits. Nimitz asserted it was under no obligation to produce the materials until the U.S. Appeals Court for the Federal Circuit issued a mandate of its denial of mandamus relief. Connolly said the Federal Circuit’s denial of the Nimitz petition without an opinion itself constituted a mandate.

U.S. District Chief Judge Colm Connolly for Delaware canceled Tuesday’s scheduled appearance of Nimitz Technologies’ outside counsel, George Pazuniak of O’Kelly & O’Rourke, to show cause why he and the company shouldn’t be sanctioned for their failure to comply with the judge’s Nov. 10 order bank records, emails and other materials. Pazuniak responded Thursday to the April 4 show-cause order by producing, in camera, materials Connolly demanded for his investigation into whether any third-party funding contributed to the filing of Nimitz patent infringement lawsuits against Bloomberg, BuzzFeed, Cnet and Imagine Learning (see 2304070038). Pazuniak stood by his assertions, in a motion for reargument Monday (docket 1:21-cv-01247), that he wasn’t free to produce the materials for Connolly until the U.S. Appeals Court for the Federal Circuit produced a mandate in connection with its denials of Pazuniak’s petitions for mandamus relief. Connolly’s show-cause order asserted the Federal Circuit’s denial of his petition without an opinion constituted a mandate. Pazuniak regrets “if there is any misunderstanding as to the obligation to comply” with Connolly’s Nov. 10 production order, said his motion for reargument. “However, in view of the facts and law, Nimitz and its counsel were not required to have delivered to the Court the documents which the Court requested, or, at least, reasonably believed that they had no such obligation until a mandate was issued,” it said. “Given that the required production was unprecedented in requiring production of communications which were protected by the attorney-client privilege, Nimitz and its counsel acted properly and ethically in not voluntarily producing the documents earlier.”

Nimitz Technologies’ outside counsel George Pazuniak of O’Kelly & O’Rourke responded Thursday to the April 4 show-cause order of Senior U.S. District Judge Colm Connolly for Delaware by producing, in camera, the emails, bank records and other materials Connolly demanded in his Nov. 10 order. Connolly ordered the production of the materials for his investigation into whatever third-party funding may have contributed to the filing of four Nimitz patent infringement lawsuits against Bloomberg, BuzzFeed, Cnet and Imagine Learning (see 2212060020). Pazuniak resisted the November order while he unsuccessfully sought mandamus relief on attorney-client privilege grounds from the U.S. Court of Appeals for the Federal Circuit. Connolly’s show cause order demanded that Pazuniak appear before him in person April 11 and be prepared to explain why he and Nimitz shouldn’t be sanctioned for their failure to comply with the November order for the materials (see 2304050023). It’s unclear whether Pazuniak’s sudden production of the materials will be enough to placate Connolly or whether he will still appear before the judge to explain why the noncompliance lasted for nearly two months after the Federal Circuit last denied Pazuniak's request for mandamus relief. The materials production “is made without prejudice to Nimitz’ continuing objection to the production of documents which are protected by the attorney-client privilege, and to the requirement to produce any documents,” said Pazuniak's signed submission Thursday (docket 1:21-cv-01247).