The opposition of 54 record labels and music publishers to Altice USA’s motion to dismiss their copyright infringement complaint (see 2401300001) “concedes much of what makes their legal claims so untenable,” said Altice’s reply Tuesday (docket 2:23-cv-00576) in U.S. District Court for Eastern Texas in Marshall in support of that motion. The labels and publishers allege that Altice has knowingly contributed to, and reaped “substantial profits” from, massive copyright infringement committed by thousands of its internet subscribers. On their direct infringement claims, the plaintiffs “admit they make no specific allegations that anyone transferred an infringing file to anyone else at any time,” said Altice’s reply. “At most, they allege the circumstantial possibility that users used Altice internet to infringe at unidentified times, not that any particular infringing act plausibly occurred on Altice’s network,” it said. On their claims of reproduction of any infringed works, the plaintiffs “admit they can point only to an anonymous user’s mere possession of a file, which could have occurred at any time, using any internet connection,” it said. As for distributions, the plaintiffs “vaguely allege” that their vendor confirmed that a subscriber began to distribute a file, “which at most alleges that the subscriber transmitted some packets of data, not a useable, infringing file,” it said. The plaintiffs’ whole case “is built on the allegation that infringing files were made available, a theory that could never sustain their claims as a matter of law,” it said. On their contributory infringement claims, the plaintiffs “lay their theory bare” said Altice’s reply. If Altice receives as few as two notices alleging that an anonymous person used an Altice internet connection to infringe, even years apart, they allege that Altice has knowledge that someone will use this same connection to infringe again, “and culpably contributes to all such future infringement merely by not cutting the cord on an entire household or business,” it said. Common sense and U.S. Supreme Court case law “both foreclose that theory,” it said. On their vicarious liability claim, the plaintiffs “brush aside” the Feb. 20 decision in the 4th U.S. Circuit Appeals Court in Sony Music Entertainment v. Cox Communications (see 2402210027), “which offers point-for-point refutation of the same theory of direct financial benefit” to Altice that the plaintiffs offer here, it said. “They also fail to explain how Altice’s bare right to terminate entire households and businesses from the internet is the equivalent of a right and ability to supervise millions of internet users’ activities online,” it said: “The motion should be granted.”

The 4th U.S. Circuit Court of Appeals should deny Cox Communications’ motion for the four dozen record labels and music publisher plaintiff-appellees in its appeal to pay Cox's appellate costs, said their response in opposition Monday (docket 21-1168). A district court jury found Cox liable for willful infringement of more than 10,000 of the plaintiffs’ copyrighted works, it said. On appeal, a 4th Circuit panel upheld one basis of liability and remanded for further proceedings on statutory damages (see 2402210027), it said. “Yet Cox now wants the holders of those infringed copyrights to pay Cox’s appellate costs,” including half the costs of the supersedeas bond that Cox used to secure the jury’s damages award, plus nearly $2,100 in filing and printing costs, it said. The 4th Circuit should hold that the parties are responsible for their own costs, it said. Cox’s request for bond costs “fails at the outset,” it said. “Cox’s request proceeds from the fundamentally incorrect premise that it is a prevailing party,” it said. It isn’t because the panel “affirmed the jury’s liability finding,” it said. Though the damages award was vacated, that same award, or more for that matter, “could be reimposed for Cox’s willful contributory infringement on remand,” it said. In a “mixed-result appeal” like this one, courts customarily hold the parties to their own costs, it said. Cox’s bill of cost also is “wildly inflated,” it said. At most, Cox can recover $548.70 in filing and printing costs, it said. Meanwhile, the 4th Circuit, in an order Tuesday, denied the plaintiffs’ petition for rehearing or rehearing en banc of the panel’s Feb. 20 reversal of the jury’s vicarious liability verdict against Cox (see 2403060028), and Cox’s petition for rehearing of the panel’s affirmation of the jury’s finding of willful contributory copyright infringement (see 2403070003). No judge requested a poll under Federal Rule of Appellate Procedure 35 on the petitions for rehearing en banc, said the order, which was entered at the direction of the panel of Circuit Judges Pamela Harris, Allison Jones Rushing and Henry Floyd.

Library IV, a steak and seafood restaurant in Williamstown, New Jersey, and owner Brian O’Keeney are guilty of six claims of willful copyright infringement, based on their unauthorized public performance of musical compositions from the BMI repertoire, alleged BMI and six music publishers in a complaint Friday (docket 3:24-cv-02042) in U.S. District Court for New Jersey in Trenton. The claims for copyright infringement joined in the complaint "are governed by the same legal rules and involve similar facts," said the lawsuit. Joinder of these claims “will promote the convenient administration of justice and will avoid a multiplicity of separate, similar actions” against O’Keeney and his restaurant, it said. BMI has reached out to O’Keeney and his restaurant more than 50 times since February 2023 in an effort to educate them about their obligations under the Copyright Act “with respect to the necessity of purchasing a license for the public performance of musical compositions” in the BMI repertoire, it said. Included in the letters were cease and desist warnings, providing them with formal notice that they must immediately cease all use of BMI-licensed music in the establishment, it said.

Microsoft submitted as supplemental authority a March 1 order denying Tremblay v. OpenAI plaintiffs' motion to enjoin OpenAI and Microsoft from defending themselves in the four copyright infringement cases pending in the U.S. District Court for Southern New York (see 2403040018), said Microsoft’s letter Thursday (docket 1:24-cv-00084) to U.S. District Judge Sidney Stein in Manhattan. The order, by U.S. District Judge Araceli Martinez-Olguin for Northern California in San Francisco, said the Tremblay plaintiffs “pointed to no authority allowing the court to enjoin OpenAI from defending against litigation in a second district court case." Microsoft has joined with the plaintiffs in the four New York actions to oppose the Tremblay plaintiffs' motions to dismiss those cases or transfer them to San Francisco.

In light of settlement discussions that appear to be “ongoing” between BMI and Maggie’s Bar & Grill in Jackson, New Jersey, U.S. Magistrate Judge Tonianne Bongiovanni for New Jersey in Trenton ordered the parties to submit an additional status update regarding those settlement talks by April 10, said her text order Wednesday (docket 3:23-cv-03135). BMI contacted the restaurant’s managers 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 the June 7 complaint from BMI and five music publishers (see 2306080044). They allege six claims of willful copyright infringement against the establishment, based on its “unauthorized public performance of musical compositions.”

U.S. District Judge Sara Lioi for Eastern Ohio in Akron granted default judgment in favor of BMI and eight music publishers for the copyright infringement conduct of the Whiskey Stop Bar & Grill in Louisville, Ohio, and its owner Scott Kelly, said her signed order Tuesday (docket 5:23-cv-01889). The judge awarded the plaintiffs $22,939.55 in damages and attorneys' fees, plus interest, and permanently enjoined the defendants from further infringing the plaintiffs' musical compositions. The plaintiffs alleged six claims of willful copyright infringement, based on the defendants’ unauthorized public performance of musical compositions from the BMI repertoire (see 2309290002).

U.S. District Judge Araceli Martinez-Olguin for Northern California in San Francisco denied plaintiffs’ motion to enjoin OpenAI from defending an Authors Guild copyright infringement action against them in the Southern District Court of New York (see 2402230065), said her Friday order (docket 3:23-cv-03223). On Feb. 8, three weeks after the SDNY defendants stated their intent not to transfer those cases to California, plaintiffs filed the motion asking the Northern California court to enjoin OpenAI from proceeding in subsequently filed actions, including those brought by Authors Guild, Sancton and The New York Times Co. Plaintiffs Paul Tremblay et al brought claims against various OpenAI entities in the Northern District of California; on Sept. 19, the Authors Guild sued OpenAI in New York district court on similar allegations. On Feb. 16, Martinez-Olguin signed an order consolidating Tremblay v. OpenAI Inc. et al, Sarah Silverman et al v. OpenAI and Michael Chabon et al v. OpenAI after parties agreed consolidation of the actions would advance the just and efficient progress of the litigation. The actions assert the defendants violated the plaintiffs’ rights under the Digital Millennium Copyright Act by removing copyright management information (CMI) from plaintiffs’ infringed works and redistributing those works via ChatGPT without CMI or with false CMI. Plaintiffs in In re: OpenAI ChatGPT Litigation are due to file a consolidated complaint by March 13. The judge’s Friday order said plaintiffs have “pointed to no authority allowing the court to enjoin OpenAI from defending against litigation in a second district court case." Though plaintiffs cited a 9th U.S. Circuit Court of Appeals case holding that a district court with jurisdiction over all parties “may enjoin later filed actions,” the plaintiffs “fail to address how the requested injunction would work on a practical level, as the requested injunction would permit the plaintiffs in the Authors Guild Action to continue prosecuting their case while OpenAI would be unable to defend the action,” said Martinez-Olguin. She also denied as moot their motion to shorten time to hear the motion.

Plaintiffs in the two consolidated copyright infringement cases against Microsoft and OpenAI in the Southern District of New York oppose a motion by plaintiffs in the first-filed copyright infringement suit against OpenAI in the Northern District of California to intervene and to dismiss the SDNY cases (see 2402140028), said their opposition Tuesday (dockets 1:23-cv-08292 and 1:23-cv-10211). The SDNY actions “have progressed quickly and efficiently,” said 29 author plaintiffs in their opposition. The pleadings are settled, discovery is underway and summary judgment “will be fully briefed this time next year,” it said. The proposed intervenors “seek to slow that progress -- or end it -- all so that they can exercise control over any case alleging copyright infringement against OpenAI,” it said. The proposed intervenors “are a different group of copyright owners” who filed a separate action against OpenAI in the Northern District of California, it said. Those 14 plaintiffs haven’t sued Microsoft, it said. “The class they seek to represent consists of all owners of copyrights -- registered or unregistered -- whose content was used to train OpenAI’s models,” it said. Because no class has been certified in their case, the proposed intervenors, as of today, “represent only themselves,” it said.

Microsoft conditionally opposes the Feb. 12 motions of the 14 plaintiffs in the first-filed copyright infringement suit against OpenAI in the Northern District of California to intervene in and to dismiss the four actions against OpenAI and Microsoft filed subsequently in the Southern District of New York (see 2402140028), said Microsoft’s opposition Monday (docket 1:23-cv-08292). The California plaintiffs alternatively seek to stay the four SDNY cases or transfer them to California. Microsoft is a defendant in each of the SDNY cases but not in the California case, said its opposition. The California plaintiffs “remarkably do not mention” that fact in their motions, said Microsoft. Were all the plaintiffs in the California and New York actions to agree that Microsoft should be dismissed with prejudice “so that the remaining common parties can facilitate complete consolidation of those matters,” Microsoft wouldn’t object, it said. But on the assumption that the plaintiffs in the New York actions aren’t amenable to dismissing Microsoft with prejudice, it opposes the relief sought by the California plaintiffs, Microsoft said. Its opposition is “for the simple reason that it is defending the cases brought against it in the jurisdiction where those cases were filed,” it said. Microsoft is doing so “with deliberate speed and pursuant" to the 2nd U.S. Circuit Court of Appeals’ "instructions regarding the handling of copyright class actions,” it said. The California plaintiffs’ motions should be “seen as what they plainly are: jockeying for position among putative class counsel in two separate jurisdictions,” it said. Though there may come a time when one court or the other has to address that dispute, that “turf war” involves the procedural step of class certification, it said. The 2nd Circuit has instructed that class certification should follow summary judgment rather than precede it, said Microsoft. The issue may not arise at all as to Microsoft if the court agrees with its fair use defenses. The 2nd Circuit has recognized that those summary judgment defenses should come first “in order to preserve judicial resources by potentially rendering class certification proceedings unnecessary,” it said.

Author Martin Yate violated the terms of a May 2017 publishing agreement with Simon & Schuster governing the physical and electronic distribution of his book, Knock 'em Dead: The Ultimate Job Search Guide, alleged S&S’s counterclaim Tuesday (docket 1:23-cv-12896) in U.S. District Court for Massachusetts in Boston. Yate’s Nov. 29 complaint alleged that S&S took his career and business management titles it published and turned them into collections, without Yate’s knowledge and without paying him royalties (see 2311300010). S&S alleges that under the 2017 agreement, Yate granted S&S the exclusive right to publish, reproduce and distribute Knock 'em Dead and its derivatives in print and electronic formats, and to exercise and grant to third parties any rights to the book throughout the world, said the counterclaim. But Yate began offering the book for sale on his own website in violation of the exclusive rights granted to S&S under the agreement, it said. When S&S confronted Yate about the violation, Yate password-protected his website, it said. Yate’s conduct “constitutes a material breach” of the agreement. His breach of contract caused S&S damages for which Yates is liable, it said.