RCN Telecom Services and RCN of Massachusetts, in their May 13 motion to dismiss Screen Media Ventures’ Digital Millennium Copyright Act complaint (see 2405140031), don’t deny “the basic elements of liability” under the DMCA, said SMV's opposition brief Monday (docket 3:23-cv-23356) in U.S. District Court for New Jersey. SMV’s complaint alleges that RCN’s subscribers, or those using their subscriptions, use software such as BitTorrent to infringe SMV’s “exclusive rights of reproduction and distribution” (see 2312290005). The defendants also don’t deny receiving thousands of notices of infringement related to SMV’s and other rights’ holders works, nor do they deny failing to take any action to terminate known infringers from using RCN’s network “to perpetuate this mass infringement,” it said. They also don’t deny “having the means and control to easily prevent such activity, for which they are legally responsible,” it said. RCN “disingenuously argues” that because certain “unknown and unidentified hypothetical persons” who aren’t its subscribers could have used its services to infringe SMV’s works, the complaint doesn’t state a claim that the defendant’s subscribers infringed the plaintiff’s works, said the opposition. This “shot in the dark” attempt to raise factual issues to cast doubt on the sufficiency of allegations of direct copyright infringement is wrong “both procedurally and substantively,” it said. Procedurally, at the pleading stage, factual allegations are taken to be true, it said. Substantively, the issue is the use of RCN’s network and services “to commit acts of infringement known to RCN,” it said. Thus, SMV’s factual allegations that users with IP addresses belonging to the defendant infringed the plaintiff's works “must be taken as true and are well-pled,” it said. SMV’s further speculative allegations that some individuals who aren’t subscribers but still used RCN’s services to infringe SMV’s copyrighted works also don’t diminish “the well-pleaded facts that thousands of illegal downloads by subscribers did occur on RCN’s network,” it said.

Thursday’s announcement that Twitch will partner with major and independent record labels to enable DJs to livestream most popular music in a first-of-its-kind revenue-sharing arrangement exposes the hypocrisy of the labels’ defenses to the claims brought by DJ Erik Mishiyev, said his notice Thursday (docket 8:23-cv-01942) in U.S. District Court for Middle Florida in Tampa. Mishiyev contends his YouTube channel was terminated as a result of fraudulent takedown notices in which seven labels alleged that certain videos he posted infringed the labels’ copyrighted works under the Digital Millennium Copyright Act. In their motion to dismiss Mishiyev’s first amended complaint, the labels argue that the plaintiff is unable to allege any facts that would demonstrate that the defendants knowingly and materially misrepresented that Mishiyev’s videos were infringing (see 2401170051).

Shopify merchant Marcus Burman, through his agent, Saqlain Saleem, repeatedly lied to Shopify in a “brazen scheme” to permanently disable a competitor's content by unlawfully exploiting the Digital Millennium Copyright Act’s takedown procedures, alleged Shopify’s complaint Tuesday (docket 1:24-cv-00537) in U.S. District Court for Western New York. Burman, a resident of Sweden, and Saleem, a resident of Pakistan, sent Shopify notices of alleged infringement, charging that the competitor was infringing Burman’s copyrights, said the complaint. The competitor challenged the infringement claims via counter notices, it said. In light of those counter notices, Burman and Saleem knew that Shopify, following the DMCA’s procedures, “would reinstate the competing content absent litigation,” it said. But rather than file the required lawsuit, Burman and Saleem instead falsely told Shopify that they had done so, it said. They even forged court orders and other legal documents and submitted them to Shopify “as evidence to bolster their lie so that Shopify would not reinstate the competitor’s content,” it said. Their scheme worked initially, said the complaint. Shopify disabled the competitor’s content and suspended the competitor’s online store, it said. But through subsequent investigation, Shopify “uncovered the fraud,” reversed the effects of the fraudulent scheme, and now seeks damages, it said. The DMCA “immunizes online service providers" from claims of copyright infringement based on materials uploaded to the services by users, if the services promptly remove allegedly infringing materials upon receipt of takedown notices from copyright holders, it said. When a targeted user receives a takedown notice that it contends is incorrect, it may file a counter notice to have the disputed content restored, it said. The disputed content will be restored after a two-week waiting period, unless the party that submitted the takedown notice informs the service provider that it has filed a lawsuit seeking to halt the infringing activity, it said. For this procedure to operate effectively, the DMCA “requires honesty in parties’ communications with service providers,” said the complaint. Service providers don’t know if parties are lying about infringement claims, defenses to those claims, or supposed litigation, “and they remove or restore disputed content in reliance on all parties communicating truthfully,” it said. To ensure that “veracity,” the DMCA includes a provision “authorizing those aggrieved by false representations of infringement to bring an action against the responsible party for damages,” it said. Shopify’s complaint against Burman and Saleem “seeks to enforce that provision and obtain redress” for the defendants’ fraud, it said.

Screen Media Ventures’ Dec. 27 complaint against RCN Telecom Services for secondary copyright infringement and secondary liability under the Digital Millennium Copyright Act (see 2312290005) is the latest development in SMV’s quest “to add itself and hundreds of its works to an unrelated copyright action,” said RCN’s motion to dismiss Monday (docket 3:23-cv-23356) in U.S. District Court for New Jersey. That unrelated action, Bodyguard Productions v. RCN Telecom Services (docket 3:21-cv-15310), was filed in the same district nearly three years ago. SMV’s complaint alleges that RCN’s subscribers, or those using their subscriptions, use software such as BitTorrent to infringe SMV’s “exclusive rights of reproduction and distribution.” Whatever the plaintiff’s motivation may be for seeking to join or consolidate this action with Bodyguard, its claims can’t survive a motion to dismiss because they are time-barred, said RCN’s memorandum of law in support of its motion to dismiss. All SMV’s claims are subject to a three-year statute of limitations, and SMV expressly alleges that the underlying acts of copyright infringement and violations of the DMCA occurred as early as August 2018, said the memorandum. The plaintiff doesn’t allege that any relevant act of infringement or violation of the DMCA “occurred within the limitations period,” it said. SMV’s secondary liability claims should be dismissed “for a host of other reasons as well,” it said. The U.S. Supreme Court recently recognized, in its 2023 decision in Twitter v. Taamneh, that it would run roughshod over the typical limits on tort liability to effectively hold any sort of communication provider liable for any sort of wrongdoing merely for knowing that the wrongdoers were using its services and failing to stop them, it said. That principle, which is consistent with decades of Supreme Court jurisprudence on secondary liability, “forecloses” SMV’s claims here, said the memorandum. The plaintiff has also failed to allege facts supporting necessary elements of its claims for contributory and vicarious liability, it said.

Snopes Media displayed without permission or authorization a photo of Ivana Trump’s grave at Trump National Golf Club in Bedminster, New Jersey, alleged a copyright infringement complaint (docket 3:24-cv-00762) Monday in U.S. District Court for Southern California in San Diego. Photographer Daniel McKnight of New York published the photo of the grave on July 28, 2022, personally selecting the subject matter, timing, lighting, camera angle, perspective, depth, lens and camera equipment used to capture the image; the photo was registered by the U.S. Copyright Office on Sept. 26, it said. Fact-checking website Snopes.com displayed the photo as part of an online story on Aug. 23 without permission, it alleged. The infringement includes a URL for a “fixed tangible medium of expression that was sufficiently permanent or stable to permit it to be communicated for a period of more than a transitory duration and therefore constitutes a specific infringement,” it said. Upon information and belief, the infringement increased traffic to the website and caused Snopes to realize an increase in its advertising revenue, and a “large number of people have viewed the unlawful copies," it said. Snopes didn’t respond to McKnight’s letter addressing the copyright infringement and continues to infringe on his work, it said. The plaintiff seeks actual damages and disgorgement of all Snopes’ profits attributable to the infringement, plus statutory damages and litigation fees.

The U.S. Circuit Appeals Court for the D.C. Circuit apportioned 10 minutes per side in oral argument scheduled for May 6 in the appeal that challenges the anti-circumvention and anti-trafficking provisions of the Digital Millennial Copyright Act on First Amendment grounds (see 2403250045), said a clerk’s order Tuesday (docket 23-5159). The appeal is being heard by a panel comprised of Circuit Judges Karen LeCraft Henderson, Patricia Millett and Cornelia Pillard, said the order. Plaintiff-appellants Matthew Green, an associate professor at the Johns Hopkins Information Security Institute, Andrew Huang, an electrical engineer and hacker, and Alphamax, a video processing platform company, seek to reverse the lower court’s June 2019 dismissal of their case (see 2311300055). The appellants want to engage in certain activities, but fear they will be prosecuted under the provisions of the DMCA, and so they brought a pre-enforcement challenge to those provisions on First Amendment grounds.

Plaintiffs Dish Network and Sling TV and defendant Joyce Berry agree to dismiss, without prejudice, the pending Digital Millennium Copyright Act claims against Berry for her role in running an illegal streaming service, said their joint stipulation of dismissal Wednesday (docket 4:23-cv-01136) in U.S. District Court for Northern Texas in Dallas. “All other parties to the lawsuit remain,” said the stipulation. The Nov. 9 Dish-Sling complaint alleged that Berry and her co-defendant, John Magembe, profited from the operation of an illicit streaming service called Beast TV, also known as Channels4Cheap, that captured and retransmitted Dish and Sling content without authorization by circumventing Dish and Sling security measures (see 2311130030).

The U.S. Circuit Appeals Court for the D.C. Circuit scheduled oral argument for May 6 at 9:30 a.m. in the appeal that challenges the anti-circumvention and anti-trafficking provisions of the Digital Millennial Copyright Act on First Amendment grounds, said a clerk’s order Monday (docket 23-5159). The composition of the three-judge argument panel will be disclosed about a month in advance, said the order. A separate order will be issued about the allocation of time for argument, it said. Plaintiff-appellants Matthew Green, an associate professor at the Johns Hopkins Information Security Institute; Andrew Huang, an electrical engineer and hacker; and Alphamax, a video processing platform company, seek to reverse the lower court’s dismissal of their case (see 2311300055). The appellants want to engage in certain activities but fear they will be prosecuted under the provisions of the DMCA, and so they brought a pre-enforcement challenge to those provisions on First Amendment grounds.

Lacking any “real grounds” for dismissal, OpenAI devotes much of its Feb. 26 motion to dismiss the New York Times’ copyright infringement complaint (see 2312270044) “to grandstanding about issues on which it hasn’t moved,” said the Times’ memorandum of law Monday (docket 1:23-cv-11195) in opposition. OpenAI’s motion introduces no fewer than 19 “extrinsic documents,” none of which can be properly considered in a motion to dismiss, “in a submission that for nearly 10 pages reads more like spin than a legal brief,” it said. OpenAI’s “attention-grabbing claim” that the Times hacked its products “is as irrelevant as it is false,” it said. As the complaint makes clear, the Times “elicited examples of memorization by prompting GPT-4 with the first few words or sentences of Times articles,” it said. That work was necessary only because OpenAI doesn’t disclose the content it uses “to train its models and power its user-facing products,” it said. Yet in OpenAI’s telling, the Times engaged in wrongdoing by detecting OpenAI’s theft of the Times’ own copyrighted content, it said. OpenAI’s “true grievance” is not about how the Times conducted its investigation, “but instead what that investigation exposed,” said the memorandum. It found that OpenAI and Microsoft built their products by copying the Times’ content “on an unprecedented scale,” it said. OpenAI doesn’t and can’t dispute that fact, the memorandum said. Despite seeking to justify this conduct however it can, OpenAI doesn’t move to dismiss the lead claim that it infringed the Times’ copyrights to train and operate its latest models, it said. Against those claims that it challenges, OpenAI advances “mainly factual arguments that cannot be decided on the pleadings,” it said. To support its statute-of-limitations argument for claims based on models developed before December 2020, OpenAI asks the court to make a factual finding that the makeup of the datasets used to train those models was common knowledge in 2020, it said. OpenAI’s bid to dismiss the contributory infringement claim “turns on disputed facts about user behavior,” it said. OpenAI’s attack on the Digital Millennium Copyright Act claim turns on disputed fact issues concerning the design of its model-training process, which can’t be resolved before discovery into that design, said the memorandum. OpenAI further asks the court to dismiss the unfair competition by misappropriation claim by ignoring the Times’ allegations of OpenAI and Microsoft “free-riding” and deciding that the Times’ product recommendations aren’t generated by efforts akin to reporting, said the memorandum. That’s “yet another premature argument,” it said: “Discovery, not dismissal, is warranted to resolve each of these well-pleaded claims.”

Universal Music Group and other record label plaintiffs want the 5th U.S. Circuit Appeals Court to reject primary liability arguments by internet service provider Grande Communications Network, per the recent 4th Circuit decision in Sony Music Entertainment v. Cox Communications (see 2402210027), said their letter of supplemental authorities Thursday (docket 23-50162). The plaintiffs noted the appeals court affirmed a jury’s finding that Cox was willfully liable for contributory copyright infringement because it knowingly continued to provide its internet services to infringing subscribers, said the letter. By doing so, the 4th Circuit “directly rejected the primary liability arguments” made by defendant Grande in its appeal of that case where a jury awarded $46.7 million in statutory damages to the music labels on grounds that Grande provided internet service to “direct infringers,” said the letter. In Cox, the 4th Circuit applied the “well-established principle that material contribution is an appropriate basis for a finding of contributory copyright liability,” said the plaintiffs. The appeals court concluded “that where, as here, an ISP knew of specific instances of repeat infringement by specific users and 'chose to continue’ providing services to them, a jury is entitled to find material contribution,” the letter said. The rulings are “incompatible with Grande’s primary arguments that material contribution is insufficient to prove contributory infringement and that Grande did not materially contribute as a matter of law,” it said. The 4th Circuit reached its conclusions “fully aware of Twitter, Inc. v. Taamneh, “on which Grande relies,” it said, noting Cox brought Twitter to the 4th Circuit’s attention in a Rule 28(j) letter, “making the same arguments about that case that Grande has raised here.” But the 4th Circuit “held that imposing contributory liability on ISPs on the facts presented in Cox (and in this case) comports with the traditional principles of aiding and abetting liability that Twitter addressed," it said. Cox provides "powerful support" for plaintiffs' position that "this Court should affirm" the district court's judgment in Grande, it said.