BMI contacted Palm Bay, Florida, restaurant The Shack Riverfront over 60 times since October 2020 by phone, mail and email about the need to buy a license for public performance of music in the BMI portfolio, said a Thursday copyright infringement lawsuit (docket 6:23-cv-00857) in U.S. District Court for Middle Florida in Orlando. In the seven-claim suit, BMI and eight music publishers allege the restaurant publicly performs musical compositions without authorization. Among the letters it sent were cease and desist notices giving the establishment formal notice that it must immediately stop use of all BMI-licensed music, the complaint said. BMI seeks orders that the restaurant is enjoined from infringing BMI-licensed music and that it must pay statutory damages and attorneys’ fees, it said.

Defendant Grande Communications’ request to extend the time it has to post a bond to 14 days is “meritless,” said Universal Music Group’s Tuesday reply in support of its conditional cross-motion for writ of execution (docket 1:17-cv-00365) in U.S. District Court for Western Texas in Austin. Plaintiffs UMG and other music labels want to ensure they can proceed with collecting the judgment amount if the court denies the motion by Grande to waive the supersedeas bond requirement, and if Grande fails to obtain a bond, said the reply. The music labels were awarded $46.8 million in the copyright infringement case involving Grande internet subscribers. Parties typically have 30 days from judgment entry to obtain and post a supersedeas bond, said plaintiffs' reply; as a “courtesy,” they proposed that Grande be given seven additional days from the denial of its waiver motion to post one. Grande’s reasoning for an extension was that it may have to submit more financial information to bond issuers, which “could take some time,” but it “has already had two months beyond the 30-day period” provided in Rule 62 to submit the information necessary to obtain a bond, plaintiffs said. Grande’s request for more time “is simply [its] latest effort to complicate the supersedeas bond process and delay its obligation to obtain a bond like any other defendant who loses at trial,” said the reply. The music labels requested (see 2304070033) an additional $13 million in March for attorneys’ fees of $5.2 million, plus $7.4 million in prejudgment interest and about $200,000 in expert costs on the jury’s verdict that Grande’s copyright infringement was “willful.”

Amazon Studios, Simon Tolkien and the Tolkien Estate copied characters, storylines and images from plaintiff Demetrious Polychron, alleges a Friday copyright infringement lawsuit (docket 2:23-cv-02831) in U.S. District Court for Western California in Los Angeles. Polychron, a Los Angeles resident, asserts the defendants infringed his copyrighted work in the TV series The Lord of the Rings: The Rings of Power (ROP). Polychron received a copyright for his work, The Fellowship of the King (TFOTK), Nov. 21, 2017, alleges the complaint. The copyright infringement suit, which also names then-Amazon CEO Jeff Bezos and “Does 1-100,” alleges Polychron made several attempts to reach J.R.R. Tolkien’s grandson Simon Tolkien, asking for review of his manuscript but received no response. Two years later, Polychron retained counsel to contact the Tolkien Estate and related entities, giving detailed descriptions of his book “with request for review and collaboration.” Defendants’ counsel “rebuffed any attempt at collaboration” the next day. A few weeks later, Polychron delivered a copy of the TFOTK manuscript, identified with a copyright symbol, to Tolkien’s Santa Barbara, Calif., home, “hoping he would review the manuscript and reconsider collaboration,” the complaint said. About three weeks later, he requested return of the manuscript and advised Tolkien he would publish it, plus six more books in the series. Amazon Studios and The Tolkien Estate agreed to create ROP in November 2017; the Tolkien Estate paid Amazon Studios $250 million for rights to the series “that ultimately copied Polychron’s book” and has earned defendants more since its release, the complaint alleges. Despite inspiration from Tolkien’s The Lord of the Rings, Polychron developed “a wholly original book and concept” for his works that “compose as much as one-half of the 8-episode series as release and published by Defendants.” In addition, defendants “copied images that match the book cover and descriptions as created in the book as authored by Polychron,” it said. Defendants have since, “in blatant disregard for their infringing use of Polychron’s creation,” registered seven copyrighted works in the ROW series, it said. Plaintiff seeks an injunction against alleged copyright infringement, abandonment of cited copyright registrations, damages due to unfair trade practices, profits and advantages not less than $250 million, plus legal costs.

The Motion Picture Association requested and the U.S. District Court for Central California in Los Angeles honored the request for subpoenas requiring two companies to disclose the identities and account histories of users operating websites that allegedly “exploited” Alliance for Creativity and Entertainment members’ “exclusive rights in their copyrighted motion pictures without their authorization.” Subpoenas were requested and issued to Cloudflare (docket 2:23-mc-00054) for infringing Godzilla vs. Kong and Encanto via furiaflix.net; infringing (docket 2:23-mc-00058) Harry Potter and the Sorcerer’s Stone, Strange World, Sonic the Hedgehog 2, Cruella, The Batman and Encanto via various websites; infringing (2:23-mc-00056) Birds of Prey and Fast & Furious 9 on photocall.tv, and Minions and The Big Bang Theory on multicanais.vc and megacanais.com; infringing (docket 2:23-mc-00057) Sonic the Hedgehog 2 and Aquaman via tvzon.tv; and infringing (docket 2:23-mc-00053) Happy Death Day 2U and Elvis via two channel backend links. It also requested and the court issued a subpoena (docket 2:23-mc-00059) to Tonic Domains for infringing Encanto and Tenet via fmoviesfree.com. The subpoenas order the infringing companies, under the Digital Millennium Copyright Act, to disclose the names, physical addresses, IP addresses, telephone numbers, email addresses, payment information, account updates and account histories of the users operating the websites.

Grande Communications should be required to pay plaintiffs’ attorneys’ fees of $5.2 million, plus $7.4 million in prejudgment interest and about $200,000 in expert costs on the jury’s verdict that Grande’s copyright infringement was “willful,” said the record labels’ reply in support of their motion for fees and interest (docket 1:17-cv-00365), filed Thursday in U.S. District Court for Western Texas in Austin. Grande filed an opposition motion March 12 for Universal Music Group’s and other labels’ request for an additional $13 million recovery, after they were awarded a “windfall $46.8 million” in statutory damages. There was evidence at trial that plaintiffs’ actual damages were “far less” than the $47 million that was awarded, Grande said in the motion, saying UMG didn’t offer any evidence of the value of its 1,400 copyrighted songs, such as revenue figures from sales or statistics about the volume or frequency with which songs were sold or streamed. In their reply, music labels said Grande “tries to avoid the impact of the jury’s finding” by arguing the court “softened” the jury instruction on willfulness such that the verdict “does not reflect Grande’s intent to infringe.” Grande’s argument is “legally baseless” and “simply wrong as a matter of fact,” said the reply. The jury said Grande “knew its subscribers were engaging in copyright infringement and continued providing them the services necessary to infringe anyway,” it said. Those findings “powerfully support the finding of willfulness and an award” of plaintiffs’ legal fees, it said. The reply cited Kirtsaeng v. John Wiley & Sons, in which the Supreme Court instructed courts to consider “the totality of circumstances in a case,” including a party’s “litigating position," when considering a fee application. “That inquiry necessarily includes a party’s defenses and conduct at all stages of litigation,” the reply said, saying otherwise, a defendant could assert meritless defenses pre-trial in an effort to “impose needless costs and slow down litigation, yet face no consequences for its unreasonable actions if it took relatively less unreasonable positions at trial.” That’s “exactly what Grande did” by alleging a Digital Millennium Copyright Act safe harbor defense “despite knowing it had no policy to terminate the accounts of repeat infringing subscribers for seven years.”

U.S. District Court Judge William Conley for Western Wisconsin granted Google’s motion to dismiss a Digital Millennium Copyright Act (DMCA) lawsuit brought by BlueType and its Gelbooru/Gelcom anime creator website, said a Friday opinion and order (docket 3:21-cv-00320) in U.S. District Court for Western Wisconsin in Madison. Plaintiffs claimed Google’s wrongful “interference with business contracts” affected Gelbooru revenue. Google received multiple DMCA takedown notices from defendants “Does 1 and 2” claiming certain contact on Gelbooru infringed their copyright, and Google forwarded the notices to plaintiffs. Plaintiffs allege Google failed to comply with Rule 512 strictures by redacting contact information from the original notices, failing to restore the disputed content within 10 to 14 business days of receiving plaintiffs’ counter notices, and failing to forward their counter notices to senders. Plaintiffs have until April 28 to file an amended complaint meeting certain requirements, including exhibits to the amended complaint with takedown notices they allege are false, said the order, or the court will dismiss the case. “Even if Google did not follow the procedure entitling it to a safe harbor defense in this case, the effect is disqualifying it from that defense,” not creating liability under Section 512 of the DMCA for violating plaintiffs’ rights, the order said.

U.S. District Judge James Browning for New Mexico in Albuquerque scheduled a March 20 in-person hearing on the motion of defendant property owner Academy Medical Office to dismiss the cell tower lease complaint of T-Mobile and Crown Castle and the plaintiffs’ motion to dismiss Academy’s breach of contract counterclaim (see 2301130001). T-Mobile asserts it was within its rights to sublet rooftop tower space to Crown Castle and in turn to Dish Network, but Academy maintains it was unlawful for T-Mobile to do so without the property owner’s written consent. Browning presumes the parties will appear in person for the hearing unless they notify him in writing by March 16 of their desire to appear remotely, said his text-only notice Wednesday (docket 1:22-cv-00910).

The Digital Millennium Copyright Act’s Section 1201 ban on circumvention tools is “strong medicine” that risks “interfering with First Amendment-protected speech and with lawful commerce in innovative technologies,” said the Electronic Frontier Foundation’s amicus brief Thursday (docket 22-2760) in support of Yout in its 2nd U.S. Circuit Appeals Court fight against the Recording Industry Association of America. The district court’s erroneous finding that Yout’s software platform was a circumvention tool under the DMCA should be reversed, said EFF. Yout’s platform is an example of one technology “that is threatened by the overbroad application of Section 1201,” it said. Yout and programs of its ilk “fulfill the same function that videocassette recorders once did,” it said. They enable ordinary people “to make and retain copies of videos that have already been released to the world at large by their creators,” it said. The RIAA and its member companies “are engaged in a campaign to make streamripping tools a contraband technology, unavailable even to lawful users.” They sought to block, censor and demonetize providers of these tools “because a subset of their users infringe copyright,” said EFF. The RIAA claims streamrippers “necessarily circumvent access controls on video-sharing sites like YouTube in violation of Section 1201, a position adopted by the district court in this case,” it said: “That position is wrong.” The district court adopted an “extremely broad construction” that effectively applies “the strictures of Section 1201 to any copy of a work in digital form, not just the subset that rightsholders have chosen to protect with technological means,” it said. The 2nd Circuit “should take a different approach,” it said. Text, legislative history and precedent “suggest clear limits on the definition of ‘technological measures,’” it said: “YouTube’s user-uploaded video service and its web-based player fall outside those limits.”

Plaintiff Dish Network reached a settlement with defendant William Everly, resolving all the claims in Dish’s Federal Communications Act and Digital Millennium Copyright Act complaint, said a stipulated notice of settlement Wednesday (docket 3:22-cv-01748) in U.S. District Court for Northern Ohio in Toledo. The parties asked the court to stay “all responsive deadlines” and give Dish 30 days to file a dismissal of the action, said the notice. Dish alleged Everly operates “illicit streaming services” under the brand PrimeStreams that capture Dish content by circumventing Dish’s security measures and then retransmits that content to customers who buy access to those services from Everly (see 2210030033).

U.S. District Judge Stefan Underhill for Connecticut signed an order Friday (docket 3:20-cv-01602) denying without prejudice the Recording Industry Association of America motion for attorneys’ fees, with leave to refile the motion after disposition of Yout’s appeal before the 2nd U.S. Circuit Court of Appeals of his order dismissing the case in RIAA’s favor. Underhill denied as moot Yout’s motion to stay his attorneys’ fees ruling, pending appeal. The Copyright Act “provides for recovery of fees and costs incurred by the prevailing party, including fees and costs incurred on appeal,” said his order. “The party prevailing on appeal will likely seek fees at that time,” he said. “Therefore, the interests of judicial efficiency, avoidance of piecemeal adjudication, and conservation of judicial resources favor denying the fee motion without prejudice at this time.” RIAA said it spent more than $250,000 in lawyers’ fees defending what it called Yout’s “meritless” lawsuit seeking a declaratory judgment that its software doesn't violate the Digital Millennium Copyright Act (see 2211230003).