A federal judge rejected Dish Network's bid for a new trial in a Telephone Consumer Protection Act class-action lawsuit. In its March motion for a new trial, Dish argued the verdict ran against the clear weight of the evidence and the court made prejudicial evidentiary rulings in the trial. In a text order Tuesday, U.S. District Judge Catherine Eagles of Greensboro, North Carolina, rejected that motion and a related motion for judgment. Dish argued it couldn't be held legally responsible for phone calls made by an outside contractor to numbers on the National Do Not Call Registry since the calls to class members violated Dish's express instructions. Eagles' ruling didn't include an opinion. Dish didn't comment Wednesday.

FilmOn X is ending its two remaining appeals arguing whether streaming services are eligible for compulsory licenses for broadcast content, after the 9th U.S. Circuit Court of Appeals earlier this month denied the company's petition for a rehearing in a third such case (see 1705010004). In a notice (in Pacer) Monday in the 7th Circuit, FilmOn said it's dismissing its appeal of a 2016 ruling in litigation involving Window to the World Communications. In a notice (in Pacer) Friday in the D.C. Circuit, it said it was doing likewise with its appeal of a separate 2016 ruling in litigation against a number of broadcasters. Counsel for FilmOn didn't comment Tuesday.

A coalition of top tech sector stakeholders and a separate coalition of library and public interest groups are urging the 9th U.S. Circuit Court of Appeals to either rehear Mavrix Photographs v. LiveJournal or set an en banc hearing. A three-judge 9th Circuit panel ruled last month against LiveJournal, saying moderators of the website's “Oh No They Didn’t!” gossip blog can be considered to have enough knowledge of copyright infringement contained in blog posts to undermine Digital Millennium Copyright Act Section 512 safe harbors (see 1704100040). Facebook, Google, the Computer & Communications Industry Association, the Internet Association and other tech interests jointly urged 9th Circuit reconsideration of Mavrix, arguing in an amicus brief that the panel's ruling deviated from Section 512's language and legislative history. The original ruling, if allowed to stand, would “make it more difficult for LiveJournal (and other service providers) to ensure that their operations are protected” under Section 512, the tech entities said. “The panel’s decision threatens to expose online services to a possible loss of DMCA protection simply because they make efforts to screen content that users submit for posting. If the panel intended that result, its decision is profoundly mistaken, and it will harm not just service providers and their users, but copyright owners as well.” The ruling “runs directly contrary” to Congress' intent in enacting Section 512 “by penalizing service providers who use moderators,” said (in Pacer) the American Library Association, the Electronic Frontier Foundation, Public Knowledge and others. “The possibility that an online platform might lose its DMCA safe harbor by virtue of moderating its service obviously would strongly discourage the platform from doing so. That, in turn, would upend the actual practices of scores of platforms and services who have responded to Congress’s clear signal that they would not be penalized for using moderators.”

Six ticket brokers that illegally bought and resold hundreds of thousands of event tickets in New York since 2011 -- including five that used illegal software to buy tickets from sites like Ticketmaster.com -- settled for a combined $4.19 million, said Attorney General Eric Schneiderman in a Thursday news release. He said the five companies that used the bots, which became illegal in November, were: Renaissance Ventures known as Prestige Entertainment, Ebrani Corp. known as Presidential Tickets, Concert Specials, Fanfetch and BMC Capital Partners. Except for BMC, the four companies and JAL Enterprises doing business as Top Star Tickets also sold tickets without first getting the state license, said the AG. Under the settlement, the companies must get the proper licenses and "abstain" from using bots, which scoop up large amounts of tickets from ticket sellers before they can be bought by consumers. Brokers then usually sell those tickets at higher prices to consumers. The release said Prestige Entertainment used a ticket bot in 2014 to buy 1,012 U2 concert tickets in one minute. Similar federal legislation became law in December (see 1612150021). Schneiderman said the state settled with Componica, which developed "software libraries" used by ticket bots to bypass "CAPTCHA" tests that websites use to determine if a user is human or a bot. The company agreed not to develop or use such software. The companies didn't comment or their contact information couldn't be located.

Dish Network and plaintiffs in a Telephone Consumer Protection Act class-action lawsuit disagree over defining the ostensible class members eligible for part of a jury award. It's up to the court to decide who should receive part of the $20.4 million class judgment against Dish Network, an issue in which Dish has no legal interest, plaintiff Thomas Krakauer said in a response (in Pacer) in opposition to a Dish motion filed Wednesday in U.S. District Court in Greensboro, North Carolina. It said Dish's proposal -- letting it challenge each claim post trial (see 1704270008) -- would nullify the jury's finding of liability and assessment of statutory damages to the class. The plaintiff said the very point of class action is to avoid the need to present individual proof and its proposed tests for proof of class members is "overwhelmingly burdensome and patently unreasonable." Dish's motion (in Pacer) in opposition to the plaintiff's suggested post-trial procedures said the court before trial said the jury wouldn't decide whether ostensible class members were the phone number subscribers or the people who answer the calls that were the TCPA violations, and plaintiffs are arguing the jury decided all the elements of the class member claims in stealth, allowing immediate entry of a final judgment in favor of 18,066 phone numbers. The jury didn't make an aggregate damages determination, Dish said, adding each ostensible class member still must establish an element of the claim.

The 9th U.S. Circuit Court of Appeals denied a FilmOn X petition for rehearing en banc of its March decision saying streaming services aren't eligible for compulsory licenses for broadcast content (see 1704050016). The order (in Pacer) posted Friday said judges Diarmuid O'Scannlain, Johnnie Rawlinson and Consuelo Callahan denied the petition and no judge of the full court requested a vote to rehear the petition en banc. FilmOn also has appeals going in the 7th and D.C. Circuits regarding cases in which other lower courts ruled it wasn't eligible for a compulsory license (see 1703210023). FilmOn counsel Ryan Baker of Baker Marquart emailed us Monday that now FilmOn is waiting for the D.C. Circuit decision and an issuance of mandate in the 9th Circuit to send the case back to the district court.

Applebee’s produced and ran TV commercials containing “substantial portions” of the "iconic" AC/DC recording "Rock and Roll Ain’t Noise Pollution" without getting a license or paying $325,000 in agreed-upon copyright fees, Sony Music alleged in a breach of contract and copyright infringement complaint (in Pacer) filed Friday against the restaurant chain. Applebee’s ran the commercials to trumpet the chain’s “transformation” through the addition of new menu items at its 2,000 U.S. restaurants, said the complaint, filed in U.S. District Court in Los Angeles. Despite Applebee’s use of the recordings to its “great profit,” the written licenses provided by Sony Music “have never been signed and returned to Sony Music and neither the agreed payments nor any portion thereof have ever been paid to Sony Music,” said the complaint. Applebee’s claim that the fees were properly paid to a “music clearance” company, Music Dealers, that acted as Sony Music’s agent but since went out of business is “pure fiction,” said the complaint. Applebee’s representatives didn’t comment Monday.

Dish Network and plaintiffs in a Telephone Consumer Protection Act (TCPA) class-action suit against the company are at odds over how to handle claims. In a post-trial procedures motion (in Pacer) filed Wednesday in U.S. District Court in Greensboro, North Carolina, Dish said it wants to be able to challenge each claim post-trial. Dish said its proposed post-trial procedures -- each ostensible class member filing a claim form, with jury trials for each one where the parties disagree and the court finds material issues of fact -- "offer a fair, reasonable and practical approach." Plaintiff Thomas Krakauer and the others in a separate motion (in Pacer) Wednesday said Dish's suggested claims process is unduly burdensome in that it proposes adversarial proceeds in contests of payments that, in most cases, would likely amount to a few hundred dollars. "Why Dish wants these procedures is ... clear: it wants the money back. Dish should not get the money back," the plaintiffs said, saying the court should use the class member identification methods similar to what it used at the class notice stage. And it proposed any unclaimed funds after distribution not go to Dish, since the jury found it liable for the 51,119 TCPA violations alleged in the trial, but be directed as escheat to the government, which would determine recipients after distribution. A 10-person jury in January awarded class members $400 per TCPA violation and plaintiffs are seeking a court enhancement to increase the award to $1,200 per violation (see 1702140010).

The Samsung Galaxy Note 4 smartphone that a Sterling Heights, Michigan, man bought in 2011 from a T-Mobile store exploded and burst into flames in November, causing him serious injury, said a complaint (in Pacer) accusing Samsung of product negligence. The case is noteworthy among other recent litigation against Samsung because it involves a 5-year-old phone and makes no mention of the Note7 debacle. Bayar Karim filed the complaint March 17 in a Wayne County, Michigan, state court, but Samsung had it removed Wednesday to U.S. District Court in Detroit. Not long after Karim set his Note 4 next to his bed Nov. 30 and went to sleep for the night, he woke up to what sounded to him like a gunshot and saw flames and smoke coming from his smartphone, said his complaint. Karim suffered burns to his face and upper body, as well as hearing loss and the loss of some peripheral vision in one eye, it said. Company representatives didn’t comment Thursday on the Karim complaint and reacted previously to similar lawsuits by saying it stands behind “the safety of the millions of Samsung phones in the U.S.” (see 1612280017).

Even if U.S. District judge's summary judgment order on behalf of Dish Network wasn't certified as final, it still is appealable because it includes an injunction, Digital Satellite Connections said in a memorandum filed Wednesday in the 10th U.S. Circuit Court of Appeals. DSC said the statute of limitations ran out on Dish counterclaims that were dismissed without prejudice, thus making the final judgment final. The memorandum was in response to the appeals court asking for one after questioning its own appellate jurisdiction on the case. Dish didn't comment Thursday. The March 24 summary judgment order by Judge Robert Blackburn of Denver was in response to Dish and DSC motions for summary judgment in a 2013 lawsuit brought by satellite reseller DSC and owner Kathy King, in which they claimed Dish was infringing on their Dishnet trademark with its Dishnet Satellite Broadband. Blackburn said under the terms of the 2010 agreement between DSC and Dish, Dish is entitled to ownership and use of the Dishnet trademark. DSC didn't renew its agreement with Dish in 2012, according to court paperwork.