BMI went to U.S. District Court for Eastern Ohio in Akron Thursday on behalf of itself and eight music publishers to stop the Whiskey Stop Bar & Grill in Louisville, Ohio, and owners Scott and Kathryn Kelly from publicly performing musical compositions in the BMI repertoire without a license, said their complaint (docket 5:23-cv-01889). BMI has contacted the defendants more than 40 times since October 2021 by phone, mail and email 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 portfolio, said the complaint. Included in the letters were cease and desist notices, giving the defendants formal notice they must immediately cease all use of BMI-licensed music in their establishment, it said. The plaintiffs allege six claims of willful copyright infringement, based on the defendants’ unauthorized public performance of musical compositions from the BMI repertoire, it said. All the claims for copyright infringement joined in the complaint “are governed by the same legal rules and involve similar facts,” it said.
U.S. Magistrate Judge Dustin Howell for Western Texas in Austin granted Grande Communications Networks' motion, approving the $46.8 million supersedeas bond that Grande procured against a jury’s contributory infringement damages award (see 2308300005), said Howell’s signed order Wednesday (docket 1:17-cv-00365). Howell’s order also stayed the execution of the court’s Jan. 30 copyright infringement judgment against Grande, pending the resolution of all appeals. Howell said the plaintiff record labels’ argument is without merit that allowing Grande the option to pay first undermines the purpose of supersedeas bonds, said his order. The judge also said there’s “no precedent” supporting the plaintiffs’ claim that supersedeas bonds “may not allow the litigant the obligation to pay first,” said his order.
The U.S. Court of Appeals for the D.C. Circuit’s Aug. 29 decision in Valancourt Books v. Garland said correctly the book deposit requirement contained in Section 407 of the Copyright Act, as applied to a book publisher, “was an unconstitutional taking of private property” under the Fifth Amendment, said an analysis Wednesday by Seth Cooper, Free State Foundation director-policy studies and a senior fellow. The decision was a “straightforward Takings Clause case” because copies of copyrighted books are personal property, and the deposit requirement involved “no form of just compensation or like kind exchange to justify it,” said Cooper. In Valancourt, the D.C. Circuit observed that the deposit requirement isn’t a precondition for copyright protections, “and it rightly concluded that Section 407 confers no benefit for compliance,” he said. But the court's analysis in Valancourt “also deserves scrutiny for appearing to deviate from the Founding Fathers' understanding of the nature of copyrights as a type of public contract between creative artists and the government that is rooted in natural property rights,” he said. Valancourt also provides a window “into the open question of the applicability of the Takings Clauses” of the Fifth and 14th amendments “to takings by state governments of exclusive rights in creative works,” he said.
The Old Fountain Tavern in suburban Atlanta, and its owner Stephen Clark, deny the allegations of BMI and eight music publishers that they’re publicly performing musical compositions without the authorization or license of the copyright owners (see 2308180027), said their answer Friday (docket 1:23-cv-03657) in U.S. District Court for Northern Georgia in Atlanta. The defendants allege the plaintiffs “unreasonably delayed filing any claims,” causing them to suffer prejudice. Owner Clark “presently has insufficient knowledge and information upon which to form a belief as to whether he may have additional, and as yet unstated, affirmative defenses available,” said the answer. He reserves the right to seek leave to amend his answer “to assert additional affirmative defenses in the event that discovery reveals facts which render them appropriate,” it said.
Redoak Communications reached settlements with Best Buy, Target, Walmart and two other defendants, resolving allegations the online retailer sold unlicensed DVD and Blu-ray copies of the 1981 horror film Just Before Dawn, said the parties’ stipulation for dismissal with prejudice Monday (docket 9:23-cv-80008) in U.S. District Court for Southern Florida in West Palm Beach. Best Buy and Target invoked affirmative defenses March 31 in which they contended Redoak’s claims were barred by the first-sale doctrine, because once Redoak’s licensees sold products in commerce, Redoak no longer had any right to control subsequent disposition or sales of those products (see 2304020001). Each party will bear its own attorneys’ fees and costs, said the stipulation.
The Weather First Alert logo used by Tegna-owned KSDK in St. Louis violates Gray Media’s First Alert Weather trademark that Gray’s KMOV has used in the same market since August 2022, Gray alleged in an infringement lawsuit Friday (docket 4:23-cv-01163) in U.S. District Court for Eastern Missouri in St. Louis. Patent and Trademark Office records show the First Alert Weather mark (registration number 3290987) was granted to Raycom Media, Gray’s predecessor company, in September 2007. The First Alert Weather mark “has been prominently and repeatedly featured on Gray’s weather broadcasts, websites, social media accounts, radio spots, vehicles, and various other marketing materials,” said the complaint. The mark “has acquired a strong and favorable public recognition and secondary meaning identifying Gray as the preeminent source for reliable weather reporting nationwide,” it said. Rather than compete fairly on “their own merit,” Tegna and KSDK “engaged in a blatant pattern of willful, deliberate infringement in order to wrongfully benefit from the goodwill that Gray has built up” in connection with the First Alert Weather mark, it said. Tegna and KSDK “suddenly debuted” the Weather First Alert logo in October, having previously used the “5 on Your Side” brand in reference to playing on local Channel 5, it said. Since the defendants’ infringing conduct began late last year, Gray has requested that they “terminate their infringement and have unsuccessfully attempted to negotiate a co-existence agreement between the parties,” it said. Tegna “is aware of Gray’s rights,” and has licensed the First Alert Weather mark from Gray in different markets, including the St. Louis market, the complaint said. KSDK decided not to renew its license for use of the mark in St. Louis in 2015. Tegna and KSDK didn’t comment Monday.
The 4th U.S. Circuit Court of Appeals tentatively calendared Simply Wireless’ appeal against T-Mobile for in-person oral argument for the Dec. 5-8 session in Richmond, said a signed clerk’s order Wednesday (docket 22-2211). Simply Wireless is seeking to reverse the district court’s granting of summary judgment in T-Mobile’s favor when it ruled that Simply Wireless had abandoned rights to the “Simply Prepaid” trademark (see 2307270001).
The Internet Archive “is in compliance with all of its obligations” under the Aug. 11 permanent injunction imposed by U.S. District Judge John Koelti for Southern New York in Manhattan, said a signed declaration Monday (docket 1:20-cv-04160) by IA founder and Chair Brewster Kahle. The judge’s “narrowly tailored” injunction bars IA from scanning print copies of physical books and lending the digital copies to users of IA’s website without the publishers’ permission, so long as those physical books also have an e-book component (see 2308150012). In Kahle’s role as IA’s digital librarian, “I oversee the Internet Archive’s digital lending library,” said his declaration. IA’s library was at the heart of its copyright infringement dispute with the four book publishers that was resolved in the publishers’ favor.
After the court ruled July 25 that Grande Communications Networks needed to post a bond for the court to stay execution of the record labels’ $46.8 million copyright infringement judgment pending appeal (see 2307260048), Grande moved for approval of a $46.9 million supersedeas bond. But Grande’s proposed bond is “insufficient as a matter of law,” said the labels’ memorandum of law Tuesday (docket 1:17-cv-00365) in U.S. District Court for Western Texas in Austin in opposition. Grande is seeking to vacate a Nov. 3 jury verdict awarding UMG and other plaintiffs $46.8 million in damages resulting from Grande’s willful contributory infringement of 1,403 copyrighted works. Grande’s proposed bond doesn’t make the surety “immediately and unconditionally liable for the judgment” if Grande doesn’t prevail on appeal, said the memorandum. It says instead the surety will become liable only if Grande first fails to pay the judgment, it said. Imposing such a condition precedent on the surety’s liability fails to protect the labels’ security interest in their judgment “and is impermissibly vague about when the surety will become liable,” it said. Grande’s bond should instead state clearly that the surety is immediately liable for the judgment if Grande doesn’t prevail on appeal, but such liability “is obviated if Grande satisfies the judgment itself,” it said. The amount of Grande’s bond also doesn’t account for post-judgment interest, as is required in the 5th Circuit, it said. As a result, the bond as proposed fails to “sufficiently protect” the labels’ interests pending Grande’s appeal, it said. The court should deny Grande’s motion for approval of its supersedeas bond and stay of judgment “until the deficiencies in Grande’s bond are corrected,” it said.
Arm Holdings “can provide no assurances” about the outcome of its litigation with Qualcomm and Nuvia, said Arm’s F-1 registration statement Monday at the SEC for its forthcoming initial public offering. Arm also can’t predict how the litigation will affect its relationship with Qualcomm, “which is currently a major customer of ours” and generated 11% of Arm’s total revenue for the fiscal year ended March 31, said the F-1. The case is in the discovery phase, with trial set for September 2024 (see 2212190066), it said. The litigation “will likely require significant legal expenditures,” it said. “It may also require substantial time and attention from our executives or employees, which could distract them from operating our business.” it said. Arm’s involvement in such litigation “could cause us to incur significant reputational damage in the industry, in our relationship with Qualcomm or in our relationship with other third-party partners,” said the F-1. Qualcomm spent more than $1 billion to buy Nuvia, a startup led by former Apple and Google engineers that licensed Arm technologies to develop high-performance processor cores for semiconductor chips. “In the process,” alleged Arm’s Aug. 31, 2022, complaint, Qualcomm “caused Nuvia to breach its Arm licenses, leading Arm to terminate those licenses, in turn requiring Qualcomm and Nuvia to stop using and destroy any Arm-based technology developed under the licenses.” Qualcomm countersued in October for a declaratory judgment that it has complied with its contractual obligations to Arm.