A plaintiff in a putative class-action complaint saying Comcast violates the false pretenses provision of the Fair Credit Reporting Act (FCRA) hasn't shown what false pretense Comcast supposedly gave to get his credit information, the company said in a motion (in Pacer) to dismiss filed Monday in U.S. District Court in Chicago. Plaintiff Mounang Patel sued in April, claiming Comcast's unauthorized credit check when he signed up for broadband service affected his mortgage loan (see 1704050022). Comcast said a false pretense report under FCRA would have to be about what the company said to the consumer reporting agency, not what it said to the consumer. It said Patel's breach of contract claim under Illinois state law ignores the written Comcast service agreement that authorized the company to get his consumer credit report. In a separate motion (in Pacer) Monday to partially strike Patel's class allegations, Comcast said his proposed class includes groups of subscribers who couldn't pursue their claims in court, such as those who agreed to individually arbitrate disputes. Counsel for Patel didn't comment Tuesday.

The 2nd U.S. Court of Appeals upheld in a Monday decision a federal district court ruling in favor of defendants Simon & Schuster, Macmillan, Hachette, HarperCollins and Penguin in an antitrust suit brought by Diesel eBooks. Diesel claimed business injuries resulting from “restraint of trade” by Apple and the five major publishing companies. The appeals judges agreed with the district court that the appellant “suffered no antitrust injury” and that Diesel’s business “was not grounded in price competition,” that it “contemporaneously viewed the adoption of agency pricing as a boon, and that its decline was not a legally cognizable antitrust injury flowing from the unlawful nature of the conspiracy.” Diesel couldn't be reached for comment.

Dish Network and the FTC and states that complained about the company's telemarketing practices are at odds about a permanent injunction ordered against Dish last month as part of a judgment regarding Telephone Consumer Protection Act violations. Dish had years' worth of opportunity during the litigation to propose its own injunction but instead "put all of its eggs in the 'no injunction' basket" and now can't try to craft a new injunction that eases its burden, the federal and state TCPA complaint plaintiffs said in opposition (in Pacer) Friday in U.S. District Court in Springfield, Illinois. Plaintiffs said inclusion of inbound calls wasn't a mistake because such calls are related to outbound calling since they are how consumers ask to be added to Dish's do-no-call list and complain about telemarketing. They said exempting retailers' inbound call activity would let those retailers engage in the same conduct that resulted in tens of millions of illegal calls on which the court imposed liability. Dish separately plans to appeal the $280 million fine (see 1706270061). Separately, Dish is appealing (link in Pacer) a 2016 U.S. District Court ruling obviating Ace American Insurance from having to indemnify it from damages related to that TCPA litigation. In its brief (in Pacer) filed Friday with the 10th U.S. Circuit Court of Appeals, Dish said U.S. District Judge Robert Blackburn of Denver erred when he found the damages in the Ace policies to cover only actual damages, since insurance terms are to be interpreted broadly (see 1610140019). The insurer didn't comment Monday.

Lawyers for intellectual property licensing company Wi-LAN asked the U.S. District Court in Newark, New Jersey, to reopen their 4-year-old complaint alleging LG Electronics flat-panel TVs violated two Wi-LAN patents on display processing technology. U.S. Magistrate Judge James Clark signed a November 2013 order terminating the complaint after the case was sent to arbitration. The order “provided that the parties retained the right to reopen the case” after arbitration, the Wi-LAN lawyers told Clark in a Wednesday letter (in Pacer). Now that arbitration has been completed, “Wi-Lan is prepared to file a formal motion to reopen the case should the Court so require,” the letter said. LG representatives didn’t comment Wednesday. Wi-LAN changed its name to Quarterhill, effective June 1.

Judge Ketanji Jackson scheduled an Oct. 18 hearing in U.S. District Court for the District of Columbia on motions for summary judgment filed by both sides in the nearly three-year-old legal battle between the recording industry and major automakers over the scope and applicability of 1992's Audio Home Recording Act (AHRA) (see 1407310086). Contrary to arguments from plaintiff the Alliance of Artists and Recording Companies (AARC), the car infotainment systems at issue from Ford and General Motors and their suppliers Clarion, Denso and Mitsubishi aren't “digital audio recording devices” under the AHRA, the automakers argued in their April 11 summary-judgment motion (in Pacer). "As confirmed through discovery," the infotainment systems' "digital recording function is capable of storing fixed sounds only on hard disk drives that contain materials that are not incidental to those fixed sounds, such as computer programs, other data, or images,” they said. “This undisputed fact takes Defendants’ systems outside the narrow class of products to which the AHRA applies,” they said, asking Jackson to “grant summary judgment in Defendants’ favor and end this litigation." AARC days later filed under seal several motions for partial summary judgment against the automakers. Jackson in a February 2016 memorandum and opinion largely sided with the car companies that the CD-copying functions of their infotainment systems fall outside the AHRA’s scope and that AARC’s arguments to the contrary were “unpersuasive” (see 1602220055). But Jackson let the case proceed to the discovery phase, denying the automakers’ Rule 12 motions under federal court procedures to dismiss AARC's July 2014 complaint or render a judgment on the pleadings because AARC’s allegations were “sufficient to survive” those Rule 12 motions, her opinion said.

Cox Communications hasn't brought a First Amendment challenge to contributory copyright liability, so the Supreme Court's First Amendment rationale in its Packingham v. North Carolina decision in June isn't pertinent, BMG Rights Management said in a filing (in Pacer) Thursday in the 4th U.S. Circuit Court of Appeals. The filing was in response to Cox previously pointing to Packingham as part of its appeal of a U.S. District Court ruling in BMG Rights Management's torrent piracy lawsuit (see 1706270070). BMG said the First Amendment doesn't guarantee Cox subscribers the right to use Cox broadband service to commit piracy "any more than it prevents Cox from terminating subscribers who violate Cox’s policies or fail to pay their bills." It also said Packingham has no bearing on the issue of appropriate circumstances for ISPs terminating access of repeat infringers. Cox didn't comment Friday.

LG, without permission, is using the “sublime and beautiful artwork” of the late Brazilian artist Lygia Pape to “flog” a new line of “cheap smartphones,” Pape’s daughter, Paula, alleged Thursday in a complaint (in Pacer) in U.S. District Court in Manhattan. LG’s actions are “an egregious violation of federal law and an affront" to the artist and "her legacy, and to artists everywhere,” it said. Pape repeatedly rejected LG’s requests to use her mother’s original artwork to promote the launch of the K20 V smartphone, said the complaint. But LG went ahead anyway and ran “a derivative image” created from the artwork in its consumer packaging, advertising and promotions for the K20 V, plus on the wallpaper of the actual device, it said. LG did so without the daughter's knowledge, and in “direct defiance” of her “explicit and repeated denials of consent,” it said. LG’s “exploitation” is “particularly troubling” because her mother, who died in 2004, “viewed her work as having a social purpose” in her native Brazil, it said: “She did not even offer her artworks for sale for much of her career, although that ultimately changed when she found galleries willing to advance the goals of her art.” Among other remedies, the complaint seeks a court order requiring LG to turn over the names and addresses “of any and all persons” to whom it distributed, licensed or sold the K20 V and for how much. “As a matter of policy, LG doesn't generally comment on pending litigation,” spokesman John Taylor emailed us Friday.

A $280 million fine against Dish Network is stayed while the company files its notice of appeal with the 7th U.S. Circuit Court of Appeals, U.S. District Judge Sue Myerscough of Springfield, Illinois, said in an order (in Pacer) Monday. Myerscough ordered the fine earlier this month after a jury found Dish guilty of Telephone Consumer Protection Act complaints brought by the FTC and states (see 1706060069).

The Supreme Court, in invalidating a law barring registered sex offenders from some social networking sites in its ruling earlier this month on Packingham v. North Carolina, was clear on the centrality of Internet access to protected First Amendment activity, Cox Communications said in a filing (in Pacer) Monday in the 4th U.S. Circuit Court of Appeals. Thus if cutting off some Internet access to convicted sex offenders is unconstitutional, so too is the lower court's reading of the Digital Millennium Copyright Act by requiring ISPs end all Internet access to people merely accused of copyright infringement, Cox said, calling Packingham "directly relevant" to determining appropriate circumstances for Cox terminating Internet access. The cable ISP is appealing a U.S. District Court ruling in BMG Rights Management's torrent piracy lawsuit (see 1608190030). BMG counsel didn't comment Tuesday.

Public comments defending the 2015 open internet order are vital to resisting FCC Republican plans to reverse Title II broadband regulation under the Communications Act, said former Chairman Tom Wheeler, former General Counsel Jonathan Sallet and Rep. Don Beyer, D-Va., at a town hall Monday night held by the congressman in Arlington, Virginia. Recognizing the commission's GOP majority, speakers expected the fight to be decided in court. Wheeler said an "overwhelming" record would be needed to undo net neutrality. "What those who want to repeal the open internet order have the burden of proving is that, in two years, things have changed so much that you’ve got to turn 180 degrees and throw out the rules that have been working. ... That's why your comments are so crucial," he told the audience, which applauded speakers several times. Sallet agreed: "When I was general counsel, I didn’t think that what the FCC said was the last word on the matter. I knew there would be a day in court. And what people say to the FCC today in comments, in emails, about their own experiences, that can help shape what happens.” Beyer was skeptical of a legislative solution but urged people to contact lawmakers because public pressure can sometimes cause changes. In response to Public Knowledge Vice President Chris Lewis, who asked if the congressman would "commit to not support legislation that weakens the FCC as a cop on the beat even if it gives us some semblance of net neutrality," Beyer said, "Yes, absolutely." He added he wouldn't support rolling back the FCC's protections. Wheeler called net neutrality "really important" for northern Virginia, a "hot bed" for innovators. He plugged "regulatory agility" and the 2015 general conduct standard, which critics have targeted for elimination "because, 'Well, we don't know what that means in five-10 years.’ Damn right you don’t and that’s why it’s there.” Wheeler said one ISP chief executive told him he wasn't worried about what the then-chairman would do with such broad authority, but about what his successors would do. “I said to him, 'Well, it’s funny, I have the same feeling about you. I’m sure you wouldn’t do anything untoward, but what about your successors?” Wheeler called arguments the FTC could replace the FCC in protecting broadband privacy "an empty promise" because the trade commission lacks the same rulemaking authority and expertise.