Representatives of LG and Samsung declined comment on Creative Technology's complaints that their companies' smartphones violate an August 2005 patent for Creative's Nomad Jukebox when used with a preinstalled Google Play music app or another music app proprietary to the individual brand of phone (see 1603250045). Representatives of the other five companies targeted with nearly identical complaints didn't respond to requests for comment.

The 5th U.S. Circuit Court of Appeals seemingly deviated from the guidelines it set in its 1988 Coghlan v. Starkey decision for finding of frivolousness, as well as the summary judgment guidelines the Supreme Court established in its Anderson v. Liberty Lobby decision in 1986, in shooting down his appeal in his lawsuit against Dish Network, said Texas lawyer/plaintiff Larry Polsky in a petition for rehearing en banc Tuesday. The 5th Circuit earlier this month upheld a previous U.S. District Court in Houston summary judgment tossing out Polsky's consumer complaint against Dish, calling his claims frivolous (see 1603030026). In his petition, Polsky said his complaint "involves an important question of law that is of first impression in this Circuit and to every other state and federal court in the United States of America" -- namely, whether an ISP has a duty to disclose to consumers that their Internet service is split among two periods of the day, and usage in one of those periods is not monitored. The 5th Circuit panel in its March decision ignored arguments on Dish's supposed fraud by omission and that its supposedly being "too busy" to monitor gigabyte usage from 2 to 8 a.m., which was cited in the initial summary judgment, isn't something Dish ever asserted, Polsky said.

California residents living in a home where Comcast provided cable, Internet and TV service aren't themselves customers and thus can't sue for allowing information about them to be accessed by third parties, the company said in a reply filed Thursday U.S. District Court in Sacramento in support of its motion to dismiss or compel arbitration. Laurie Montoya and others sued Comcast in 2015 after hackers allegedly used their residence's IP address to place VoIP calls that resulted in Sheriff's Department, ambulance and SWAT team responses to the Montoya home and in money taken from one of the Montoyas' PayPal accounts. Comcast said in its reply that the relevant statutes "make no sense if the word ‘subscriber’ is redefined to include others who may use the services." While the Montoyas "lived in a house where some other person is the subscriber who purchased Comcast services ... the statutes do not apply to all roommates and guests of Comcast's subscribers," the company said, saying the claims must be dismissed. Even if the plaintiffs were entitled to the same benefits as subscribers, Comcast said, "equity requires they be treated the same as Comcast's actual subscribers and ... should be required to arbitrate," the company said. The Comcast subscriber is not part of the suit. The plaintiffs didn't comment Friday.

The injunction against TVEyes' blocking subscribers from emailing, downloading or running date-time searches on TV clips should be vacated, it said. Those functions are equally fair use as the functions that are permitted -- namely searching, viewing and archiving -- the media monitoring service said in a brief filed Thursday in the 2nd U.S. Circuit Court of Appeals. The U.S. District Court in Manhattan was wrong when, in crafting its injunction, it asked which TVEyes research functions were an integral part of its service, because that test has no basis in the Copyright Act or court precedent, the company said. TVEyes also can't be held liable for its subscribers' emailing, downloading and date/time searches, and the court's injunction improperly failed to apply the four-factor test for issuing an injunction set up in the Supreme Court's 2006 eBay v. MercExchange decision, the company said. Fox News Network sued TVEyes in 2013, alleging copyright infringement. The Manhattan court issued an order in 2015 that the company's archiving function is fair use but that emailing, downloading and date/time searches are not, and subsequently issued an injunction. Those functions are in fact fair use since they're transformative uses, letting subscribers "fulfill purposes that differ from the original news and entertainment purposes of the broadcasts," and there's no evidence those functions harm the market for those works, TVEyes said. Even if an injunction could properly be issued in the case, the company said, the Manhattan court's injunction is overly broad because "it extends to any and all conceivable future Fox programming" and injunctions should be strictly for the specific legal violations.

The All Writs Act that DOJ and the FBI are using to try to force Apple to comply with a court order to help the government gain access to an iPhone used by a San Bernardino, California, mass shooter "does not authorize such relief, and the Constitution forbids it," Apple said in a 33-page motion filed Tuesday (see 1603040023) in U.S. District Court in Riverside, California. Apple was responding to a government's motion filed Thursday that the act is being used correctly (see 1603110010). "The government attempts to rewrite history by portraying the Act as an all-powerful magic wand rather than the limited procedural tool it is," Apple said. "The case hinges on a contentious policy issue about how society should weigh what law enforcement officials want against the widespread repercussions and serious risks their demands would create." Apple is asking the court to reject the government's argument and vacate the order.

Saying it "sincerely regrets that it did not articulate its position ... with sufficient clarity" before and during a March 4 hearing on a DirecTV pending summary judgment motion, the FTC filed a motion for leave to file supplementary material Tuesday in U.S. District Court in San Francisco. The material is a four-page brief on how the FTC sees the evidentiary burden standard applicable to that motion. The agency sued DirecTV in 2015, alleging it wasn't properly communicating the early cancellation fees subscribers face if they sign up and then quit the service before two years (see 1503110042). In its brief, the commission said the Rule 56 summary judgment standard doesn't require presenting new evidence. The FTC said DirecTV has argued the website screenshots showing disclosures hidden behind hyperlinks and tabs that the commission presented as evidence have shifted the burden to the FTC to show other evidence consumers didn't see or comprehend the disclosures, but those screenshots point to a violation of the Restore Online Shoppers Confidence Act, which requires online sellers to disclose material terms conspicuously and clearly.

Sept. 23 is the deadline for filing a claim on a class-action lawsuit against Cablevision alleging Sherman Antitrust Act violations in its set-top box policies. In an order Thursday, U.S. District Judge Madeline Arleo of Newark, New Jersey, certified the class in Gary Marchese et al vs. Cablevision and set the claim filing deadline in the 2010 suit, which alleged Cablevision tied the sale of some video services to rental of a Cablevision set-top. The order said the class includes all Connecticut, New Jersey and New York residents who subscribed to Cablevision and paid a monthly set-top lease fee between April 30, 2004, and now. Arleo also signed off on the proposed forms of notice to the settlement class about a proposed settlement, with those notices to be sent by Cablevision within 110 days. A hearing on final approval is scheduled for Sept. 12, according to the order. In a class-action settlement agreed to by the plaintiffs and Cablevision in December, Cablevision agreed to activate any certified third-party set-tops bought by a subscriber from a third-party retailer and to provide "reasonable cooperation and ... technical assistance to interested manufacturers" of third-party set-tops. Cablevision in the settlement agreement also agreed to give current subscribers a free, four-month subscription to over-the-top SundanceNow service regardless of whether they file a claim form. Subscribers who had tenure of 36 months or less will be entitled to a $20 credit, five free months of multiroom DVR service, free lease of an additional Cablevision set-top for eight months or a free three-month subscription to Starz/Encore, according to the settlement agreement. Claimants with 36 to 72 months tenure are entitled to a $30 credit, eight months of the DVR, 13 months of an additional Cablevision set-top, or three months of Starz/Encore and of Showtime. Claimants with more than 72 months of tenure are entitled to a $40 credit, 11 months of the DVR, 18 months of an additional set-top, or three months of Starz/Encore and Showtime plus four months of Optimum SportsPak. Former subscribers who file claim forms will be entitled to four free months of OTT service SundanceNow and a cash payment of $20, $30 or $40, depending on how long they had been subscribers.

The court order forcing Apple to help the FBI unlock an iPhone 5C used by a gunman in the California mass shooting in December applies only to that phone and "does not compel [the company] to unlock other iPhones or to give the government a universal 'master key' or 'back door,'" argued DOJ lawyers in a 35-page filing Thursday countering Apple's motion to dismiss the case (see 1603020061). The lawyers said the All Writs Act (AWA), which the government is applying in the court order, isn't "dusty and forgotten" as Apple has described it, but "vital" to the U.S. legal system and "regularly invoked." They said the Supreme Court rejected similar policy arguments in 1977's U.S. vs. New York Telephone that Apple now raises: "that the AWA could not be read so broadly; that it was for Congress to decide whether to provide such authority; and that relying on the AWA was a dangerous step down a slippery slope ending in arbitrary police powers." DOJ lawyers said "fears have proved unfounded" in the 40 years since that decision. The order instructs Apple to create "a narrow, targeted piece of software" for just that one iPhone within the company's own secure headquarters, the lawyers said (see 1603010013). Justice said the device is owned by the County of San Bernardino, which is where the shooting took place, and was used by "now-dead terrorist Syed Rizwan Farook, who also consented to its being searched as part of his employment agreement with the County. In short, the Order invades no one's privacy and raises no Fourth Amendment concerns."

FTC requests for DirecTV consumer complaint documentation are "relevant but overbroad," U.S. Magistrate Judge Maria-Elena James of San Francisco said in a discovery order Tuesday, telling the company and agency to meet again about ways to narrow the request scope. The two had disagreed about documentation (see 1603040021) as part of the FTC's 2015 lawsuit against DirecTV for allegedly not properly communicating early cancellation fee terms to subscribers (see 1503110042). In her order, James also said DirecTV and the FTC should discuss DirecTV's argument about redaction of personal consumer information "unless the FTC can make a compelling showing as to its relevancy."

The Supreme Court denied Apple’s petition for a writ of certiorari seeking a review of the 2nd U.S. Circuit Court of Appeals ruling the company violated antitrust laws in its e-book pricing case. As is customary, the Supreme Court provided no reasoning in its Monday order denying cert. Apple’s cert petition had faced long odds of getting a Supreme Court review given the court’s history of taking few antitrust cases each year and the lack of a clear split among federal circuit courts on the issues in the case (see 1510300062). The Supreme Court’s denial of Apple’s cert petition means the company will now have to pay a $450 million settlement it agreed to pay to consumers and state attorneys general that had been contingent on the 2nd Circuit’s 2015 ruling (see 1506300067), DOJ said. “Apple’s liability for knowingly conspiring with book publishers to raise the prices of e-books is settled once and for all,” said DOJ Assistant Attorney General-Antitrust Division Bill Baer in a news release. Apple didn’t comment. Amazon said it’s “ready to distribute the court-mandated settlement funds to Kindle customers as soon as we’re instructed to move forward.” The Supreme Court needed to decide “whether Apple should even be allowed to argue that its arrangement could benefit consumers,” said TechFreedom President Berin Szoka in a blog post. “Apple made a strong case that its deal with publishers was critical to allowing it [to] compete with Amazon. The Supreme Court might or might not have found those arguments convincing, but it should have at least weighed them under antitrust’s flexible rule of reason. By letting the rigid per se deal stand as the controlling legal standard, the Court has ensured that antitrust law in general will put obsolete legal precedents from the pre-digital era above consumer welfare.”