7:16am PT by Eriq Gardner
Hollywood Docket: Music Industry Antitrust; Video Game Humvees; Paul Haggis DNA
Global Music Rights LLC, the performance rights collective founded by Irving Azoff, is asking a California federal court to dismiss "monopolization" claims raised by the Radio Music License Committee, which represents some 10,000 radio stations throughout the nation.
GMR is an upstart competitor to BMI and ASCAP, and with a repertory that includes works performed by The Eagles, Jay-Z, Taylor Swift, Drake and Madonna, it aims to score better royalties for songwriters. The outfit isn't beholden to the consent decrees that require BMI and ASCAP to offer blanket licenses to music users. The Justice Department is reviewing those consent decrees, but in the meantime, RMLC essentially demands that GMR be subjected to the same kind of forced licensing put on BMI and ASCAP.
"The fundamental flaw in this case is that Radio Music Licensing Committee asserts antitrust claims based on an increase, not a decrease, in competition," states a motion to dismiss filed on Thursday. "Although it purports to describe a 'monopoly' and 'restraint of trade,' RMLC’s complaint in fact describes competitive entry into a previously oligopolistic market and a healthy expansion of trade that benefits songwriters."
The RMLC aims to shoot down GMR's antitrust assertions against radio stations with its own motion for judgment on the pleadings.
"The Sherman Act violation that has harmed GMR in the here-and-now, as the story goes, is that RMLC somehow managed to get all 10,000 of its radio station members to agree with each other not to buy a license from GMR — even though they could not or would not avoid playing songs that could be licensed only through GMR," write RMLC's attorneys. "What the Court is presented with here is thus an alleged conspiracy, by an entire industry, to knowingly and intentionally expose itself to copyright infringement statutory damages of up to $150,000 per song, for thousands of songs. The sheer absurdity that 10,000 entities would agree with each other to do anything (much less something that exposes each of them to potentially crippling liability) should be enough, by itself, to end this case. But there is plenty more."
In other developments in entertainment and media law:
— The dispute between the company that produces Humvees for the American government and the publisher of Call of Duty over the prominent appearance of the utility vehicles in a shoot-em-up video game is attracting outside attention. Here's background on the case. A group of intellectual property professors at law schools throughout the nation has filed an amicus brief warning a judge not to allow trademark law trample on free speech. The Electronic Software Association expresses similar sentiments in its own friend-of-the-court brief. It's somewhat unusual to see third parties weigh in like this at the district court level so it may be interpreted as a sign of a significant legal fight. Meanwhile, Humvee producer AM General filed papers this past week opposing summary judgment with the contention that the First Amendment hardly provides a blanket defense to IP theft and that a jury must take up the evidence showing a likelihood of confusion among consumers as to association and sponsorship. See that memorandum here.
—For several years, a lawsuit over the constitutionality of the Digital Millennium Copyright Act's anti-hacking provisions remained dormant. The rules prevent people from getting around the access restrictions on copyrighted works such as films, television shows and songs. The Electronic Frontier Foundation led a lawsuit from individuals doing security research who contended that a triennial review from the Librarian of Congress to consider exemptions was fundamentally flawed" and has an "adverse impact on speech." On June 27, a D.C. federal judge suddenly issued an opinion in the sleepy case. The judge wasn't convinced about plaintiffs' claims of an "unconstitutional speech-licensing regime," seeing content-neutral restrictions, but nevertheless gave plaintiffs a green light to show that the DMCA provisions "burdens substantially more speech than is necessary to further the government’s legitimate interests." Here's the full opinion. On Thursday, the plaintiffs told the court that they intend to file a renewed motion for a preliminary injunction.
— Ahmed Al-Rumaihi, the Qatari with alleged connections to all sorts of controversial figures in Donald Trump's orbit, has been given an exit from a lawsuit brought by BIG3 basketball, co-founded by rapper-actor Ice Cube and Hollywood executive Jeff Kwatinetz. On Thursday, a federal judge accepted Al-Rumaihi's bid for diplomatic immunity upon a new ambassadorship. The judge ruled that BIG3's claims against other investors in the league may be arbitrable and delegated responsibility for that decision to an arbitrator. Here's the ruling.
—Ja Rule has for the moment escaped a lawsuit over the infamous Fyre Festival, as a judge has ruled that plaintiffs haven't sufficiently pled fraud and unjust enrichment claims against him.
—Paul Haggis has been ordered to give up a sample of his DNA to Haleigh Breest, who alleges the Crash director raped her in 2013. Haggis insists the sexual encounter was consensual. The judge rules the DNA sample "would appear to be material and necessary to the prosecution of plaintiff's case."
—Herrick Productions, whose films include 2 Guns and Lone Survivor, is now suing Mattel on the claim that the toy company stole an idea for a television show where inventors pitch their toys to child judges for evaluation.
—THR Power Lawyer Louis Petrich is taking his team to Ballard Spahr. The attorney is one of the longest-working ones in Hollywood, whose work has spanned Rear Window to The Wolf of Wall Street. As Leopold, Petrich & Smith closes shop, Petrich is joined at Ballard Spahr by Vincent Cox, Donald R. Gordon, Robert S. Gutierrez, Elizabeth L. Schilken, and Loralee Sundra.