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.

House passage Wednesday of the Register of Copyrights Selection and Accountability Act (HR-1695) drew statements of expected praise from a swath of content-side industry groups and opposition from library groups and some tech sector stakeholders. The House voted 378-48 for the bill, which would make register a presidentially appointed, Senate-confirmed position with a 10-year term (see 1703230068 and 1704260062). House Judiciary Committee Chairman Bob Goodlatte, R-Va., and ranking member John Conyers, D-Mich., said they “remain committed to working with all members and stakeholders to take additional steps to ensure the [Copyright Office] is modernized so that it functions efficiently and effectively for all Americans.” MPAA Chairman Chris Dodd said “making the Register a nominated and confirmed position recognizes the importance of the [CO], increases accountability to Congress, and provides transparency to the public.” Copyright Alliance CEO Keith Kupferschmid lauded the House’s vote margin in favor of the bill as evidence of “tremendous bipartisan support.” National Music Publishers' Association President David Israelite said the bill “not only adds the oversight needed to ensure [the register position] is filled by someone up to the challenge, it also elevates the position to where it always should have been -- amongst the ranks of the top officials within the administration. Additionally, the 10-year term will assist in maintaining continuity in the role across administrations.” The bill “is the first step in a shift towards recognizing creators’ value and the news media industry that sustains an informed and democratic society,” said News Media Alliance President David Chavern. The American Library Association “urges all Senators to take special note of what the bill isn’t,” said President-elect Jim Neal. “Despite the arguments of its proponents, it isn’t related to [CO modernization], which it will impede. It isn’t about protecting or advancing the long-term interests of all Copy­right Office stakeholders, just its most powerful ones. And, by oddly out­sourc­ing appointment of the Legislative Branch’s own copyright advisor to the Executive Branch, it isn’t the way for Congress to get the nonpoliticized counsel about fairly balanced copyright law on which the economy and public interest depend.” The Electronic Frontier Foundation will “continue to fight this bill as it comes before the Senate,” said Policy Strategist Kerry Maeve Sheehan in a blog post.

The White House said Tuesday it sent President Donald Trump's nomination of House Judiciary Committee Senior Majority Counsel Vishal Amin as the White House’s intellectual property enforcement coordinator to the Senate. Stakeholders have seen Amin's nomination as an opportunity for the Trump administration to shape IP rights enforcement policy, but it’s unclear whether there will be a fundamental shift (see 1704100067). The Senate Judiciary Committee will handle Amin's confirmation hearing.

The D.C. Circuit Court of Appeals ruled Tuesday that SoundExchange can proceed with a previously dismissed lawsuit against digital music provider Mood Media over underpaid royalties. SoundExchange claimed Mood was “playing a shell game to cheat artists” out of royalties by improperly claiming the lower “preexisting subscription services” (PSS) royalty rate granted to Mood's Muzak subsidiary under the Digital Millennium Copyright Act also applied to Mood's other services. District Court Judge Royce Lamberth dismissed SoundExchange's complaint last year in Washington, D.C., saying there was “clear evidence” the DMCA allowed Mood's other services to claim the lower royalty rate. A three-judge D.C. Circuit panel acknowledged that “although the case is close -- the controlling statute is dreadfully ambiguous -- we conclude that SoundExchange has the better position.” DMCA is “quite unclear” on what constitutes a PSS grandfathered in under DMCA and precedent is even more murky because the Copyright Office issued an opinion in 2006 that determined Muzak was one of only three PSS services that qualified for the grandfathered rate, Senior Circuit Judge Laurence Silberman said in the panel's opinion. Circuit Judges Thomas Griffith and Judith Rogers also voted to reverse the D.C. district court. But the Copyright Office also said in its opinion its ruling should be narrowly interpreted and “we should respect” that interpretation guide, Silberman said for the panel. “The grandfather provisions were intended to protect prior investments the three business entities had made during a more favorable pre-1998 rate-setting regulatory climate,” the panel said. “But when Muzak expands its operations and provides additional transmissions to subscribers to a different 'service,' (i.e., SonicTap), this is an entirely new investment.” The “better interpretation of the statute” is that the term service “contemplates a double limitation” in which “both the business and the program offering must qualify before the transmissions are eligible for the favorable rate,” the court said. SoundExchange and Mood didn't comment.

A serious push to enact the Fair Play Fair Pay Act (HR-1836) “will be politically challenging,” said Tom Sydnor, visiting fellow at the American Enterprise Institute's Center for Internet, Communications and Technology, in a Tuesday blog post. “Nevertheless, from international, national, and economic perspectives, it remains what it has always been -- a 'public-policy no-brainer.'” HR-1836, refiled in March (see 1703300064), would require most terrestrial radio stations to begin to pay performance royalties. Attempts to enact a terrestrial performance right have been lightning rods for broadcaster criticism (see 1702020064 and 1703030059). The “principle of technological neutrality” created in the 1976 Copyright Act “strongly suggests the propriety of eliminating the analog-broadcast-radio exception to [U.S.] public performance rights,” Sydnor said. “It makes no sense for [U.S.] copyright laws to give -- for free -- to radio broadcasters who use old, analog technologies public-performance rights that providers of satellite or internet-based radio-like services must pay for under existing [U.S.] compulsory licenses.” U.S. copyright laws should be “just as applicable and broadly construed as applied to later-developed 21st-century distribution technologies as they were to distribution technologies developed and deployed well before 1976,” Sydnor said.

Comments on the NPRM on eliminating the annual International Bureau traffic and revenue reports and circuit capacity reports will be due in 30 days, with replies due 15 days after, said an FCC notice to be published in Monday's Federal Register. Commissioners approved the bureau reporting NPRM at their March 23 meeting (see 1703230042).

Customs and Border Protection again said a redesign of network switches imported by Arista Networks falls outside of an International Trade Commission limited exclusion order, Arista said in an SEC filing. Arista is in litigation with Cisco over patent infringement allegations (see 1701170063). The ruling, sent to Arista April 7, is a reversal for CBP, after the agency revoked a similar finding in January. "CBP has issued instructions to the U.S. ports to permit entry of the Company’s redesigned products for consumption and sale," Arista said Tuesday. The ruling followed an "inter partes process" that included "extensive briefing by both parties and a hearing during which both parties presented their arguments," Arista emailed.

WWE is pursuing across multiple courts an array of John Doe defendants who allegedly illegally copied and distributed its video content online. The company in a motion (in Pacer) for discovery filed Tuesday in U.S. District Court in Honolulu asked for a green light to serve a third-party subpoena on Hawaiian Telcom and Time Warner Cable (part of Charter Communications) for the identities behind IP addresses responsible for BitTorrent distribution of its motion picture Eliminators. Monday, WWE sued an array of other John Does in U.S. District Court in Philadelphia and said in its suit (in Pacer) they're all Comcast subscribers and it plans to seek discovery including a subpoena of Comcast records for their true identities. U.S. Magistrate Judge Nancy Koppe of Las Vegas earlier this month approved a WWE ex parte motion (in Pacer) attached to another WWE piracy suit, letting it subpoena unnamed ISPs for John Doe information. WWE has pending motions (here and here, in Pacer) in U.S. District Court in Bridgeport, Connecticut, and with another federal suit in Las Vegas about serving ISPs with third-party subpoenas regarding piracy of its video content. The ISPs didn't comment Wednesday.

Samsung abandoned its bid at the Patent and Trademark Office to register “HDR10" as a trademark for a wide range of possible commercial and consumer devices and applications (see 1703150031), PTO records show. Samsung left intact its application to register “HDR10 Plus.” HDR10 has been in routine, ubiquitous industry use as standard nomenclature for perceptual-quantization-based, SMPTE-compliant high-dynamic-range products and service. Samsung representatives didn’t comment further.

The 9th U.S. Circuit Court of Appeals' ruling in Mavrix Photographs v. LiveJournal “will be a lifeline to content creators who are being destroyed by mass infringement online,” Mavrix lawyer Peter Afrasiabi of law firm One e-mailed us Monday. A three-judge 9th Circuit panel ruled Friday that Digital Millennium Copyright Act Section 512 safe harbor provisions don't shield LiveJournal from infringement lawsuits in some instances because the company's cadre of volunteer moderators had a significant amount of control over the nature of user-generated content posted on the social media platform (see 1704100040). “LiveJournal, like so many online businesses, encourages users to upload content they don’t own so LiveJournal can display it and reap advertising revenues,” Afrasiabi said. “Then they try to hide behind the DMCA safe harbors to avoid liability for known infringements. This decision is an important first step in putting an end to that business model.”