Veveo, Inc. v. Comcast Corp. et al. (18-cv-10056).

Veveo filed suit against a variety of Comcast entities alleged to do business in Massachusetts, accusing them of infringing U.S. 7,779,011 and 7,937,394, which relate to network-based searches on cable set-top boxes and other devices using numeric keypads. Veveo alleges that it had provided information on the technology to Comcast under a confidentiality agreement, and Comcast eventually licensed the technology.  When Comcast developed its own search technology and terminated the license in 2013, Veveo sued Comcast for patent infringement, which it voluntarily dismissed after Comcast assured Veveo it would reenter business dealings with Veveo.  A second suit was filed in 2016 in the Sourthern District of New York, asserting the patents-in-suit as well as others belonging to Rovi, Veveo’s corporate owner; that case is stayed pending inter partes review of the ‘696 patent and the Rovi patents.  An ITC complaint was also filed by Rovi, resulting in a ban on importation of Comcast infringing set-top boxes.  Veveo asserts that, despite the ITC ruling and the fact that every other major pay-TV provider in the United States licenses the Rovi/Veveo technology, Comcast continues to provide infringing search functionality without taking a license.  Veveo seeks preliminary and permanent injunctions and enhanced damages for willfulness.

The Atomic Café et al. v. Roy et al. (17-cv-11927).

Judge Talwani allowed in part and denied in part a joint motion for a protective order. The motion was allowed insofar as it governed exchange of documents and information between the parties.  The motion was denied without prejudice, however, insofar as it purported to designate what the court would allow to be filed under seal.  In keeping with past practice, Judge Talwani propounded a strong defense of the presumptive public right of access to judicial documents, whereby only the most compelling reasons would permit the filing of documents.  To that end, a party seeking to impound must show, on a document-by-document basis, a particular factual demonstration of potential harm by making a document or other information public.

Premium Sports, Inc. v. Pontes et al. (18-cv-10037).

Premium Sports sued the Somerville Sports Club, as well as its owners and operators, accusing them of improperly intercepting the satellite signal for a soccer match between Sporting CP and Porto of the Primeira Liga, the premier league of Portugal. Premier Sports claims to have had the exclusive rights to the U.S. distribution of the game.  Aside from copyright infringement claims, Premier Sports asserts violation of 47 U.S.C. 605 (a), which prohibits the unauthorized reception and broadcast of foreign communications, and 47 U.S.C. 553, which prohibits the unauthorized reception, interception and exhibition of communications offered over a cable system, The case is assigned to Judge Woodlock.

Koninklijke Philips NV et al. v. Wangs Alliance Corp. d/b/a/ WAC Lighting Co. (14-cv-12298).

Following construction of the claims, Judge Capser denied Philips’ motion for summary judgment of validity. WAC had sought inter partes review on several grounds, some of which were denied.  Judge Casper, citing to Shaw Industries Group v. Automated Creel Systems, found that the Federal Circuit had determined that the estoppel resulting from an unsuccessful IPR did not apply to grounds that were not instituted by the PTO.  Judge Casper denied WAC’s motion to compel the deposition of the named inventor of one of the patents-in-suit for lack of relevance.  WAC had asserted that the inventor’s testimony was relevant on patent practices at the time the application was filed, prior art, the problem the patent allegedly solves, the underlying development of the technology claimed in the patent, the alleged contribution of each inventor to the patent, and the facts and circumstances surrounding the alleged invention.  The problem was that none of these issues related to any claims or defenses of WAC, thus making these issues irrelevant.  The court specifically noted, however, that the inventor was no longer an employee and was a resident of France, suggesting that the relevancy might have been sufficient had the witness been more readily available, but did not outweigh the inconvenience of making the witness appear.

Malden Transportation, Inc. et al. v. Uber Technologies, Inc. et al. (16-cv-12538).

In a series of consolidated cases (discussed further here and here), a large number of Boston-area cab companies accuse Uber, as well as Uber founders Travis Kalanick and Garrett Camp, of unfair competition in violation of Massachusetts state and common law, and some of the plaintiffs further allege that Uber violated state and federal antitrust law, interfered with advantageous business relationships, engaged in civil conspiracy and aided and abetted unfair competition. Kalanick and Camp both moved to dismiss the claims against them as individuals.  Judge Gorton granted this motion, finding that the plaintiffs had failed to allege specific facts demonstrating either general or specific jurisdiction – the complaint alleged only that the two formed Uber while in California and that Uber had undertaken activities in Massachusetts, but failed to identify any activities the individuals, as opposed to the company, had directed towards this forum.

As to the claims against Uber, Massachusetts passed a law in August 2016, the “TNC Act,” that pre-empts local municipalities from regulating ride-sharing companies like Uber, and the plaintiffs agree that this precludes Uber’s post-enactment activity. With respect to the pre-enactment activity, Judge Gorton found that, absent the TNC Act, Uber’s activities fell within the Boston municipal taxi regulations.  Accordingly, allegations that Uber did not comply with the taxi regulations or incur the concomitant costs to gain an unfair advantage and cause economic injury sufficiently stated a cause of action for the statutory and common-law unfair competition claims.  The court likewise denied the motion to dismiss with respect to claims that Uber conspired with its independent contractor drivers to violate the taxi rules.  Judge Gorton allowed Uber’s motion to dismiss claims that Uber and its drivers, as an employer and employees (as opposed to independent contractors – it is not yet clear what status the drivers will ultimately be deemed to have held), conspired to violate the taxi regulations, because with the individual founders having been dismissed, this would effectively allege that Uber conspired with itself to do so, a claim that is untenable.  Judge Gorton dismissed claims for interference with advantageous business relationships because the complaint did not allege interference with any specific anticipated business relationship, and the plaintiffs’ allegations regarding interference with people seeking for-hire ride services generally was not sufficiently specific.  Finally, Judge Gorton also dismissed the antitrust claims.  Those claims were based on a predatory pricing theory whereby a company sells products or services below its costs, hoping to drive competitors out of the market, at which point the company can raise its prices due to its monopoly position.  The complaint did allege that Uber had lost “billions of dollars” (which seems to be accurate), but this was found to lack the particularity required of the antitrust laws.

Monsarrat v. Brian Zaiger dba Encyclopediadramatica.se (17-cv-10356).

Jonathan Monsarrat had sued Brian Zaiger, alleged to be the owner and administrator of the website Encyclopedia Dramatica, for copyright infringement relating to a June 2000 MIT graduation photograph published on Encyclopedia Dramatica. Encyclopedia Dramatica, which Monsarrat characterizes as similar to Wikipedia but hosting offensive and unsourced articles catering to internet “trolling” culture, is accused of altering a photograph of Monsarrat in an MIT mascot costume to associate the mascot, and thus Monsarrat, with an internet meme “pedobear,” a mascot for pedophiles.  Monsarrat initially served a take-down notice relating to the altered photo in January 2011; the website was then taken down in its entirety, only to resurface under a different country domain.  Over the course of the next several years, Monsarrat sent several take-down notices to domain registrars and agents, but could not identify Zaiger as the owner of the site due to Zaiger’s use of anonymous acronyms to disguise his identity.

When Monsarrat ultimately filed suit on March 2, 2017, Zaiger moved to dismiss the complaint as time-barred, which Judge Saris has granted. The complaint made clear that Monsarrat knew of the alleged copyright infringement since at least 2012, well earlier than the three-year statute of limitations permits. Judge Saris rejected Monsarrat’s argument that the limitations period does not begin until the identity of the infringer is known to the accuser, noting that suits against unnamed parties are common.  Zaiger’s counterclaim under 17 U.S.C. 512(f), alleging knowing misrepresentation that the photograph is infringing, remain in effect.