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Recent SDNY Decisions


by Andrea L. Calvaruso

As you may have seen, the Southern District of New York issued some new decisions of interest in the last week:

  • In re: Autohop Litigation, case number 1:12-cv-04155, in the U.S. District Court for the Southern District of New York

As you know, last year ABC, CBS, NBC, and Fox filed a lawsuit in the Southern District of New York against Dish Networks Corp. over the “PrimeTime Anytime and AutoHop” features available on certain of Dish’s digital video recorders (DVRs). ABC applied for a preliminary injunction to block Dish subscribers from using the AutoHop features on Dish’s Hopper DVRs which allow consumers to skip commercials in broadcast shows. On September 18, in an opinion and decision currently under seal, the judge denied ABC’s request and also denied Dish Network's motion to dismiss counterclaims made by CBS Corp. We look forward to reading the decision when it is released.

  • TufAmerica Inc. v. Diamond, 12 Civ. 3529 (AJN), in the U.S. District Court for the Southern District of New York.

In TufAmerica Inc. v. Diamond, the licensee of copyrights owned by the musical group Trouble Funk sued the members of the Beastie Boys group and various recording studios for copyright infringement. Plaintiff alleged that the Beastie Boys unlawfully sampled a number of Trouble Funk’s song on several hit albums. The allegedly infringing six samples were between 1 to 6 seconds long. The court issued an opinion and order dismissing most of the copyright infringement claims against defendants. The court determined that since the copying was an example of “fragmented literal similarity” the question at this stage was “whether (as to each sample) Plaintiff has plausibly alleged that the sample is quantitatively and qualitatively important to the original work such that the fragmented similarity becomes sufficiently substantial for the use to become an infringement.” The court found that four of the six samples did not meet the qualitative and quantitative threshold necessary and granted dismissal of the copyright infringement claims as to those samples. However, for the remaining two samples (the “Say What” and “Let’s Get Small” samples) the court found that the Plaintiff did meet the threshold, and denied the dismissal of the infringement claims as to those samples. Thanks to Barry Werbin for forwarding a copy of the decision.