XonDemand, according to attorney Clyde DeWitt, now seeks to have the case thrown out.
Private contends in the suit filed in August that XonDemand streamed content for more than three years after a 50 percent revenue-sharing contract was terminated in 2007 between the two companies.
The Barcelona-based company said it discovered in May that XonDemand was "committing over 30 separate instances of copyright infringement and over 1,000 separate and distinct instances of trademark infringement" by continuing to rent Private videos by the minute or flat rate.
But DeWitt told XBIZ that Private never gave notice that it was terminating its contract with XonDemand and that the Private "continued to accept payments for commissions for over a year and a half after the alleged termination."
"They claim to have terminated the relationship, but kept cashing the commission checks, which begs the question, 'Why didn’t they send the checks back?' ” DeWitt asked.
DeWitt filed a motion for summary judgment this week to have the case thrown out.
"All of the content licensed to XonDemand by Private [through its Fraserside Holdings division] was removed from the XonDemand library in July 2010, immediately after someone at XonDemand learned of this lawsuit," the motion said. "XonDemand had no knowledge of any termination notice prior to then."
Private has yet to respond to DeWitt's motion for Hatboro, Pa.-based XonDemand, but the company plans on contesting the latest response.
Jason Tucker, Private's intellectual property enforcement agent, told XBIZ he couldn't elaborate on Private's response to the court but said, "We don't file blind cases. There's more to it."
