Rightscorp Wins Anti-SLAPP Claim Against Guy Who Sued After Being Bullied With Robocalls

from the well-there-goes-that-idea dept

Back in November, we noted a class action lawsuit filed against Righstcorp in California, arguing that its process of shaking people down with robocalls violated various laws. In the first amended complaint, the plaintiff, John Blaha, focused on two issues: (1) that the robocalls violated the Telephone Consumer Protection Act and (2) that the use of DMCA 512(h) subpoenas were an “abuse of process.” As we discussed, every few years, copyright trolls think they’ve rediscovered 512(h) and think they’ve found a magic key that lets them send subpoenas to ISPs, identifying people to shake down, without first filing a lawsuit. Of course, over a decade ago, a court soundly rejected that argument in a case the RIAA filed against Verizon, pointing out that if the RIAA wanted to find out names from Verizon it had to file a lawsuit first.

In response to this, Rightscorp (and Warner Bros., a Rightscorp client) tried to get the abuse of process claims tossed, by arguing they violated the First Amendment, and were subject to California’s anti-SLAPP law. Now, as you know, I’m a huge supporter of anti-SLAPP laws, and California’s is pretty good. But it seemed like a huge stretch to argue that the class action lawsuit was an attempt to stifle Rightscorp’s free speech rights. Unfortunately, the court disagrees, and says that the abuse of process claim should get tossed thanks to the anti-SLAPP law.

The court points out that the subpoena is clearly protected under the anti-SLAPP statute, and thus, there’s the question of whether the lawsuit is likely to prevail. It notes that, for an abuse of process case, the plaintiff needs to show an “ulterior motive” and that the actions were committed willfully “in the use of the process not proper in the regular conduct of the proceedings.” Unfortunately, the court doesn’t see either as being the case. It notes no “ulterior motive” by Rightscorp:

The first fatal deficiency in Plaintiff?s abuse of process claim is that Plaintiff raises no ulterior motive in Defendants? use of the subpoenas. Whether or not § 512(h) subpoenas should validly be issued under the circumstances in which Defendants sought them, there is no allegation and no evidence that Defendants sought to do anything other than what their subpoena requests indicated ? identify potential copyright infringers for the purpose of pursuing Defendants? rights under the Copyright Act. Plaintiff?s extensive discussion of the elements of abuse of process… can be summarized as a view that seeking and obtaining some form of court order that should not have been issued is sufficient to satisfy both elements of the abuse of process tort. But, despite extensive rhetoric, Plaintiff provides no authority for this view and the most relevant authority is against it…. Again, the only ?ulterior motive? identified by Plaintiffs is the motive disclosed on the face of the subpoena requests…. A disclosed motive is, by definition, not ulterior.

The issue here is basically this: those of us who follow copyright trolling know perfectly well that these subpoenas have an “ulterior motive,” which is to shake down a large number of people for money. The problem, though, is that the court sees the specific aspects of the subpoena — identifying a potential infringer — as well within the proper bounds of going after them for copyright infringement. Whether or not the motive is an “ulterior” one seems to depend on if you view the overall process to be “filing a lawsuit against an alleged infringer” (as the court does) or “shaking down as many people as possible, with no intention of ever really going to court” (as people who follow copyright trolls know is the actual situation). And, while it’s true that the first step in both processes is basically the same, this case is arguing that there’s an ulterior motive in the eventual plan, but the court is basically saying that doesn’t really matter at this point.

The court also claims that Rightscorp’s subpoenas are protected by litigation privilege — which is another concept that (like anti-SLAPP laws) tends to be a good thing for free speech — which says that no tort can arise from statements made during litigation. But here’s the problem with that: this isn’t really litigation. Rightscorp isn’t suing people. It’s just using the court system to get contact info and then launching the robocalls. Still, the court argues that since the 512(h) subpoenas are communications via a court, litigation privilege covers it. While the complaint points to the later shakedown letters, the court (rightly) notes that those letters are not part of the 512(h) subpoena, and thus are not part of the “abuse of process” claim.

The entirety of Plaintiff?s claim is based on communications by Defendants to various courts in order to acquire subpoenas. Plaintiff?s opposition misses the point by focusing on the later communications made by Defendants to the now-identified potential infringers. But these communications are not the basis of the abuse of process claim; the complaint is clear that the abuse of process is alleged to have occurred when Defendants obtained (and served)4 the subpoenas knowing that the subpoenas were improper under the law.

The case is far from over, and I still have some problems with the way the court ruled here, but if I have to be wrong, at least I’m wrong in a way that says California’s anti-SLAPP law is strong.

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Companies: rightscorp

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Comments on “Rightscorp Wins Anti-SLAPP Claim Against Guy Who Sued After Being Bullied With Robocalls”

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52 Comments
antidirt (profile) says:

Let’s review just how wrong Mike was.

In the earlier post, Mike made the unsupported claim: “But that’s not true at all. It’s hard to see how anyone can argue that merely filing a subpoena for information is protected free speech.”

In Mike’s view of the First Amendment and the Anti-SLAPP statute, petitioning the court is not protected activity.

In the comments, I said: “Yeah, that’s one of the funnier things Mike has ever claimed. Funny how blinded he is by his own double standards. Funny too how he completely ignores the part of the First Amendment (and the anti-SLAPP statute) that refers to the right of petition, and he pretends like the 512(h) thing is settled law when the Ninth Circuit has never addressed it. Reporting! Analysis! Techdirt!”

Now we have the court completely rejecting Mike’s position. The point is so obvious, the court spends only three sentences discussing it: “There is no question that the complained of conduct satisfies the first prong of the anti-SLAPP statute. The entire claim is based on Defendants’ representations to various federal courts in order to convince those courts to issue subpoenas. This kind of action is specifically defined as protected action by § 425.16(e).”

Does Mike correct his mistake in ignoring the right to petition secured by the First Amendment and protected by the Anti-SLAPP statute? Of course not. He doubles down: “But it seemed like a huge stretch to argue that the class action lawsuit was an attempt to stifle Rightscorp’s free speech rights. Unfortunately, the court disagrees, and says that the abuse of process claim should get tossed thanks to the anti-SLAPP law.”

It wasn’t a “huge stretch” at all. There was “no question.” People have a First Amendment right to petition the courts for redress. It is an important and fundamental right. But Mike doesn’t think copyright owners and agents should have that right. He can’t even understand how the First Amendment is implicated at all.

Hilarious!

Just imagine how freaked out Mike would be if, say, the MPAA argued that the EFF couldn’t even petition the court. He would go absolutely apeshit. But here, it’s perfectly OK. First Amendment? What’s that? Prior restraint? Never heard of it.

Best of all, the only one who appears to be abusing things here is the plaintiff. Does Mike criticize the plaintiff’s attempt to take away Rightcorp’s First Amendment right? Of course not. Abuse is good, as long as it’s against people he doesn’t like. The double standard is alive and well on Techdirt. Always has been. Always will be.

Kudos, Mike!

antidirt (profile) says:

Re: Re: Re:

Their stock price is also gloating from this massive victory you speak of – $0.074…down 4%.

Congratulations, dipshit.

Nice straw man. Who cares about the share price? Not me. I think they’re going to continue losing on the DMCA subpoena argument. That’s a completely separate issue from whether they have a First Amendment right to seek those subpoenas from the court in the first place. It’s amazing to me–simply amazing–how you guys turn off your concerns about constitutional rights just because you don’t like somebody. Double standard.

Anonymous Coward says:

Re: Re: Re: Re:

Nice straw man.

Thanks!

Rightscorp will care about the share price, prolly right around the time it goes to $0.04…then they’ll think about how much this litigation is costing them.

So yeah, it’s a straw man. But let’s not pretend it doesn’t matter. Court costs add up, and if anyone should know, it’s copyright trolls.

Karma’s such a bitch.

Mike Masnick (profile) says:

Re: Re:

Just imagine how freaked out Mike would be if, say, the MPAA argued that the EFF couldn’t even petition the court. He would go absolutely apeshit. But here, it’s perfectly OK. First Amendment? What’s that? Prior restraint? Never heard of it.

If EFF were “petitioning the court” solely for the sake of abusing the legal system to identify anonymous individuals in order to shake them down for cash, rather than for the purpose of actually filing a lawsuit… well, yeah, I’d have a problem with it.

I still don’t see how abusing the court system just to identify anonymous individuals for the sake of extorting them is legitimately “petitioning the court” under the First Amendment, but alas, it’s clear that the court says I’m wrong. And I’m perfectly willing to admit that the court disagrees with me.

That One Guy (profile) says:

Re: Re: Re: Re:

Correction:

Sending demands for absurd amounts to accused pirates for allegedly breaking the law.

If they really cared about ‘penalizing pirates’, then they’d be taking them to court, but surprise surprise, they seem to do everything they can to avoid doing that, even to the point of dropping cases entirely if their target fights back, probably because their ‘evidence’ is ridiculously weak, and they have no interest in anything other than making a quick buck by shaking down those who don’t feel like being dragged through the court-system just to prove their innocence.

That One Guy (profile) says:

Re: Re: Re:5 Re:

Once again, if they, or any of the other extortionists had actual evidence, and were in this to ‘penalize pirates’, then why do they do everything they can to never take it to court?

Their ‘evidence’ is laughably weak(an IP address does not equal a specific person, as any technologically skilled person could tell you), they know it, and they know if they took it to court any even semi-competent lawyer would be able to tear it to pieces, which is why they always try and avoid even stepping foot in a courtroom when there’s an opposing lawyer in the room.

Anonymous Coward says:

Re: Re: Re:5 Re:

You mean like how Rightscorp has been failing to make money, but Robert Steele tells his investors that everything is fine anyway?

If they didn’t pull those numbers out of nowhere how is it that no one has ever been charged?

If someone accused you of something and demanded money to go away would you pay up without question?

antidirt (profile) says:

Re: Re: Re:

If EFF were “petitioning the court” solely for the sake of abusing the legal system to identify anonymous individuals in order to shake them down for cash, rather than for the purpose of actually filing a lawsuit… well, yeah, I’d have a problem with it.

They are asking the court for the subpoenas so they can identify the subscribers. That’s the purpose of the subpoenas. It’s not an ulterior motive. It’s a proper motive. Whether they sue the unmasked subscribers, or whether they offer to settle for some amount of money, matters not.

I still don’t see how abusing the court system just to identify anonymous individuals for the sake of extorting them is legitimately “petitioning the court” under the First Amendment, but alas, it’s clear that the court says I’m wrong. And I’m perfectly willing to admit that the court disagrees with me.

Because everyone has a First Amendment right to petition the court. Requesting a subpoena falls under that protection. Are you seriously suggesting that Rightscorp should not be able to petition the court? I get that you don’t like what they’re doing, but I find it hilarious that you’d deny them the constitutional right of petition. The fault in your conspiracy theory approach is that you’re not separating out asking the court to take action vs. the merits of that request. You have a right to ask the court for something, even if the court ultimately denies the request and sanctions you for being frivolous. This is basic, simple stuff.

That One Guy (profile) says:

Re: Re: Re: Re:

They are asking the court for the subpoenas so they can identify the subscribers. That’s the purpose of the subpoenas. It’s not an ulterior motive. It’s a proper motive. Whether they sue the unmasked subscribers, or whether they offer to settle for some amount of money, matters not.

It does when it’s abundantly clear that they have absolutely zero interest in using that information in filing lawsuits, or for any legal action after that point at all.

The courts unfamiliar with this brand of extortion may believe that the information will be used to file lawsuits, acting as a jumping off point for further legal actions against those accused of copyright infringement, but the truth is anything but.

Those demanding the information have no interest at all in going to court with the information they collect, and that absolutely deserves to be taken into account when judging their actions. If they’re going to defend their actions by claiming to be doing them in order to combat copyright infringement, the fact that their actions show time and time again that they’re only in it for a quick buck , to the point that they will drop cases if their target fights back, to pretend that the initial step is in any way related to ‘copyright enforcement’ is a joke.

antidirt (profile) says:

Re: Re: Re:2 Re:

Petitioning a court is a first amendment issue?
That is quite the stretch, sounds more like due process which would be the fifth.

A constitutional law scholar, I see.

First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Anti-SLAPP: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

btw, why do you wear those blinders?

What blinders would those be?

antidirt (profile) says:

Re: Re: Re:4 Re:

Anyone can cut and paste from the web.

Care explaining why the 1st would be applicable and not the 5th which actually addresses due process?

Are you saying that Rightscorp’s due process rights should have been the issue? Do you mean procedural or substantive due process? I’m not sure what you’re even getting at.

Mike Masnick (profile) says:

Re: Re: Re: Re:

Because everyone has a First Amendment right to petition the court. Requesting a subpoena falls under that protection. Are you seriously suggesting that Rightscorp should not be able to petition the court? I get that you don’t like what they’re doing, but I find it hilarious that you’d deny them the constitutional right of petition. The fault in your conspiracy theory approach is that you’re not separating out asking the court to take action vs. the merits of that request. You have a right to ask the court for something, even if the court ultimately denies the request and sanctions you for being frivolous. This is basic, simple stuff

Don’t know why you feel the need to rush to insult.

I see your point in separating out the petition with what they then do with the info. In fact, I may be convinced that this ruling does make sense now.

I’m still troubled by the fact that the petitioning is clearly to abuse the judicial system, but I can see how that can be dealt with at a later stage.

antidirt (profile) says:

Re: Re: Re:2 Re:

Don’t know why you feel the need to rush to insult.

I don’t think I rushed to insult. No need for the dramatics. If you’d like me to take a nicer tone, you could start by removing the IP block you have on my home address. I am a financial backer of your site, after all. It’s been almost two years now that you subject me to your mechanism for prior approval before posting. If you were the government, it would be a prior restraint. You fault the government for this quite frequently, yet you do the same thing yourself. Of course, it’s futile and easily circumvented. You fault others for doing futile and easily circumvented things as well, yet you do it yourself.

I see your point in separating out the petition with what they then do with the info. In fact, I may be convinced that this ruling does make sense now.

I’m still troubled by the fact that the petitioning is clearly to abuse the judicial system, but I can see how that can be dealt with at a later stage.

I’m glad you see it. I think of it as a prior restraint: You can punish someone after they speak or petition the court, but you can’t prevent them from speaking or petitioning in the first place. As far as it being abuse, I simply disagree. It’s certainly not the tort of abuse of process–that claim is frivolous. Pietz’s client will now have to pay for his decision to even bring the claim. See Philly Law Blog: https://phillylawblog.wordpress.com/2015/05/10/bad-things-happen-when-lawyers-stop-representing-clients-and-start-representing-causes-john-blaha-ordered-to-pay-rightscorp-attorneys-fees/

It’s not using the 512(h) subpoena mechanism for a purpose it was not intended. While two other circuits have interpreted in the way you like (in that it does not apply to conduits), the Ninth Circuit has not. Offering to settle with someone when there is evidence that they wronged you is not extortion. I get that the evidence is not dispositive. That doesn’t make it abuse or extortion. You said above that “(f)inancially penalizing those who are guilty of breaking the law is perfectly reasonable.” Can you point to a single post of yours where you defended the rightholder’s actions in protecting its copyright as “perfectly reasonable”? I don’t recall a single time.

CK20XX (profile) says:

Re: Re: Re:3 Re:

I really doubt that any IP blocking is taking place. In fact, people like me occasionally get frustrated with Mike specifically because he refuses to do anything like that, which means that trolls get to spam the comments section with little to no consequences.

What’s funny though is how a lot of trolls end up thinking they’re being punished by Mike when their comments are flagged by the community. I suppose the system works in a way because it allows the reputations of dubious commenters to quickly spiral down into the toilet. It’s so purely democratic that it allows individuals all the rope they want for hanging themselves.

Anonymous Coward says:

Re: Re: Re:4 Re:

>> What’s funny though is how a lot of trolls end up thinking they’re being punished by Mike when their comments are flagged by the community.

First, Masnick is a partisan who controls the forum. He has definitely blocked ME from home IPs. This is NOT an open “platform”, this is Masnick tiny kingdom.

Second, mis-using “report” to suppress ideas IS just plain censorship.

Third, labeling those disagree as “trolls” is just typical of what to expect here.

I was just now BLOCKED after two posts by “free forum” Techdirt. I have to use Tor to get in at all!

Innovator says:

Re: Re: Re:2 "you could start by removing the IP block you have on my home address" TOO!

On topic: Masnick isn’t able to abstract the concept of rights from particular persons (or corporations). Masnick has simply labeled Rightscorp a “bad person”, therefore has no rights at all, exactly as US gov’t labels some “terrorists” and ignores all rights.

When you peel off the libertarian mask, Masnick is just like neo-cons.

Anonymous Coward says:

Over at TorrentFreak thy have an article about RightsCorp fails in bid to unmask Pirates using DMCA.

“Anti-piracy monetization firm Rightscorp has failed in its bid to unmask alleged Internet pirates. The company attempted to use the DMCA to force ISP Birch Communications to expose its customers’ identities but the company stood strong. A federal judge in Atlanta has now ruled in favor of the ISP by quashing Rightscorp’s subpoena.”

http://torrentfreak.com/rightscorp-fails-in-bid-to-unmask-pirates-using-dmca-150511/

Christenson, Armchair Lawyer says:

Blueprint to win in the judgement

The judge is telling the plaintiffs exactly what to do next: Amend the complaint with evidence that the information from the subpoeana is being used for extortion, rather than recovering actual damages or mitigating them:

“Nice internet connection you’ve been paying for there…be a shame if someone dragged you into court for something we put on the net in the first place…now pay up!” I don’t care WHO you are or WHAT you didn’t do on the connection, PAY UP or I’ll break your leg!”

Dear Judge:
The extortion that follows the subpoena is the ulterior motive that is the abuse of process. Why do you think so many courts have placed conditions on what is done with the subscriber information once it is returned from the subpoenas?

Chris O (Producer) says:

Copyright Theft

When Will Copyright Theft Stop??? Most Individuals Have No Idea What It Cost To Make A Movie Or To Record A Record! From Hundreds Of Thousands To Hundreds Of Millions Of Dollars, Then The “Low Life’s” Just “Log On” and Steal The Content For FREE! Last Year At Least $6 Billion Illegally Downloaded!
They Should Be Caught And Pay The $20 Fine For STEALING! Instead, They Hire A Law Firm And Claim Their Rights Have Been Violated And Sue Companies Like Rightscorp Who Represent Major Film & Music Producers & Productions!
Get Over It And Go Our And BUY The CD or DVD!

Anonymous Coward says:

Re: Copyright Theft

When will money grubbing assholes realize that evidence is required in order to prove allegations?

Most idiots who claim copyright infringement have no idea how much it cost to defend against the malicious behavior they think is common everyday activity.

Wild assed claims pulled out of your ass look very impressive online in forums, but rarely are they backed up with evidence. One has to assume this because there is none.

You look confused, did you read the article?

Anonymous Coward says:

Re: Re: Copyright Theft

>> When will money grubbing assholes realize that evidence is required in order to prove allegations?

Ah, but you try to pull the trick that copyright owners must prove a case beyond all reasonable doubt, when the value lost is only a few bucks. That’s obviously not cost-effective so the pirates are advantaged.

I don’t support Rightscorp as such, but to disparage ALL claims to intellectual property, go against all the law in the copyright area that are exactly the compromise that’s been worked out, to say pirates can take whatever they wish of other people’s work, when it’s YOU pirates who are outside of law, that’s just contemptible.

So I’ve become FOR stiff punishments. I just wish that your thefts didn’t cause ME trouble, but bad laws are caused by those who don’t keep their paws off other people’s stuff.

[I was BLOCKED after two posts by “free forum” Techdirt. I have to use Tor to get in at all! Trying again.]

That One Guy (profile) says:

Re: Re: Re: Copyright Theft

Ah, but you try to pull the trick that copyright owners must prove a case beyond all reasonable doubt, when the value lost is only a few bucks. That’s obviously not cost-effective so the pirates are advantaged.

Tough.

The point of the court system is not to allow people to make a quick buck, it’s to punish those who the evidence says are guilty. If the poor little company can’t make a profit because providing sufficient evidence to establish guilt is just ‘too expensive’, too bad, they don’t get to demand that the system be changed so they can.

So I’ve become FOR stiff punishments. I just wish that your thefts didn’t cause ME trouble, but bad laws are caused by those who don’t keep their paws off other people’s stuff.

Incorrect, they’re caused by idiots whining about how it’s not profitable enough to sue people for accused infringement, and want the laws changed so it is. They’re caused by people who would rather kill competition off via the laws, than actually compete. They’re caused by people who care more about ‘protecting’ their stuff than respecting the rights of others, and who don’t care how many innocent people are hit as long as they can say that they are ‘dealing’ with the ‘problem’.

Anonymous Coward says:

Re: Re: Re: Copyright Theft

Who is attempting to “pull a trick” ? I’m sorry that the laws encountered in this country require proof of guilt, but that is just the way it is – deal with it.

So, what you are saying is that one’s access to due process should be directly proportional to the amount of money being sought in the case? This proposal is ridiculous for obvious reasons.

Oh … it’s only a few bucks, you don’t need to prove anything. Just take the money from the mark … errr I mean the defendant. btw, it’s more than a few bucks these wise guys are attempting to extort.

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