Pissed Consumer Gets To Go After Roca Labs For Its Bogus DMCA Takedowns

from the well,-this-could-be-interesting dept

Remember Roca Labs? The somewhat shady manufacturer of some goop that the company claimed was an “alternative to gastric bypass surgery.” This was the company that initially sued the site PissedConsumer.com because it was hosting negative reviews of Roca’s product — and Roca claimed that because it pressured buyers into a gag clause saying they wouldn’t say anything bad about the product, that PissedConsumer was engaged in tortious interference. There was a lot more as well, including threatening to sue us at Techdirt (more than once!) for reporting on the case, suing Pissed Consumer’s lawyer Marc Randazza for defamation and a variety of other shenanigans (even including some bizarre side stories on Nevada politics, despite it being a Florida company). Anyway, late last year the FTC smacked down Roca for its misleading marketing and its non-disparagement clauses. Roca is still fighting that fight, but soon after it also lost the case against PissedConsumer.

However, there was (yet another) separate legal fight that didn’t get much attention in all of this. In late 2014, we had reported that, in continuing with its efforts to hide any negative reviews, Roca Labs had sent a clearly bogus DMCA takedown to Google (see it here), claiming that the reviews on PissedConsumer’s site violated its copyrights. What I had not realized was PissedConsumer actually had filed a separate lawsuit against Roca back in January of 2015, focused solely on these bogus DMCA takedowns, arguing that they had violated the infamous DMCA 512(f) clause on bogus takedowns.

As we’ve noted, 512(f) cases are rarely successful, as courts don’t seem to care much about them, and the law is written in such a manner that it’s usually pretty easy to dance around a claim of “misrepresentation” in a DMCA takedown. And, in this case, the court dismissed the case, by basically saying that it was really nothing more than a counterclaim in the other, original, case filed by Roca. However, in a somewhat surprising move (actually, very surprising), the court has now agreed that the decision to dismiss the case was a mistake, and that this is a separate issue from the original case, and not a counterclaim. The reasoning is somewhat technical and procedural, but at the very least, it appears that the case against Roca for abusing the DMCA is back on track.

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Companies: pissed consumer, roca labs

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Comments on “Pissed Consumer Gets To Go After Roca Labs For Its Bogus DMCA Takedowns”

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That Anonymous Coward (profile) says:

I can only hope that the case gets to go forward. It would be nice to show in court how easily even the most bogus and outrageous claims get a pass because the law is far to easily abused.

Given how Roca enjoys fighting losing battles, there is a very nice chance we might end up with great caselaw to cite moving forward.

DannyB (profile) says:

Re: Re:

More than just going forward, I hope:

* it sets a precedent

* that ‘under penalty of perjury’ thing gets taken seriously

* there is some punishment for perjury that has real teeth

* lawyers, who should know better, should also receive serious sanctions for misusing the DMCA

This could be the first case that could make bogus DMCA filers think twice.

Of course, I would still like to see a $150,000 per instance, statutory penalty for filing a bogus DMCA. If the DMCA itself has teeth, then the penalty for frivolously misusing it must also have teeth.

Anon E. Mous (profile) says:

Roca and it;s people in charge honestly must be somewhat delusional in their attempts to silence their critics thru lawsuits. As these cases drag on and on, all they have to show for their efforts is a high legal bill and attention to their brand that they were trying to avoid in the first place.

Roca has done exceptionally the wrong things to avoid attention thru the use of force of legal might. It seems every step they have taken has gone against them.

The fact that Roca brought more attention to themselves and their product, just goes to show you how bad a strategy this was in my opinion, I would have to think their chief strategist was someone named Wylie E. Coyote , but even Wylie was smart enough to walk away when the going got tough.

Roca much like Suburban Express will live on in infamy for the attention it brought to itself and it’s product that many folks had never even heard of, but now know of and would be wary of going near.

Whatever says:

Bullcrap, major, major bullcrap. Fair use was clearly not established in this case, but since this site is staffed by pirates expecting you to understand the nuances was too much for your inferior minds. Like Ninja, who can’t think past the end of his nose.

Nice try, but a true fail. And since PaulT won’t stop hounding me I refuse to log in this time. Go ahead, report me!

Another View says:

I dont know why you do not find this offensive. This is very obviously a SLAPP suit filed by the Randazza firm. Roca Labs sent a letter to someone and so they got sued for it? Why? What harm did they do in doing that? And he wants to file this case because it is part of the copyright law? This is being a troll. Techdirt should be ashamed of itself for saying anything positive about this.

Not SLAPP says:

Re: Re:

How, exactly, is it a strategic lawsuit against public participation? Was the DMCA notice a comment on a matter of public concern, or simply an attempt by Roca to remove the comments of others commenting on matters of public concern?
Which part of the 512(f) claim do you think is legally wrong? A DMCA letter was sent. Check. Do you think Pissed Consumer’s use of thumbnails of a site isn’t fair use? If Wayne Hoehn can repost an entire article for fair use purposes, isn’t a thumbnail even fairer? Shouldn’t Roca have known that it was?
Please astound us with your legal insight.

Dave says:

Wait, a judge changed her mind? In FLORIDA? I don’t think anyone saw that coming. With someone this wishy-washy presiding over the case, who knows what will happen?

I’m unclear on why Pissed Consumer decided to file a motion for reconsideration AFTER appealing the order. Isn’t it supposed to be the other way around so that the appeals court is truly your last resort?

And as for the guy calling this a SLAPP suit, that’s not how this works, unless you think that every claim under Section 512(f) is a SLAPP suit. Besides, the DMCA takedown notice is more concerned with trademark than copyright law, which should automatically create liability under 512(f).

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