Warner Bros. And Rightscorp Argue That Copyright Trolling Is Protected By The First Amendment

from the that's-one-way-to-look-at-it dept

Is the process of copyright trolling protected by the First Amendment? That appears to be the claim that both Rightscorp and Warner Bros. are making in response to a class action lawsuit filed against them.

Back in November, we wrote about a class action lawsuit filed against Rightscorp, by lawyer Morgan Pietz. Rightscorp, of course, is a company trying (and mostly failing) to make copyright trolling slightly more respectable by shaking down accused infringers (based on a questionable methodology) for somewhat lower amounts than traditional copyright trolls. Morgan Pietz, if you don't know, is one of the key lawyers who helped take down infamous copyright troll Prenda Law -- so his involvement was noteworthy.

Since November, when the lawsuit was initially filed, there's been some back and forth in the lawsuit (and even the main named plaintiff has changed). In the first amended complaint [pdf] that was filed last month with new lead plaintiff, John Blaha, the claims about violations of the Fair Debt Collection Practices Act have been removed, to focus mainly on violations of the Telephone Consumer Protection Act and abuse of process. The TCPA bans autodialing telemarketers, and Pietz is trying to argue that Rightscorp's autodialers fall under this law. The abuse of process claims focus on how Rightscorp got access to various people to shakedown, using DMCA 512(h) subpoenas. This is the process -- which courts have clearly rejected -- by which copyright trolls think they can issue subpoenas to ISPs about potential infringers, without first filing a lawsuit. Every few years, copyright trolls think they've newly discovered this loophole even though the courts have rejected it. The lawsuit has also added key Rightscorp clients, Warner Bros. and BMG, as defendants as well.

Last week, Rightscorp responded [pdf] by arguing that the case should be dismissed under California's anti-SLAPP law. Now, we've been huge supporters of California's anti-SLAPP law and believe that we need a similar federal anti-SLAPP law. Anti-SLAPP laws allow defendants to quickly get lawsuits dismissed when it's clear those lawsuits are nothing more than attempts to silence their public speech (SLAPP standing for "Strategic Lawsuit Against Public Participation.") However, I'm hard pressed to see how robocalling someone demanding they pay up or get sued is "public participation" in any way. Here's how Rightscorp makes its argument however:
The abuse of process claim should be dismissed under California’s anti-SLAPP statute, as Plaintiff’s attempt to recover damages from Defendants and enjoin them from making further subpoena applications impermissibly impairs Defendants’ free speech and petitioning rights. The imposition of the remedies Plaintiff seeks is prohibited as it would unduly burden Defendants’ efforts to invoke legal process to identify copyright violators who illegally distribute Rightscorp’s clients’ protected works. As the California courts have consistently held, claims attacking a defendant’s efforts to invoke the legal system are subject to being automatically stricken under anti-SLAPP.
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. There are plenty of situations where courts have ruled that such subpoenas are inappropriate -- including (as mentioned above) in nearly identical cases. It's not a free speech issue at all. But having gone down this path, Warner Bros. (Rightscorp's main client) has decided to chime in as well [pdf].
Specifically, Plaintiff’s claim impermissibly challenges Defendant’s petitioning conduct, which is protected under California’s anti-SLAPP statute.
While I'm not convinced that Pietz's class action will survive (for a variety of reasons), the idea that the lawsuit itself should be barred under California's anti-SLAPP law seems ridiculous. The lawsuit is not seeking to block Rightscorp's First Amendment rights. It's seeking to stop robocalls and illegal subpoenas that are used to allow Rightscorp to shakedown people for settlement money by bombarding them with demands to pay up to avoid being sued.





Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 7 Apr 2015 @ 11:01am

    "It's hard to see how anyone can argue that merely filing a subpoena for information is protected free speech."

    LOL

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      icon
      antidirt (profile), 7 Apr 2015 @ 12:15pm

      Re:

      "It's hard to see how anyone can argue that merely filing a subpoena for information is protected free speech."

      LOL


      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!

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 7 Apr 2015 @ 12:32pm

        Re: Re:

        Sending legal threats is not a 'petition', any more that 'Give me all your money or I'll beat you senseless and take it anyway'.

        reply to this | link to this | view in chronology ]

        • identicon
          Pragmatic, 9 Apr 2015 @ 5:20am

          Re: Re: Re:

          It's extortion, Antidirt. Are you really trying to tell us that extortion rackets are a free speech issue? Really?

          reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 7 Apr 2015 @ 12:48pm

        Re: Re:

        Also, speaking of research, funny how you ignored the links talking about the two other times the 512(h) 'loophole' has been tried, first by the RIAA, then by copyright troll Evan Stone, and both of them were shot down by the courts, with the SC refusing to hear the case when the RIAA lost. Why, it was almost as though the courts didn't equate legal threats with protected speech...

        But hey, clearly because this court hasn't ruled on the matter yet, that means that there's absolutely no precedent for this particular type or legal trick. /s

        reply to this | link to this | view in chronology ]

        • icon
          antidirt (profile), 7 Apr 2015 @ 1:50pm

          Re: Re: Re:

          Also, speaking of research, funny how you ignored the links talking about the two other times the 512(h) 'loophole' has been tried, first by the RIAA, then by copyright troll Evan Stone, and both of them were shot down by the courts, with the SC refusing to hear the case when the RIAA lost. Why, it was almost as though the courts didn't equate legal threats with protected speech...

          But hey, clearly because this court hasn't ruled on the matter yet, that means that there's absolutely no precedent for this particular type or legal trick. /s


          I didn't ignore it. I mentioned that the 512(h) thing the plaintiff is relying on is not the law in the Ninth Circuit. I'm aware that two other circuits have looked at it (8th Cir. and D.C. Cir., if memory serves). However, I think you're focusing on the wrong thing by looking at "legal threats." The issue with this motion is whether Rightscorp's use of the 512(h) subpoena process is abuse of process. Given that the Ninth Circuit has never ruled on 512(h), I think it's not. Rightscorp can in good faith use the 512(h) subpoena process, and such is protected by the petition and free speech rights guaranteed by the First Amendment. The "legal threats," as you put it, are not at issue.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 7 Apr 2015 @ 1:59pm

            Re: Re: Re: Re:

            No. Subpoenas require lawsuits.

            reply to this | link to this | view in chronology ]

            • identicon
              jackn, 7 Apr 2015 @ 2:02pm

              Re: Re: Re: Re: Re:

              maybe, but more simply, subpoenas are not free speech. Free speech does not require a judges approval to be spoken. Free speech is free, meaning you don't have to get permission to speak.

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 9 Apr 2015 @ 11:00am

                Re: Re: Re: Re: Re: Re:

                "Free speech is free, meaning you don't have to get permission to speak"

                Which means most advertising is not free speech.

                reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 7 Apr 2015 @ 2:12pm

            Re: Re: Re: Re:

            The issue with this motion is whether Rightscorp's use of the 512(h) subpoena process is abuse of process. Given that the Ninth Circuit has never ruled on 512(h), I think it's not.

            That's not really sound logic.

            reply to this | link to this | view in chronology ]

            • icon
              antidirt (profile), 7 Apr 2015 @ 2:24pm

              Re: Re: Re: Re: Re:

              The issue with this motion is whether Rightscorp's use of the 512(h) subpoena process is abuse of process. Given that the Ninth Circuit has never ruled on 512(h), I think it's not.

              That's not really sound logic.


              512(h) says that a copyright owner or agent can ask the clerk for a subpoena directed to a service provider to identify an alleged infringer. That's what Rightscorp did. 512(h) has been interpreted in two other circuits to not apply to ISPs that act as conduits, but the Ninth Circuit has never interpreted it so. Why would Rightscorp's actions be anything but in good faith? 512(h) is capable of more than one reasonable interpretation. What's your sound logic?

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 7 Apr 2015 @ 3:22pm

                Re: Re: Re: Re: Re: Re:

                Why would Rightscorp's actions be anything but in good faith?

                Perhaps because of Rightscorp's long history of shaking down people not in good faith? Did you even consider that?

                reply to this | link to this | view in chronology ]

              • icon
                That One Guy (profile), 7 Apr 2015 @ 3:33pm

                Re: Re: Re: Re: Re: Re:

                Their 'good faith' belief that what they are doing is acceptable would be on shaky ground at best.

                When what you are doing, and/or the argument that you are making, has been shot down both of the other times that it has come to court(three times if you count the SC refusing to listen to it), you'd have to be pretty blind to not at least consider that you might not be on as strong a legal footing as you think.

                reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 8 Apr 2015 @ 5:30pm

          Re: Re: Re:

          Anyone else surprised that antidirt's an Evan Stone fanboy, too?

          reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 7 Apr 2015 @ 12:55pm

        Re: Re:

        Hey look, a talking anus!

        reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      icon
      antidirt (profile), 7 Apr 2015 @ 12:24pm

      Re:

      Three seconds of research:
      The anti-SLAPP statute protects any act in furtherance of a person's right of petition or free speech, see Cal. Civ. P.Code § 425.16, including, without limitation, the filing of a complaint, the assertion of allegations therein, the service of subpoenas, and any factual investigation related to the issues in dispute.
      Tuck Beckstoffer Wines LLC v. Ultimate Distributors, Inc., 682 F. Supp. 2d 1003, 1015 (N.D. Cal. 2010).

      Law is hard, especially when you don't do research.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Apr 2015 @ 12:31pm

        Re: Re:

        Issuance of a subpoena is a legal process, with legal safeguards. A court is perfectly entitled to say no when someone requests a subpoena, if the request does not meet legal standards. Therefore free speech rules do not apply to the issuance of a formal subpoena.

        reply to this | link to this | view in chronology ]

        • icon
          antidirt (profile), 7 Apr 2015 @ 2:28pm

          Re: Re: Re:

          Yes, the clerk can refuse to issue the subpoena if the person requesting it doesn't meet the standard. That's a separate issue than whether the First Amendment protects one's free speech and petition rights.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 7 Apr 2015 @ 3:15pm

            Re: Re: Re: Re:

            Subpoenas can also be challenged via the courts, as is being done here, so there is still no free speech issue, or petition rights to be examined.

            reply to this | link to this | view in chronology ]

            • icon
              antidirt (profile), 7 Apr 2015 @ 3:39pm

              Re: Re: Re: Re: Re:

              Subpoenas can also be challenged via the courts, as is being done here, so there is still no free speech issue, or petition rights to be examined.

              You're missing the point. Yes, courts can look at subpoenas. An ISP that receives one of these subpoenas can file a motion to quash, and the court can grant the motion. That's got nothing to do with whether Rightscorp, as an agent of the copyright owner, is protected by the First Amendment when it requests a 512(h) subpoena from the clerk (it is, by the way).

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 8 Apr 2015 @ 1:09am

                Re: Re: Re: Re: Re: Re:

                A court can also restrict someones ability to initiate legal actions, especially when it does so to protect others from abuses of the court system.

                reply to this | link to this | view in chronology ]

                • icon
                  antidirt (profile), 8 Apr 2015 @ 6:08am

                  Re: Re: Re: Re: Re: Re: Re:

                  A court can also restrict someones ability to initiate legal actions, especially when it does so to protect others from abuses of the court system.

                  Well, you run into prior restraint issues. A court can sanction someone for bringing a case in bad faith, but that's punishment after the wrong has been committed. That's a different matter than enjoining someone from bringing a case in the first place. That would be prior restraint. You'd think Mike would be really worried about the implication here, but I guess since he dislikes the defendant, his concerns disappeared.

                  I've only seen such prior restraint one time. The context was an inmate who kept filing petition after petition, making completely frivolous claims. The Chief Judge of the District Court wanted to stop the abuse, but he was also concerned about violating the inmate's First Amendment right to petition the court over his alleged grievances. The solution was that the clerk was directed to bring any future petitions from this inmate to the Chief Judge, who would then decide whether it had any merit. If it did, the petition would be permitted to continue.

                  I think the mistake Mike has made is conflating the distinction between the First Amendment right to petition the court and the court's power to deny the petition. The thinking seems to be that there's no right to petition if the petition can be denied. That's not how it works.

                  reply to this | link to this | view in chronology ]

                  • icon
                    That One Guy (profile), 8 Apr 2015 @ 1:19pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Thing is though, the subpoenas aren't 'petitions' to the court, they're 'petitions' to ISP's demanding personal info about the ISP's customers. Moreover, those 'petitions' carry legal weight.

                    That last bit is what I think makes barring them from doing so, or at least barring them from doing so without court approval, different than standard prior restraint. If the letters they sent to the ISP's were able to be completely ignored, without any detrimental effects on the ISP's, I could see a free speech right there, as their letters would be little more than the ones a non-lawyer can send out.

                    This is however, not the case.

                    The subpoenas they are sending out are legally backed, and carry the force of the law behind them, so they cannot just be ignored offhand. If the law is the one providing the legal weight behind something, I don't really see a free speech issue if the law, in the form of the court, decides to withdraw the legal backing, or in this case bar them from using it as they are.

                    reply to this | link to this | view in chronology ]

      • identicon
        Ven, 7 Apr 2015 @ 1:32pm

        Re: Re:


        The anti-SLAPP statute protects any act in furtherance of a person's right of petition or free speech, see Cal. Civ. P.Code § 425.16, including, without limitation, the filing of a complaint, the assertion of allegations therein, the service of subpoenas, and any factual investigation related to the issues in dispute.

        Tuck Beckstoffer Wines LLC v. Ultimate Distributors, Inc., 682 F. Supp. 2d 1003, 1015 (N.D. Cal. 2010).


        I'm sure there was something more to this ruling than just the quoted text. Otherwise this is dangerously over broad. What about breaking into someone's home to install bugs or take documents? That could be used "... in furtherance of ... any factual investigation related to the issues in dispute."

        I have to think some where there is a reasonable limit like requiring the act itself not be a crime. Or maybe in California you can do almost anything as long as you can tie the action to a lawsuit.

        reply to this | link to this | view in chronology ]

      • identicon
        jackn, 7 Apr 2015 @ 1:55pm

        Re: Re:

        "Three seconds of research:"

        You are disqualified, actually, not sure if you know what research is. Did you do any analysis too?

        reply to this | link to this | view in chronology ]

  • icon
    Roger Strong (profile), 7 Apr 2015 @ 11:11am

    "Corporations are con artists too, my friend."

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 7 Apr 2015 @ 11:32am

    Rightscorp new way to use anti SLAPP laws!

    I swear, Rightscorp should patent this.

    Imagine this argument:

    Judge, my crimes and illegal activity are an expression of my free speech and therefore protected under the 1st Amendment. Therefore, anyone suing me, including prosecutors, are violating my civil rights and their suit is a SLAPP lawsuit intended to silence my free speech.

    The court should dismiss their lawsuit (or prosecution) so that I may continue my crimes and illegal activities unimpeded.


    Bravo Rightscorp! That's more original than Prenda or Righthaven.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Apr 2015 @ 12:06pm

      Re: Rightscorp new way to use anti SLAPP laws!

      More importantly, it would make a mockery of our entire justice system.

      Any prosecutor could argue that information obtained via an illegal search could not be deemed inadmissible because that would be a restriction on their speech.

      Similarly any defendant in any kind of suit could admit any kind of evidence they wanted because of the first amendment.

      IIRC some anti-SLAPP laws allow for damages to be collected. So I'm thinking of a new type of trolling where you get a court to deny some petition and then hit them up for damages under anti-SLAPP. This would be a boon for vexatious litigants everywhere.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Apr 2015 @ 12:25pm

    "It's hard to see how anyone can argue that merely filing a subpoena for information is protected free speech."

    Actually, I find it quite easy to see that filing a subpoena for information is protected speech.

    ... just not "free speech" as in First Amendment.

    Protected speech as in "part of a legal action". The unfortunate part for Righthaven is that they forgot the lawsuit that would protect the subpoenas.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 7 Apr 2015 @ 12:37pm

    Fun logic

    By their logic, I could break into people's houses(trespassing instead of ignoring the law against robocalling), leave threatening letters('Pay up now or I'll drag you to court, cost you a ton in legal fees, and then run like the coward I am when it starts looking like the judge might actually investigate the charges'), and if anyone tried to stop me I could just scream 'First Amendment!' and get away with it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Apr 2015 @ 1:27pm

    Oi, corporation, your not a bloody individual

    reply to this | link to this | view in chronology ]

  • identicon
    Kronomex, 7 Apr 2015 @ 3:15pm

    I nearly fell out of my chair laughing at how desperate Blightscorp must be to use the 1st Amendment as to why they shouldn't be sued. I wonder if it has something to do with falling revenue and much bad publicity.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 7 Apr 2015 @ 5:20pm

    Must inflate stock price.
    Must try to protect clients from lawsuits.
    Must delay until the next round of settlements.
    Must have bank account empty when court comes.

    I wonder how their own words will work against them in this case, as they admitted they knew the courts had ruled against this type of subpoena being used this way and decided to press ahead anyways. It does appear that they feel the law does not apply to them, unless it lets them demand cash from others on sketchy "evidence".

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 7 Apr 2015 @ 5:40pm

      Re:

      Funny how that last one always works. The troll in question will brag about how they're raking in hundreds of thousands, or even millions, on a regular basis, but when it comes time for them to pay the bill, suddenly it's nothing but crickets and empty pockets, and all that money just 'mysteriously' disappears.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Apr 2015 @ 5:39pm

    Anyone else surprised to see antidirt standing up for the heroes of copyright and their right to run grandmothers into the ground for porn they didn't download?

    reply to this | link to this | view in chronology ]

    • icon
      antidirt (profile), 7 Apr 2015 @ 6:18pm

      Re:

      Anyone else surprised to see antidirt standing up for the heroes of copyright and their right to run grandmothers into the ground for porn they didn't download?

      Ha! I guess the freeloaders that get billed need a new business model. j/k

      I don't care about them either way. I just think it's not abuse of process to request a subpoena from the clerk. The clerk didn't think the process was being abused either. It issued the subpoenas. This issue will probably make it to the Ninth Circuit one day, and I wouldn't be surprised if it follows the other two circuits and holds that 512(h) doesn't apply to ISPs that don't host the material. That's a plausible read of the statute.

      It's not the only one, though. The district court in the Verizon case read it differently:
      Based on the language and structure of the statute, as confirmed by the purpose and history of the legislation, the Court concludes that the subpoena power in 17 U.S.C. § 512(h) applies to all Internet service providers within the scope of the DMCA, not just to those service providers storing information on a system or network at the direction of a user.
      In re Verizon Internet Servs., Inc., 240 F. Supp. 2d 24, 26 (D.D.C.).

      That decision was reversed by the appellate court, but I think it demonstrates that there exists a good faith interpretation of the statute consistent with Rightscorp's position. Since the Ninth Circuit hasn't said anything either way, there's no bad faith about it. Without the bad faith, there is no abuse of process, and the 512(h) activity is protected by the First Amendment. I'm happy to explain my position.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 7 Apr 2015 @ 9:58pm

        Re: Re:

        While they might be able to argue(successfully or not) that the statue allows for what they've done, even mentioning that case would seem to be shooting themselves in the foot on a massive scale, given it was overturned by a higher court.

        As such I imagine they'll proceed as though the matter has never come up before, not bringing up the previous cases regarding the matter at all, though I imagine the other side, and potentially the judge, will be looking at similar cases when it comes to making arguments.

        reply to this | link to this | view in chronology ]

        • icon
          antidirt (profile), 8 Apr 2015 @ 6:21am

          Re: Re: Re:

          While they might be able to argue(successfully or not) that the statue allows for what they've done, even mentioning that case would seem to be shooting themselves in the foot on a massive scale, given it was overturned by a higher court.

          As such I imagine they'll proceed as though the matter has never come up before, not bringing up the previous cases regarding the matter at all, though I imagine the other side, and potentially the judge, will be looking at similar cases when it comes to making arguments.


          Look on page 11 of the third document embedded in the article. Rightscorp acknowledges both circuit court decisions interpreting 512(h) to the contrary. It quotes from the dissent of one of those cases, noting that the dissent's view comports with its own. It also cites a district court decision where it made the same argument concerning 512(h) and lost. The other side moved for sanctions, but the motion was denied as Rightscorp's argument was not frivolous or in bad faith. That's the problem here for the plaintiffs. Rightscorp is not using the 512(h) in bad faith or for a purpose it was not intended for. It's not abuse of process.

          reply to this | link to this | view in chronology ]

          • icon
            That One Guy (profile), 8 Apr 2015 @ 1:42pm

            Re: Re: Re: Re:

            That... doesn't seem like the smartest of moves, pointing out to the court that every other time the matter has come up it's been decided against the interpretation they are using.

            "Sure every other court has ruled against our interpretation, but here's your chance to buck the trend, and rule for it!"

            That's the problem here for the plaintiffs. Rightscorp is not using the 512(h) in bad faith or for a purpose it was not intended for. It's not abuse of process.

            Several other courts seem to disagree, and whats more, Rightscorp knows it, so that certainly seems to put their position on rather shaky ground.

            reply to this | link to this | view in chronology ]

      • identicon
        jackn, 8 Apr 2015 @ 2:21pm

        Re: Re:

        Ha! I guess the freeloaders that get billed need a new business model. j/k

        Finally, a statement we can agree on. but wait, who are the freeloaders? the trolls, 'cause that's what Im thinking

        reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Shop Now: Copying Is Not Theft
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.