Rightscorp Claims Its Harassing Phone Calls Safeguarded By Multiple Constitutional Amendments

from the putting-the-'rights'-back-in-'rightscorp' dept

Third-party copyright troll Rightscorp is fighting a couple of lawsuits related to its alleged telephonic harassment of alleged infringers. One wonders what the ROI is on funding robocalling in pursuit of $10-20 "settlements" from suspected infringers. Whatever it is, the ROI is definitely edging further into the red, what with the company now paying lawyers to safeguard its "right" to harass and threaten people who won't pay up (or haven't even performed any infringing activity).

I don't make this assertion lightly. Multiple complaints made to the FCC back up the assertions being made in two class-action lawsuits. Rightscorp has responded to the allegations made in the lawsuit filed earlier this year, claiming the company willfully violated the Telephone Consumer Protection Act (TCPA) in its "collection" efforts. (Note that most collection efforts revolve around unpaid bills -- something consumers previously agreed to pay in one form or another. Rightscorp's "collections" involve no agreement from consumers -- only accusations based on little more than snippets of torrent activity and an IP address. And yet, the company treats accused infringers as though this is unpaid debt, rather than the speculative wallet-rummaging it actually is.)

Rightscorp's response is hilarious -- although certainly not intentionally. First off, it denies pretty much every allegation except for the issuing of subpoenas and emails -- things nearly impossible to deny thanks to the paper trail they create.

Once it gets past that point, it starts issuing its affirmative defenses. According to Rightscorp, several Constitutional amendments enshrine its right to harass alleged infringers over the phone.

While the majority of its eleven defenses are questionable enough, the defenses 3-6 attack the law itself, claiming that TCPA is unconstitutional, namely it violates the First, Fifth, Fourteenth, and Eighth Amendments. Why is it so, Rightscorp doesn’t say.
From the filing:
The Telephone Consumer Protection Act (“the TCPA”), codified at 47 U.S.C. § 227, upon which Plaintiffs’ claims rely, violate the First Amendment of the United States Constitution.

[...]

The TCPA violates the Due Process Clauses of the Fifth and Fourteenth Amendments of the United States Constitution.

[...]

The TCPA violates the Excessive Fines Clause of the Eighth Amendment of the United States Constitution.
It appears Rightscorp would rather have the court examine a law twice held to be constitutional than look into its "collection" activities.

The First Amendment argument isn't exactly novel. Rightscorp and Warner Bros. have previously argued that copyright trolling is free speech. But, in that case, at least it actually made an argument. The affirmative defense offered here is nothing more than literally "the law violates the First Amendment," something no court has held to this point.

Beyond that, the other affirmative Constitutional defenses offered by Rightscorp are probably going to be viewed as "novel" by the court -- something that's rarely a compliment when it's written in a judicial opinion. As of right now, they're not even arguments. They're just assertions. The real fun will begin when Rightscorp starts explaining how violating a consumer protection law is not just protected speech, but is safeguarded by the application of Fifth, Eighth and Fourteenth Amendments.


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  • icon
    Ehud Gavron (profile), 14 Jul 2015 @ 8:41am

    TCPA recently *further* clarified by the FCC

    I'd say that Friday's "Omnibus TCPA Declaratory Ruling" [after the 90 day publication delay] will make Rightscorp's stomach acid level go even higher.

    http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0710/FCC-15-72A1.pdf


    E

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

  • identicon
    Anonymous Coward, 14 Jul 2015 @ 9:47am

    What the hell does Rightscorp think it's doing? Harassment is NOT a constitutional right, nor is it a protected constitutional right. If it seriously thinks it is, then Rightscorp is seriously deluding itself.

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

    • icon
      Roger Strong (profile), 14 Jul 2015 @ 10:10am

      Re:

      I'm sure Rightscorp knows exactly what it's doing. It's a publicly traded company. The point is to seriously delude its investors and already notoriously deluded music, movie and print publisher customers.

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

    • identicon
      Michael, 14 Jul 2015 @ 11:21am

      Re:

      Actually Harassment is NOT an exception to free speech. Harassing speech may be protected under the first amendment, but harassing BEHAVIOR is a totally different animal.

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

    • icon
      Jane Doe (profile), 14 Jul 2015 @ 6:52pm

      Re:

      Nor is stealing you idiot. Do you really think you get to infringe content you don't own and there are no repercussions and that rights holders have no recourse. We might as well call the police "trolls" for simply trying to enforce the law. I love websites like this that allow laypeople to say whatever they want, with no basis in law or fact.

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

      • icon
        Capitalist Lion Tamer (profile), 14 Jul 2015 @ 8:23pm

        Re: Re:

        wat



        I love commenters like this that think police should be allowed to break laws in order to enforce the law, not to mention can't be bothered to read the article for context before dropping off their stupid comments.

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

      • icon
        Seegras (profile), 15 Jul 2015 @ 2:53am

        Re: Re:

        I see, so you're defending vigiliantism? No wonder you are calling the police "trolls"...

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

      • identicon
        Anonymous Coward, 15 Jul 2015 @ 5:30am

        Re: Re:

        Your first premise is incorrect, not everyone receiving said calls have stolen anything. In fact, some of them do not even own a computer. So, I suggest you place that presumptuous attitude where the sun don't shine.

        Your weak attempt at analogy is bad and you should feel bad.


        "I love websites like this that allow laypeople to say whatever they want, with no basis in law or fact."

        ... and your alternative is? I'd guess you approve of censorship when it is not your rights.

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

      • identicon
        Anonymous Coward, 15 Jul 2015 @ 9:20pm

        Re: Re:

        Robert Steele just hates it when due process is enforced.

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

    • identicon
      David, 15 Jul 2015 @ 2:48am

      Re:

      Harassment is NOT a constitutional right

      It's probably one of the inherent rights, the "right to the pursuit of happy nerds".

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

  • identicon
    Anonymous Coward, 14 Jul 2015 @ 9:56am

    If they claim that the constitution protects their right to make such calls even when against existing laws, then they ought to support the claim that copyright law is unconstitutional, as it also stops people saying what they want by using the words and images that surround them.

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

  • identicon
    Baron von Robber, 14 Jul 2015 @ 10:04am

    Rightscorp: Asserting our assertions.

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

  • identicon
    Paul Clark, 14 Jul 2015 @ 10:07am

    I see A New Business Model

    If this is constituional, I think I will set up a company whereby people receiving these types of calls can pay a small fee and I will set up a ROBO caller to call every executive, senior manager, adn legal consul for the company stating that my client did not infringe every 60 minutes.

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

  • icon
    DannyB (profile), 14 Jul 2015 @ 10:14am

    This is why Copyright should go away

    Let's be fair. The infringing activities of a few people can get an entire site, or worse, an entire domain name affecting many innocent sites to disappear.

    It only seems fair that the abuse of copyright by a few bad actors should similarly be able to get Copyright to completely disappear in a flaming puff of greasy black smoke. (a truncated devilish scream is briefly heard as the flames vanish.)

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

  • identicon
    Anonymous Coward, 14 Jul 2015 @ 10:14am

    So I could call them at all hours day and night to collect monies I believe they owe me and it wouldn't be harassment??

    I need to program my speed dial ....

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

    • icon
      DannyB (profile), 14 Jul 2015 @ 10:18am

      Re:

      Only if you believe there is some vague, unproven, remote possibility that they might have infringed your copyright because they share the same global internet that you use.

      Your right to call Rightscorp at all hours of the night must end when either (1) they pay you, or (2) you decide to take them to court in a lawsuit and are prepared to prove your case. As long as you are not prepared to prove anything, and they don't pay, then you can keep calling.

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

  • identicon
    Anonymous Coward, 14 Jul 2015 @ 10:16am

    There is a right to petition for a redress of grievances. If they do it inappropriately they can commit multiple felonies or even treason, depending on how far they go.

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

    • identicon
      Anonymous Coward, 14 Jul 2015 @ 10:19am

      Re:

      I didn't read the complaint. That would be the only valid first amendment right I can think of. We are the humans, us citizens, and us person that make up our government.

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

  • identicon
    David, 14 Jul 2015 @ 11:12am

    No standing?

    Because they weren't the intended recipient? So if I trash your house, I can claim you don't have standing because I intended on trashing someone elses house? Really?

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

  • identicon
    Anonymous Coward, 14 Jul 2015 @ 11:16am

    ...copyright trolling is free speech...

    So is bullying.

    HOWEVER: the 1st amendment won't let you avoid the consequences thereof.

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

  • icon
    That One Guy (profile), 14 Jul 2015 @ 5:01pm

    By the same logic, restraining orders or 'Do Not Call' lists that prevent you from contacting someone are also in violation of the First Amendment.

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

  • icon
    That Anonymous Coward (profile), 14 Jul 2015 @ 5:29pm

    Remember that one of the talking heads from Rightscorp said they don't agree with the law so they will keep doing what they want until SCOTUS rules in their favor. (I paraphrase).

    So we don't have to follow the law because we think the law is stupid, because it denies us our cash by harassing people into paying us for allegations we can't prove and most likely would fold under scrutiny.

    I look forward to their next venture into this area, peddling their patent snakeoil a 3rd (4th) time to an industry who insists that they are sick, but ignoring that they might stop being sick if they stopped hitting their head against the wall while demanding it move out of their way.

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

    • icon
      Stoatwblr (profile), 16 Aug 2015 @ 8:01am

      Re:

      "Remember that one of the talking heads from Rightscorp said they don't agree with the law so they will keep doing what they want until SCOTUS rules in their favor."

      It's more likely the SCOTUS would issue a permanent restraining order preventing Rightscorp, its sucessors or agents continuing the behaviour or inciting others to do so.

      One can hope anyway.

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

  • identicon
    Anonymous Coward, 14 Jul 2015 @ 5:34pm

    I imagine that Rightscorp also believes not answering ones phone or blocking their number is illegal.

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


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