On Thursday, Governor Rick Scott of Florida signed 44 bills into law, but two of them are particularly interesting to us. The first we wrote about back in March, SB 604, is a very problematic bill that undermines some basic free speech rights. It's the latest in a new push by Hollywood to undermine anonymity online as a backdoor attack on copyright infringement. Basically, it says that if you're distributing any sort of audiovisual work, you need to reveal who you are.
The implications here are massive. There are lots of cases where someone may wish to post certain audiovisual works without having to post their full name, address, phone number and email address -- as the law now requires. And the First Amendment has long protected the right to be anonymous. And yet, the Florida legislature and Governor Scott signed it without much serious concern about how it's stripping away the First Amendment anonymity rights of their citizens.
Oddly, however, in that very same batch of signed bills... is another bill that protects free speech rights: SB 1312, which expands Florida's (very, very weak) anti-SLAPP law. Like too many states, Florida's anti-SLAPP law originally only protected people in cases where they were sued over speech concerning government actions. The new bill expands that to "public issues" which is similar to many other anti-SLAPP bills. Considering the number of crazy defamation threats and lawsuits that seem to come out of Florida, this bill could be very, very useful in protecting free speech.
Getting the anti-SLAPP bill is really important, but losing anonymity seems really dangerous. These aren't just the sort of things that "balance out" either. Either you support the First Amendment or you don't. I'm glad that Florida has a better anti-SLAPP bill, but Governor Scott shouldn't have taken away basic First Amendment protections with the same stroke of his pen in signing the "true origin" bill at the same time.
from the can-beings-of-light-cure-a-streisand? dept
A couple weeks ago, we wrote about faith healer Adam Miller's monumentally stupid and ridiculous SLAPP lawsuit against Stephanie Guttormson because she posted a video that was critical of a video Miller put together promoting his faith healing nonsense. We dissected how weak and laughable the lawsuit was -- and it's possible that Miller and his lawyer have now realized this, as they've dismissed the lawsuit, but without prejudice, meaning he could potentially file it again in the future. Given that (and the fact that Guttormson has raised a bunch of money in a crowdfunding campaign), I wonder if she'll now file for a declaratory judgment of non-infringement... Update: Guttormson notes that while she could go after him, she's going to let the matter drop.
Either way, Miller said he filed the lawsuit because he felt it was unfair that people were seeing this video that Guttormson put together:
When he filed the original lawsuit, it noted that the video had been viewed approximately 1,500 times since it first was posted back in December of last year. So, 1,500 views in a bit over four months. In the two weeks since the lawsuit was filed, it's now up to about 50,000 views. Nice work, Adam.
Separately, if you do a Google search on "adam miller healer" (as he likes to be known), it's full of stories about how he's suing Guttmorson and mocking his faith healing nonsense. One of these days people are going to understand the nature of the Streisand Effect, but apparently that day is not today.
Pity the poor lawyer who has to argue on behalf of his employer's desire to curtail the public's free speech rights. Not only are you indirectly arguing on behalf of those who've abused the legal system to stifle speech, but your defensive arsenal is going to be limited to assertions that are ineffectual, blunted, stupid or any combination of the above.
Free speech in the US is (mostly) an absolute. There are very few areas that aren't covered by this Constitutional protection. Defamation is one of those areas. But defamation isn't what so many people apparently believe it is -- i.e., unpleasant things being said about/to them. Many nasty things can be said without rising to the level of defamation, but that's rarely considered before lawsuits get filed. Anti-SLAPP laws -- instituted by far too few states -- ensure that aggrieved parties double-check their allegations before filing a defamation suit.
Nevada has a perfectly fine anti-SLAPP law, but aggrieved parties who'd rather exercise their perceived "right" to use bogus lawsuits as speech suppression devices are looking to carve out everything about the statute that makes it a deterrent. The person chosen to sell this dismantling of legal protections is Mitchell Langberg, outside counsel for Wynn Resorts (and self-proclaimed "expert" on anti-SLAPP laws). Steve Wynn, the company's owner, recently lost a defamation lawsuit in California, thanks to its anti-SLAPP law. Now, he wants the law changed on his home turf. Langberg appeared (by phone) on Nevada Public Radio to argue on behalf of his employer -- as well as on behalf of the Roca Labs and Thomas Cooleys of the nation. When you're sticking up for plaintiffs like these, what do you say? What can you say?
According to Langberg, the existing law is too broad and offers too much protection to the public. He wants to remove the "clear and convincing evidence" stipulation and replace it with a much lower bar of "some evidence." (He refers to a "70-75% convincing" evidentiary standard, which I don't even know what that means…) He also claims the statute is "intimidating" to businesses, especially the small ones, who feel they must just deal with criticism -- even false criticism -- because they have no way of proving the statements made are false, at least not to the extent that the law demands.
The unspoken summation of these points is this: if potential plaintiffs are finding it hard to prove defamation, chances are it doesn't rise to the level of defamation.
But it gets worse from there. By four minutes into his call, Langberg has referred to Yelp as being a "mechanism" that allows for "online terrorism and character assassination." A few minutes after that and he's reduced to regurgitating anti-speech cliches.
First, there's the qualified support of free speech, which always starts with the person arguing for limiting speech giving his or her First Amendment version of the "some of my best friends are black" argument. ("I'm not racist…")
I support the First Amendment right to free speech. I'm a strong supporter of it. I have represented newspapers in my career against defamation complaints.
I'm also a strong supporter of people's rights to protect their reputation, which is also a First Amendment right -- the right to petition the government when you've been harmed -- by filing lawsuits.
So far, it's mostly acceptable, although it seems clear Langberg is far more concerned with upholding the rights of the latter group, which apparently values "petitioning" over exercising their right to counter critical speech with speech of their own.
Then the love for the First Amendment starts slipping.
There is no First Amendment right to say false things.
Sometimes true, but context matters (satire, etc.). And statements of opinion are often misconstrued by litigants as false statements.
And then, Langberg destroys his own reputation as an expert on anything speech-related.
There is no First Amendment right to scream "fire" in a theater.
And, continuing his way to the bottom of the rhetorical reef, chained to the mast of his swiftly-sinking arguments, Langberg then asserts that the right to free speech isn't actually a right.
The First Amendment right is a privilege and a responsibility.
Now that it's simultaneously a right and a privilege, all sorts of crazy things can be asserted.
There are certain limitations. You can't say anything you want, any time you want.
Agreed, but how can anyone not agree with such a robust strawman!
People's reputations are very, very valuable.
So there has to be a balance between people's right to speak freely and their necessary responsibility when they abuse that right.
What? There is a right to speak freely. Those who disagree hold the same right. You can't really "abuse" the right. You either stay within its bounds or you find yourself outside of its protections. Defamation is outside of that boundary. The law Langberg is arguing against does nothing to prevent the pursuit of defamation suits. But Langberg wants a law that allows him and his clients to hold people "responsible" for protected speech. That's why listeners are being subjected to this list of nonexistent exceptions to the First Amendment. Langberg needs the public to believe hurtful, mean statements of opinion are actually unprotected by the Constitution.
When they make false statements of fact, that's an abuse of that right.
No. It isn't. It's something not covered by the First Amendment. It isn't an "abuse" of that right. Someone who steals a gun from someone's house isn't "abusing" his Second Amendment right to keep and bear arms. He's a thief, not someone who acted irresponsibly within the confines of that right. Langberg is trying to paint protected and unprotected speech the same shade of gray.
On top of that, Langberg keeps steering the conversation away from who he's actually arguing for -- Wynn Resorts, a large corporation with a litigious background. He claims it's small businesses that will be hurt the most by the loss of the option to file bogus lawsuits. He continually asserts that the gutted, stripped law will also effectively deter frivolous lawsuits.
But his arguments against the existing anti-SLAPP lawsuit are contradictory. He says the stringent evidentiary standards will result in possibly legitimate cases being tossed out on "day one," with the plaintiffs being saddled with the defendant's legal fees -- something that could put these supposed "small businesses" out of business. Really? If suits can be tossed "before discovery, before a jury trial," as Langberg describes it, then there certainly can't be much in legal fees amassed by the point the court tosses the case.
Beyond that, Langberg overstates the law's current demands in terms of the level of proof needed to follow through on a defamation suit. Langberg portrays it as an almost-insurmountable obstacle of "clear and convincing evidence." As Marc Randazza points out later, the current statute demands no such thing.
Our current statute just requires the plaintiff to prove a "probability of prevailing." Not "most likely." A "probability."
If you can't get over that and you're a licensed attorney, why are you putting your signature on that complaint?
Good question. Langberg would apparently like to be applying his signature to more complaints, but state law sets the bar too high. Langberg isn't quite the First Amendment fan he portrays himself as. He's a fan of his version of the First Amendment. Unfortunately for him, the state's current anti-SLAPP law won't allow him to fully exercise his interpretation of other people's rights.
For many years now, we've talked about the importance of a federal anti-SLAPP law, that would protect the First Amendment. As we've explained, it is not uncommon for people to abuse our judicial system to file a lawsuit against someone for saying things that they don't like, knowing that no matter how frivolous, the threat (and cost) of the lawsuit is often enough to get them to shut up. That's why such "Strategic Lawsuits Against Public Participation" (SLAPP) are so popular. As it stands, anti-SLAPP laws are a complete hodgepodge of state laws. Some states have no anti-SLAPP laws. Others have weak ones. And a few have strong ones (though even some of those are under attack).
The SPEAK FREE Act of 2015, will protect citizens from frivolous lawsuits that target their First Amendment Rights. Based on the Texas Citizens Participation Act, this bill will prevent bad actors from using a lawsuit to silence public opinion simply because they don’t agree with it. These lawsuits, known as SLAPPs (Strategic Lawsuits Against Public Participation), pose a threat not only to free speech, but to the modern information economy. Protecting our right to free speech drives economic opportunity by paving the way to new forums for expression, like YouTube, or by facilitating the rise and fall of products or services through competition and honest buyer feedback.
The SPEAK FREE Act will provide a federal backstop to state Anti-SLAPP laws by creating a process similar to that in Texas and California, where expensive court proceedings are delayed and claims can be dismissed if the defendant can show that a SLAPP suit cannot succeed on the merits.
The full text of the bill can be seen at that link (or below), and it does appear to be similar to the ones in Texas and California, making it much easier to dismiss bogus SLAPP suits, to halt discovery and to get awarded attorneys fees for such SLAPP suits. Also, unlike some state laws, it is not limited to just speech about the government, which is important. While there may be some specifics within the bill that are worth tweaking, overall, it seems clearly modeled on the very successful, and well-thought out bills already in place in Texas and California. It would be a huge boost to freedom of expression to have this become law.
Seeing as how some rather wealthy folks have been trying to kill off anti-SLAPP laws in states already, expect to see a lot of FUD come out about this attempt to put in place an anti-SLAPP law that protects free expression across the entire country.
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.
from the can-you-heal-not-understanding-the-law? dept
Oh boy. Today in Streisanding, we've got a lawsuit filed by Adam Miller, a faith healer, against Stephanie Guttormson, supposedly over claims of copyright infringement and defamation, though neither claim holds up under much scrutiny. Instead, this looks like a typical SLAPP suit, in which Miller is upset about a video that mocks him and his faith healing and decides to sue over it. Enter Stresiand Effect. The video is currently up, and the view count is rapidly escalating. At the time the lawsuit was filed (according to the lawsuit) it had about 1,500 views. Now it's much more:
There's nothing too surprising in the video, but it basically uses one of Miller's own promotional videos and intersperses some commentary and criticism. The lawsuit... is... well... a joke. First, he claims copyright infringement, though this is pretty obviously fair use. It's being used for criticism and commentary, and in order to make that work, it needs to show clips of the video. Miller's lawyer tries, weakly, to present a few arguments to try to get around fair use, including arguing that it's commercial use. Of course, as we keep repeating, commercial use does not mean that you can't have fair use. Tons of fair use involves commercial use. And, even given that, it's ridiculous to argue that this is "commercial use." The best the lawsuit can do is claim that the inclusion at the end of the video of a couple of "advertisements" makes it commercial. That, alone, probably isn't even enough to claim this is "commercial use," (which is generally more about selling the actual work or directly profiting). Plus, it's not even accurate. The "advertisements" aren't really advertisements at all, but rather a friendly acknowledgement of who sent her the video, with a link to that guy's own website and audio bookstore, with a mention that Guttormson appears on that guy's podcast every so often.
The lawsuit also claims too much of the original video was used, but there's little evidence to support that. Guttormson comments on basically every clip in the video, so it's hard to see how she's using "more of the original work than was necessary" as the lawsuit claims.
The lawsuit also alleges, as part of the copyright claim, that "Guttormson is liable for the actual harm caused to Mr. Miller as a result of Guttormson’s infringement and statutory damages." That's an interesting claim, but completely bullshit in the copyright context. The "actual harm" has to be over the copyright. Unless there was "actual harm" in Miller no longer being able to license/sell that video to a third party because they felt they could see it all for free through Guttormson's video (a crazy claim), then there's no actual harm. If the commentary in Guttormson's video, which mocks Miller's wacky faith healing nonsense, created "actual harm," well, that's not a copyright issue and is unrelated to any copyright claim.
The lawsuit also makes some claims about how the video itself was never actually released, but rather was password protected in Miller's wife's account. So the lawsuit alleges that Guttormson must have "hacked" into Eve Miller's account. In the video itself, however, as mentioned above, Guttormson notes that it was actually David Smalley who sent her the video. And while it's not entirely clear, from the comment threads under the video, it certainly sounds like Miller's video was most likely publicly available somewhere online. The evidence of "hacking" here seems really weak. And if there was hacking, the evidence that it was Guttormson is non-existent.
As for the defamation claims... there are only two specific things called out in the lawsuit. The first is this:
As just one example, Guttormson explains what happens at an appointment with Mr. Miller, “You will be fed faith-based bullshit.” This statement is false and defamatory; Mr. Miller’s work does not require a client to hold any faith, and he has worked with non-believers and atheists.
Um. Okay, it appears that Miller's lawyer is misrepresenting what "faith-based" means in this context. Guttormson isn't saying that those seeing Miller are expected to "have faith in a certain religion." She's saying that the treatment by Miller is not evidence based but is based on someone's blind "faith" in Miller being able to actually do something. And, besides, Miller's own words show that he's pitching a bunch of faith-based quackery. In the video clip, he himself explains the process, noting talking first about how he talks to people who come to them about things that happened in their childhood, like "traumas" that might explain their illnesses (really) and then says:
And then after we get through this, we put them on the table, and great holy spirit comes and breaks up dark cellular structure that creates any illness. Because I believe that illnesses are of a dark path.
That's like the definition of "faith-based" right there.
The other "defamation" claim is about the title of the video, which refers to Miller as a "con man." For the most part, courts don't consider phrases like that defamatory though (there are some exceptions, but it very much depends on context and if they're alleging a very specific thing, rather than a general insult). The link there is from Perle & Williams on Publishing Law and notes:
As Dean Prosser observed, "[A] certain amount of vulgar name-calling is tolerated on the theory that it will necessarily be understood to amount to nothing more." Thus, "communism" is too amorphous a characterization to be actionable, as is the term "grifter." The term "crook" has been held by one court to be a word of general disparagement rather than an allegation of specific criminal conduct, and thus was not slander; a restaurant critic's remark that a restaurateur was a "pig" and a television news editorial that referred to a chiropractor as a "quack" and a "cancer con artist" were held to be expressions of opinion; the words "those bastards" were held "mere epithets... as terms of abuse and opprobrium" and as such were not actionable for defamation; referring to a judge as "incompetent," "arrogant," "biased," and "one of the 10 worst judges in New York" was not held to be defamatory; calling a stockholder a "silly, stupid, senile bum" was not held to be slanderous; referring to Carl Sagan as a "butt-head astronomer" was held not libelous; and referring to a masonry contractor as a "shithead" was held not actionable....
In short, the likelihood that calling Miller a "con artist" is "defamation," let alone "defamation per se" as the lawsuit alleges, is... quite unlikely.
Even more to the point, this was a video that almost no one had seen. And now, because of this lawsuit, not only are tons more people checking it out, even more people will start investigating Adam Miller and the claims he makes about his "healing" services. Miller's website has gone down, but a quick look through the internet archive shows that it's chock-full of quackery (note to Miller's lawyer: that's not defamatory, so buzz off):
What this healing work is...
The Great and Holy Beings, such as Mother Mary, Jesus, Buddha, Quan Yin, Saint Germain, Archangel Michael and many others come into a person's body and transmute with light every single cell and raise the vibratory rate. In other words, diseases or injuries in the body have a very low, darkened vibration and when a Holy Being works with any person it changes the cellular structure permanently and the issue that is being worked on will never come back. This work is permanent. It is important to understand that Adam Miller is not a conduit, or psychic or related to any other work on the planet. This work is a result of Adam's death experience. Adam Miller would never claim to do this work himself. It is done by Holy Beings only.
So, uh, yeah. And he's the one claiming that "faith-based bullshit" is defamatory? Yikes.
Meanwhile, before filing the lawsuit, it appears that Miller posted another video announcing his response to the video above. In it he notes that a lawsuit is being prepared. But he also has a bunch of his "happy clients" give testimonials or complain about Guttormson, claiming that what she said was, like, really mean and "unprofessional." If Miller had merely posted his response including such testimonials, that would be perfectly fine. You deal with speech you dislike with more speech. But suing someone with bogus claims of defamation and copyright infringement? When you're spewing quackery? Not only is that going to flop in court, it's just going to lead a lot of people to examine what you're selling yourself...
We've discussed for quite some time the importance of anti-SLAPP laws, and how it's ridiculous that we don't have a federal anti-SLAPP law. Once again, anti-SLAPP laws are used to toss out bogus lawsuits that were clearly filed for the sake of silencing someone's speech (SLAPP stands for "Strategic Lawsuit Against Public Participation"). Right now only some states have them, and there are many variations in the various state laws, with some much better than others. Unfortunately, a new ruling in the DC Circuit appeals court may makestate anti-SLAPP laws much less effective. That's because it says, more or less, that state anti-SLAPP laws only apply to cases in state/local courts, and not those that are in federal court (such as any case between two parties in different states).
Under the Federal Rules, a plaintiff is generally entitled to trial if he or she meets the Rules 12 and 56 standards to overcome a motion to dismiss or for summary judgment. But the D.C. Anti-SLAPP Act nullifies that entitlement in certain cases. Under the D.C. Anti-SLAPP Act, the plaintiff is not able to get to trial just by meeting those Rules 12 and 56 standards. The D.C. Anti-SLAPP Act, in other words, conflicts with the Federal Rules by setting up an additional hurdle a plaintiff must jump over to get to trial.
In other words, in the DC Circuit, this finding says that as long as the dispute is between two parties in different jurisdictions, the anti-SLAPP law is basically toothless. Its reasoning is that Federal Rules of Civil Procedure list out the processes under which a court can dismiss a claim before a trial, and it doesn't include the same process as the anti-SLAPP process. And thus, the Federal Rules effectively overrule any local anti-SLAPP law in federal court.
As Paul Levy notes in the link above, this finding goes against findings in the First, Fifth and Ninth Circuits and creates a circuit split that he hopes will be appealed to the Supreme Court (even though the appeals court eventually did dismiss the case on other grounds).
Either way, this really (once again) reinforces the absolute need for a strong federal anti-SLAPP law. Not only would it solve messes like this, but it would protect free speech rights across the country, rather than allowing some states to protect them, while others allow people to be silenced via bogus lawsuits.
Last week, we had a brief post on the disturbing news that Nevada's very good and very useful anti-SLAPP law was about to be destroyed by a new bill that basically gutted all of the important stuff in Nevada's bill. This would be pretty tragic, as anti-SLAPP laws are important in protecting free speech -- especially in protecting the free speech of those who challenge the wealthy and powerful. As you may know, there are a lot of wealthy and powerful people in Nevada, and it may be difficult to figure out which of them stand to benefit the most from killing off a law that prevents them from using hoards of cash to silence critics.
In the comments to our post, someone noted that casino billionaire Sheldon Adelson recently lost a defamation case thanks to Nevada's anti-SLAPP law and was told to pay up the legal fees of the guy he sued. Adelson is also pretty well-known for well-financed efforts for political causes he believes in. So that makes him a rather obvious choice. But over on his blog, Marc Randazza points the finger at a different Las Vegas casino-owning billionaire: Steve Wynn, arguing that Wynn also just lost a defamation lawsuit, thanks to California's anti-SLAPP law. Randazza points to some evidence tying a top Wynn lawyer/lobbyist, to the new effort.
And all I can think is, what is it about Las Vegas billionaire casino developer/owners that makes them so thin-skinned as to sue critics to try to silence their free speech?
We've mentioned many times the importance of anti-SLAPP laws in protecting people who are being sued solely to try to shut them up. It's still a travesty that we don't have a federal anti-SLAPP law but are reliant on various state anti-SLAPP laws. In case you're not familiar with them, SLAPP stands for "Strategic Lawsuit Against Public Participation." Anti-SLAPP laws basically allow people who are sued to quickly get lawsuits dismissed when it's obvious that the entire point of the lawsuit is to silence whoever is being sued, rather than for any legitimate legal purpose. For years, California was seen as having one of the best anti-SLAPP laws, but in recent years both Texas and Nevada upped the ante in anti-SLAPP laws, making them even stronger. Nevada's had a particularly useful feature: it would award "reasonable costs, attorney's fees and monetary relief" for defendants who were wrongfully hit with SLAPP suits. Basically, it provided a real deterrent against SLAPP suits.
However, just two years after unanimously passing that bill, the Nevada Senate has just unanimously repealed that important provision, in the form of SB 444. If you take a look at the bill, you'll see it explicitly repeals the fee shifting section. Apparently, some people didn't like the fact that they might have to pay up for filing bogus lawsuits trying to stifle speech. If that were all it did it, it would be tragic enough, but as Popehat clearly describes, the bill also undermines the rest of the anti-SLAPP law in pretty nefarious ways, making the existing rules toothless.
The bill still needs to go through the state assembly and be signed by the governor, but it's really disappointing to see Nevada move backward on anti-SLAPP laws just as much of the rest of the country is moving forward. Nevada provided a useful anti-SLAPP model, but apparently someone wasn't happy about that.
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.