Facing allegations of abusive enforcement of its copyrights, Warner Bros. contends that its tactics are protected by the First Amendment to the US Constitution.

In November, Warner and the copyright enforcement group Rightscorp Inc., among others, were named as defendants in a class action lawsuit. The defendants were accused of violating consumer protection laws and of issuing baseless subpoenas to downloaders of copyrighted content under the Digital Millennium Copyright Act (DMCA).

Rightscorp monitors peer-to-peer file sharing networks on behalf of intellectual property owners, including Warner and send “notifications” to alleged infringers.

These “notifications” ask alleged infringers to pay $20 per infringement.  Rightscorp claims to represent more than 1.5 million works.

According to the complaint, Rightscorp uses a “robocaller” to call alleged infringers on their cellphones.

Among other allegations, the plaintiffs assert that Rightscorp and the other defendants are misusing the Section 512(h) subpoena under the DMCA. This provision allows a copyright owner to obtain an order for an Internet Service Provider (ISP) to disclose the real identity of a person using a specific IP address. These orders may be obtained from court clerks, without being reviewed by a judge.

Plaintiffs claim that the use of these subpoenas is an abuse of process.

A SLAPP on the Case?

Recently, Rightscorp sought to dismiss the plaintiffs’ claim for abuse of process on the grounds that defendants’ “petitioning conduct” is protected under California’s anti-SLAPP statute.

The anti-SLAPP statute, Anti-Strategic Lawsuit Against Public Participation, California Code of Civil Procedure Section 425.16, was designed, according to cases cited by defendants,

to prevent and deter lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. Because these meritless lawsuits seek to deplete the defendant’s energy and drain his or her resources, the Legislature sought to prevent SLAPPs by ending them early and without great cost to the SLAPP target.

According to the defendants,

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.

The case is Reif et al. v. Rightscorp Inc. et al., case number 2:14-cv-09032, and it is pending in the U.S. District Court for the Central District of California.

Pirates v. Copyright Owners

This case illustrates the difficulties copyright owners face when trying to enforce their rights against alleged content pirates.

While no one denies that copyright piracy is widespread, according to the Wall Street Journal there is no consensus on the scope of injury to legitimate copyright owners. When copyright owners attempt to enforce their rights, they are sometimes called “copyright trolls.”

What is clear is that crafting a response to piracy requires creative thinking, both in the legal realm and in the business realm.