Warner Bros. Wins First Amendment Argument in Piracy Hunt

The studio and copyright agent Rightscorp escape a claim they abused the legal process by exploiting subpoenas.

A federal judge doesn't see anything wrong with how Rightscorp and its clients are using subpoenas to identify film and TV pirates and has dismissed a claim they are abusing the legal process.

Rightscorp clients Warner Bros. and BMG Rights Management are facing a class-action lawsuit from John Blaha and others. The plaintiffs say they were bombarded with phone calls after their Internet service providers gave their information to the defendants. Blaha and others say they've faced demands to settle copyright infringement allegations lest they be pursued further in court.

In response to a claim regarding their aggressive tactics in seeking to collect from those pirating The Shawshank Redemption, Gravity and The Lord of the Rings: The Fellowship of the Ring, Warners invoked California's anti-SLAPP statute, which is meant to deter frivolous litigation that impinges First Amendment rights on matters of public concern.

"Plaintiff is attacking Defendants’ right to petition courts in the Ninth Circuit to issue DMCA subpoenas to identify copyright infringers," argued the defendants.

Blaha and others retorted that the subpoena procedure under the Digital Millennium Copyright Act was not designed to let copyright holders file lawsuits against John Does so as to allow these copyright holders to quickly seek discovery of ISPs.

But according to U.S. District Judge Dale Fischer, that doesn't rise to an abuse of process.

"The first fatal deficiency in Plaintiff’s abuse of process claim is that Plaintiff raises no ulterior motive in Defendants’ use of the subpoenas," writes the judge in a memorandum released Friday. "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."

The plaintiffs attempted to avoid this outcome by arguing that California's anti-SLAPP statute and California's litigation privilege didn't apply on the issue of federal subpoenas. The judge basically says the plaintiffs have it backward. "The Supreme Court has explicitly rejected the idea of a federal common law tort of abuse of process," he writes.

Later, Fischer concludes that litigation privilege — pertaining to communications connected to the pursuit of advancing the interests of litigants — also is a well-founded defense to the plaintiff's claim.

As a result of Fischer's order, the claim in the ongoing lawsuit that the defendants have abused process has been stricken. The defendants are still facing an allegation they violated the Telephone Consumer Protection Act by making automated calls to cellphones in pursuit of settlements.

The latest ruling doesn't mean that copyright holders will always be successful in their use of DMCA subpoenas to identify ISP customers flagged for copyright abuse. A couple of ISPs have put up a fight, looking to quash subpoenas, and some judges have found merit to the argument that the copyright holders don't have enough of a basis to go on a fishing expedition. Other judges have been permissive. There's not much of a uniform standard across the nation at the moment.

Rightscorp was represented by Sanford Michelman and Mona Hanna of Michelman & Robinson. The plaintiffs are represented by Morgan Pietz.

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