Warner Bros. Asserts First Amendment Right to Hunt Copyright Pirates

Hollywood Sign - H 2014
AP Photo/Reed Saxon

Hollywood Sign - H 2014

What's in the First Amendment? Free speech, free religion, free assembly? Of course. How about freedom to hunt copyright pirates? Look closely.

Rightscorp, a company that represents copyright holders like Warner Bros. is asserting its constitutional privileges in defense of a class-action lawsuit. The legal action accuses RIghtscorp, Warner Bros and BMG Rights Management of abusing the legal process by seeking subpoenas to identify the IP addresses of those flagged for sharing copyrighted films and television shows.

The lawsuit primarily targets activity from Rightscorp. In an amended complaint filed in March, John Blaha complains that Rightscorp obtained his contact information through a subpoena of his Internet service provider. Afterward, Blaha says he was sent a settlement offer.

But it didn't end there.

Rightscorp allegedly then made "repeated robocalls to Mr. Blaha’s cell phone" with prerecorded messages containing warnings there was evidence he had violated the copyrights of Rightscorp's clients. Other phone calls then came, Blaha says, from "human collections agents" "around once per day starting in approximately early July of 2014, and continued at about that frequency for around two months, but then tapered off to more like one or two per week through October of 2014."

And more.

"In addition to the voice Robo-Calls, Rightscorp also sent Mr. Blaha text messages to his cellular telephone, indicating that Rightscorp knew it was attempting to contact a cellular telephone," continues the complaint.

A proposed class-action lawsuit has now been filed on behalf of Blaha and others alleging that Rightscorp has violated the Telephone Consumer Protection Act by making such automated calls to his cell phone. As for Rightscorp clients like Warner Bros. and BMG, the lawsuit asserts they are responsible for a Rightscorp official "intentionally us[ing] the special DMCA subpoena procedure to issue subpoenas that are invalid," that the subpoenas only served to further a barrage of harassing communications.

Last week, Rightscorp stepped forward in an attempt to kill the abuse-of-process claim. Warner Bros. filed papers adopting the arguments too. The defendants have invoked California's anti-SLAPP statute, which is meant to deter frivolous litigation that impinges First Amendment rights on matters of public concern.

Rightscorp asserts it had a good-faith belief when seeking the identity of those pirating films such as The Shawshank Redemption, Gravity and The Lord of The Rings: The Fellowship of the Ring. Further, the company frames it as a good thing that customers are being offered to settle copyright liability for $20 per infringement, "a settlement option that extinguishes thousands of dollars (in some cases, hundreds of thousands of dollars) of potential liability."

The key to the First Amendment argument is that besides speech, religion and assembly, this constitutional clause also protects the right "to petition the Government for a redress of grievances."

According to defendants' memorandum, "Plaintiff is attacking Defendants’ right to petition courts in the Ninth Circuit to issue DMCA subpoenas to identify copyright infringers. Such attacks are prohibited in California if Plaintiff cannot establish a prima facie case at the outset of litigation that California law prohibits Defendants efforts to obtain DMCA subpoenas."

The memorandum argues that Blaha has no probability of prevailing in his lawsuit because obtaining information about Internet users engaged in acts of infringement via peer-to-peer file sharing doesn't qualify as abuse under the Digital Millennium Copyright Act. The defendants say secondary lawsuits should not be used to chill an attorney’s zealous advocacy on behalf of a client. And they further argue the subpoenas can't be ruled as tortious because of "litigation privilege," or immunity from acts connected to the pursuit of advancing the interests of litigants.

Petition rights are not absolute. Warner Bros proved this in a case involving a lawyer who allegedly interfered with the studio's Superman rights. Litigation privilege is not bullet-proof either. Warner Bros. showed this in a fight with the estate of J.R.R. Tolkien over rights connected to The Hobbit and The Lord of the Rings. In a ruling that's now before the 9th Circuit, a judge ruled that a Tolkien lawyer's communications in anticipation of a lawsuit didn't shield the estate from Warners' counterclaim of allegedly repudiating the Hobbit deal.

And yet, despite being on the other side of SLAPP arguments in those fights, Warner Bros is now adopting the argument that "privilege is broadly applied" to cover subpoenas that are argued to be an abuse of process. In doing so, the studio aims to protect a legal maneuver that has recently curried favor in the war against piracy. Besides Rightscorp's use of subpoenas, other entertainment companies that have exploited them in recent months include Marvel, hunting an Avengers: Age of Ultron leaker, Disney, looking for the person leaking images from Star Wars: The Force Awakens, and AMC, seeking information about the source of Walking Dead screenshots online.

The defendants, represented by attorneys at Michelman & Robinson, are demanding that Blaha's side pay their legal costs.

Email: Eriq.Gardner@THR.com
Twitter: @eriqgardner