An interesting development in the world of copyright litigation, as rights holders secured a major victory in California on Friday. A court has ordered Morgan Pietz’s client in John Blaha v. Rightscorp to pay attorney’s fees due to a successful anti-SLAPP motion filed by the defendants. It raises ethical issues about using clients to try and further an anti-copyright law agenda, and drum up business.
A little bit of background…
Rightscorp is an anti-piracy corporation. It monitors BitTorrent usage, and then sends out notices to pirates who are stealing and distributing copyrighted content. From there, the company requests that pirates stop stealing the content, and pay the rights holder a reasonable fee of about $20. In this instance, Rightscorp was contacting people who stole and distributed films like The Shawshank Redemption and The Lord of The Rings: The Fellowship of the Ring, two of my favorite movies. Notably, Lord of the Rings is available on Amazon.com for $9.99, and Shawshank Redemption is available for the same price. If you’re that hard up for cash but really want to watch the movies, you can even rent them for a whopping $2.99.
Surprisingly, people routinely steal movies using BitTorrent, even though they are available for immediate purchase on Amazon and iTunes. People on the internet say it’s unfair when they get caught and sent a notice from Rightscorp, or sued. Of course, if you were caught stealing the same movie in Target, you would be arrested, prosecuted, forced to spend a lot of money on lawyer fees and restitution, and then at the end of the day you would have a criminal record for the rest of your life. So in the grand scheme of things, Rightscorp’s approach seems pretty reasonable.
Because the pirates can only be identified by their IP address, Rightscorp was able to identify them through a DMCA subpoena. The very purpose of a DMCA subpoena is to obtain the identity of an unknown person who is the defendant in a lawsuit. While organizations like the Electronic Frontier Foundation have been critical of using DMCA subpoenas to identify anonymous internet pirates, that is exactly why Congress created it.
Interestingly, Rightscorp’s innovative approach to anti-piracy was criticized by some on the internet. Namely, the same people who were arguing that lawsuits filed against infringers are extortionate due to the availability of statutory damages up to $150,000, said Rightscorp’s approach was unfair, too. It bears noting that anti-copyright activists like anonymous blogger Sophisticated Jane Doe think stealing over the internet is okay, and it’s unfair that thieves have to pay content owners a few bucks for digitally pilfering their property, as opposed to going to jail if they did it in real life. In addition to blogging, SJD also harasses copyright holders, their families, their children, their colleagues, their pastors, and their attorneys. Regarding Rightscorp, Sophisticated Jane Doe called their method “fraud and extortion”, but again, SJD calls all copyright lawsuits fraud and extortion because she believes everyone has a legal right to steal whatever they want on the internet without any consequences. (I find it interesting that people still listen to her.)
Rightscorp’s approach somehow lead to the company getting hit with a class action lawsuit.
But was the lawsuit legitimate, or was this a PR tactic?
As you can imagine, the internet cheered at the news. And better yet, the lawsuit against Rightscorp was filed by Morgan Pietz, who gained internet notoriety as an internet hero when he exposed Prenda Law’s fraudulent operation. Namely, Pietz was able to prove that Prenda Law’s principals were buying up old copyrights and then using them solely for the purpose of suing individuals who infringed on them. They weren’t producing any of the content, or trying to recoup actual losses for companies and artists harmed by piracy. Pietz has since gained recognition in the legal profession for defending people who are accused of copyright infringement. I give him a pat on the back for exposing Prenda. Pietz has built a practice representing individuals accused of copyright infringement.
So how did this lawsuit against Rightscorp come about? It looks like Pietz trolled for clients over the internet, looking for people to go after Rightscorp. Pietz’s lawsuit against Rightscorp was widely discussed in the media and on blogs, and it helped further his reputation as an internet hero.
Unfortunately, being an internet hero doesn’t help your client. And in fact, sometimes it can harm your client. Sadly, that’s what ultimately happened here, and John Blaha is left footing the bill.
See, if you read what’s out there on the internet about copyright lawsuits, the narrative goes like this: copyright holders just sue random people like grandmoms, children, and disabled people. They use unsuccessful lawyers to do it, and as soon as the courts see what’s going on, they sanction the lawyers for not having any evidence, dismiss the case, and enter in an order like what happened with Prenda. These lawsuits all settle because people are embarrassed, not because they’re guilty. Attorneys like Morgan Pietz are heroes who expose this kind of thing.
Reality is quite different. Copyright holders usually win in court, their lawyers are good, and people are stealing and distributing copyrighted content using BitTorrent at an alarming rate. The lawsuits filed against infringers settle because the infringers are guilty and don’t have a valid legal defense. There’s no fraud, no extortion, and Prenda was an extremely unique situation.
And today once again, the narrative told on the internet doesn’t fit reality, and John Blaha got hurt pretty bad because of it. And it’s funny, because I don’t hear a whole lot of clamor from the blogosphere…
In the suit against Rightscorp, Pietz alleged that the company had abused the judicial system by issuing 142 DMCA subpoenas. But how is using a DMCA subpoena to identify pirates, which is exactly what it is intended for, an abuse of process…?
It’s not. Despite what you may have heard on the internet. Copyright holders have a legal right under federal law to obtain DMCA subpoenas. Even if the internet doesn’t like it. See, feelings about a law do not constitute a defense.
Rightscorp argued that it not only had a legal right to obtain DMCA subpoenas, but suing it for using DMCA subpoenas constituted a violation of their First Amendment rights, and therefore Pietz’s client should be subject to an anti-SLAPP motion. Of course, the internet coined this argument as ridiculous. TechDirt wrote:
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 California federal court didn’t find this argument too ridiculous. In fact, it granted Rightscorp’s anti-SLAPP motion, and imposed attorney’s fees on John Blaha, Pietz’s client. The court explained that:
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, (see Opp’n at 7-12), 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.
Basically, the court said “I don’t like the law and the internet thinks it’s super unfair” is rhetoric, not a valid legal argument. And while your arguments might get you lots of love on the internet, which helps drum up business, it might also get fees imposed against your client.
Pietz has blogged his personal opinion about copyright lawsuits, suggesting that paying a settlement is “feeding the troll” and paying a “ransom”.
So how did this happen? I thought some people on the internet said Pietz was a hero, “copyright trolling” is wrong, and Rightscorp is the bad guy!
Well, understand this. Most blogs on the internet that discuss copyright infringement lawsuits have their own agenda. Many of the copyright BitTorrent defense lawyers who write blogs want you to hire them, and they want to be internet heroes. If you want to be a hero on the internet, write about the evils of “copyright trolling” and you’ll be loved. File lawsuits against anti-piracy companies like Rightscorp and everyone will write about how you’re an internet super hero like they did here. The blogs written by anti-copyright activists like Fightcopyrighttrolls believe people have a right to steal content on the internet, and it’s unfair when copyright holders elect to enforce their rights. So they praise attorneys who represent the infringers, while vilifying the attorneys who represent copyright holders.
Their agenda doesn’t comport with reality, though.
And when things go wrong, the internet isn’t left footing the bill. The defense lawyers aren’t left footing the bill. People like John Blaha are.
As an attorney, it’s our ethical obligation to represent the client, not to be an internet hero or push our own personal agendas. I’ve represented people accused of copyright infringement, and I’ve represented copyright holders whose content has been stolen. I’m not always popular, and the internet doesn’t always say nice things about me. But I do understand that my only obligation is to help my client as best I can. Nothing more, nothing less.
I’ve said it before, and I’ll say it again. I represent clients. Not causes.
Here it seems that Pietz sought out clients because he didn’t agree with Rightscorp’s legal tactics, based on either his personal views about copyright laws, and because he wanted to be an internet hero which might then result in getting more clients. And it worked at first. The internet applauded Pietz as a hero, he got a lot of good publicity, and he got hired by John Blaha.
But now with all said and done, Pietz looked good on the internet for a few minutes, the bloggers had fodder to use against Rightscorp, and John Blaha is on the hook for a lot of money. Money that won’t be paid by Fightcopyrighttrolls or with lots of internet love.
I have to wonder if filing this lawsuit was for the benefit of a client, or to further a cause. It got Pietz a lot of good press in the media, that’s for sure. But it didn’t help John Blaha much. In my opinion, embarking on litigation to further one’s personal anti-copyright law agenda and to drum up business, at the expense of a client, should be cause for moral and ethical outrage.