Bad Things Happen When Lawyers Stop Representing Clients, and Start Representing Causes – John Blaha Ordered to Pay Rightscorp Attorney’s Fees

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.

Bummer.

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.

15 Responses to Bad Things Happen When Lawyers Stop Representing Clients, and Start Representing Causes – John Blaha Ordered to Pay Rightscorp Attorney’s Fees

  1. davidclowery says:

    Reblogged this on The Trichordist and commented:
    This may be a little far down in the weeds for some of you. But this ruling is good. If this lawyer had won it would have totally gutted what’s left of the DMCA act. This would have made unworkable the only mechanism there is left to stop unrepentant pirates when the cable companies refuse to cooperate with rights holders. This suit always seemed to me that it was really about protecting the cable companies bad business practices not defending John Blaha’s rights. Too bad John Blaha got stuck with the bill (Well maybe not).

  2. colleenzmail says:

    May 10, 2015
    To Philly Law Blog – WordPress
    Ethics certainly applies in the case of Erp vs Erp
    I am Mary Erp of Florida Case Law
    Erp v. Erp 2Do5-3144 2Do6-1934

    I was shocked upon reading an interpretation of my case by Brian Vertz (http://www.familylawyerspittsburgh.com/florida-court-declines-to-adopt-fair-value-in-erp/ ) as my original and continuing issue with Ex-husband was violent and abusive behavior. My Attorney Mr William Haverfield of Ft Myers (as well as Appeals Attn Robert Donald) never allowed me to present the evidence including a 911 Report during the Divorce. Mr. Haverfield told me that Judge Hugh Starnes didn’t want to hear about abuse.
    Why did it take an Attorney in Pennsylvania to interpret how and why the Florida Courts ruled against me as they did.
    https://wordpress.com/posts/colleenzmail.wordpress.com

  3. Mitch Stoltz says:

    Jordan, I’ve said it before and I’ll say it again: get off your high horse. You do represent a cause. Anyone who carries on about “pirates” as often and as mantra-like as you do is representing a cause. Anyone who says repeatedly that everyone accused of copyright infringement is liable is representing a cause. If you weren’t representing a cause you would have settled before that mockery of a damages trial in Pennsylvania, and you wouldn’t have inveighed against the moral ills of copyright infringement on your blog while representing a defendant – your rhetoric certainly didn’t help him.

    You’re entitled to your opinions about copyright infringement but calling yourself a disinterested advocate while thundering away about “theft” like Moses on the mountaintop is disingenuous. You should just admit that you have a cause, and that cause is standing up for movie producers. There’s nothing ignoble about that. It puts you in good company. And it would be the intellectually honest thing to do.

    Your post misrepresents the law on DMCA subpoenas. Yes, Congress intended them to be used to identify infringers when sent to intermediaries that store content (512(c) intermediaries) but Congress didn’t intend that the subpoenas could be sent to ISPs who only transmit data. Rightscorp’s DMCA subpoenas to ISPs are not valid. That’s the opinion of essentially every court ever to consider the question, and it’s been settled law for over ten years. The N.D. Georgia just ruled on that question again against Rightscorp in the Birch case. Just like every single court ever to hear it rejected Randazza’s (and Prenda’s) wacky “negligence” theory of copyright infringement. These are facts, Jordan, no matter how many times you call me a pirate-lover when I point them out.

    • We settled the Bellwether case while the motions to dismiss were pending; months before trial. Had I let it go forward, it would have been solely for the purpose of being an internet hero. With my client left footing the bill. And while internet love is great, it won’t exactly satisfy a judgment against my client, whose interests come before my own. See how that works?

      In any event, this is where you’re missing the point. If I were disinterested, I wouldn’t be writing about copyright litigation. Clearly, my personal opinion is pro-intellectual property, and anti-pirate. I don’t claim otherwise.

      My point is two fold…

      First, a lot of copyright blogs are written to get internet love, and to drum up clients. They’re written by people who were caught infringing, or attorneys looking for more bittorrent defense clients. If internet love is what I wanted, I’d write about the dangers of copyright “trolling” (rather than client trolling). The internet would hail me a hero. Most of what is out there has created an extremely inaccurate picture of copyright litigation, as it was written by people who are anti-copyright or looking for more clients.

      More importantly, I don’t litigate to make the internet happy. As an attorney, my goal is to advocate for my client. That’s it. While arguments like “I don’t agree with this law” or “copyright holders are mean and hurtful bullies” make the internet squee in delight, they also don’t work well in court. They can even get your client hurt.

      And that’s what happened here. The internet was so happy to see Rightscorp get sued. Morgan got a lot of internet love.

      But who is left footing the bill at the end of the day? Not the internet. Not Morgan. John Blaha. And that bill can’t be paid in internet love.

  4. Hi, Jordan.

    Excellent blog. Thank you.

    I noticed in an Editor’s Note on one of your previous posts that your blog is creative commons licensed. I am a newsletter editor for a published authors’ group and I should very much like to share an excerpt of your admirable writing in defense of copyright owners’ rights. How much of this piece would be “fair use” in your opinion if I were to snag it?

    Thanks very much.
    Rowena

  5. […] a cause.  If you haven’t had a chance to read Jordan Rushie’s view on this topic, his post is located here. I haven’t had the opportunity to go over the full details of the Pietz/Blaha case, so this is […]

  6. Cynthia Conlin says:

    Hi Jordan,

    Respectfully, your blog includes a few misstatements. While I am not going to mention all of them, a few in particular jumped out at me. (Also, I have not reviewed the Blaha case, so my comment has nothing to do about it.)

    First, you use the word “steal” about 9 times. As Attorney Stoltz mentioned, and as you already know, being “accused” of something and having done it are not the same thing. Trolls do not send letters to “pirates” who “steal.” They send them to the owners of Internet accounts whose IP addresses have been identified as possibly having been utilized to download content. The accountholder should never be automatically accused of “stealing” without more evidence linking him or her to the act, and disproving his or her defenses.

    Secondly, you say, “copyright holders usually win in court.” However, in BitTorrent cases, there is rarely (almost never) a decision on the merits. Most cases settle out of court or are dismissed. Settling is not a “win”; it is a compromise. So the statement that “copyright holders usually win in court” is incorrect in this context.

    Thirdly, you say that anti-troll bloggers are “anti-copyright” and “believe people have a right to steal content on the internet.” That is speculation. Being anti-extortion is not the same thing as being anti-copyright. How can you even say what someone else “believes” without speculating?

    • Oh Cynthia. So much stupid, so little time this morning.

      On a preliminary note, I find it interesting that you refer to copyright holders as “trolls.” Prenda Law were trolls. They bought up copyrights solely for the purpose of suing people, not actually producing content. A federal judge specifically held that Malibu Media is not a troll, as it owns and generates all the content it produces.

      Simply enforcing your intellectual property rights does not make one a “troll”, even though the internet said it.

      See how that works?

      First off, maybe I’m a simple person, but taking stuff you’re not supposed to without paying for it is stealing. I walk into Walmart, put a CD in my pocket, and leave the store without paying, that’s theft. Just like if I install bittorrent, download and distribute the CD, instead of paying $9 on iTunes. Copyright infringement is theft. You’re acquiring things that don’t belong to you without paying for them. That’s why there is a criminal law against copyright infringement.

      Yeah, I know, an IP address is not a person. Good argument! I’ve never heard it before.

      An IP address is a license plate, basically. Someone gets into a hit and run and a snapshot of the plate is taken. Usually the owner of the car is the one driving. Sometimes it’s not, but the owner will know who was driving their car on the night of the accident.

      Second, the reason you never see disposition on the merits is because there’s almost always nothing for a court to decide after discovery. The only time a bittorrent case saw the inside of a courtroom, all of the Does were guilty. The only reason it went to trial is because the court forced it to. (Hint: I was there). Does can either settle the case early, or perjure themselves in depositions and get killed at trial under a preponderance of the evidence standard.

      “Sure, members of the jury. I had bittorrent installed on my computer. And yeah, I used it to pirate stuff. And sure, I searched for “The Princess Bride torrent” on Google. But I didn’t pirate the movie!”

      Good defense, bro. I’m sure the jury bought it hard.

      That’s why 99% of all civil cases settle, and these cases specifically.

      Taking a Doe to trial in 99.9999% of these cases would be malpractice. Bear in mind that while Joel Tennenbaum and Jamie Thomas Rasset were internet heroes for taking their cases to trial, with a defense of “it’s so unfair!!!!!!”, both of them ended up getting big judgments lodged against them. Which can’t be paid in internet love.

      If you listen to the internet, you’d get the impression that no one steals anything off the internet, random people are being targeted, and the cases just settle to avoid hassle and embarrassment. The elephant in the room is that the evidence is accurate and people steal things off the internet like crazy.

      It’s not “copyright trolling”, it’s copyright holders enforcing their rights against people who steal their intellectual property. And the internet thinks that’s like, so unfair.

      Third, read Fightcopyrighttroll’s tweets. Which I know you do.

      What I find more interesting that you didn’t address the important part about Fightcopyrighttrolls. Are you aware that she has emailed my entire staff, down to the paralegals, several times? Are you aware that she harassed the daughter of a pro-copyright blogger? That she has sent many private emails saying “fuck you” and “scumbag?” That she threatened to send letters to an attorney’s pastor?

      Do you condone her harassment of other attorneys and their clients?

  7. Former Falsely Accused Jane Doe, that won and paid nothing insettlement says:

    Jordan, I find your rants self serving, childish, and just a means to try to drum up more clients for your cause. Whatever ever your caise might be (likely making money). Most lawyers and law firms actively advertise to obtain more clients. They all have supposed areas of expertise that they offer to the public as a business.

    Internet love, heroes? This name calling is just character assassination and childish.

    If you actually had evidence of infringement you wouldn’t be settling for $750, rather go to trial for the full $150,000. This would send a clear message to the public to stop pirating. So obviously you, Lipscomb and the most prolific porn claim filer, Malibu Media don’t belief you could win in a trial. You settle for less than it would cost to hire a defense attorney. This clearly shows, you have nothing but, don’t mind taking money from without question innocent people. Perhaps the majority are guilty however it is the innocent ones tthat is very disturbing and I hope you someday understand the harm you cause people with such weak investigations, wild ass speculation and over the top accusations.

    Look you are just a front man, putting you name on boiler plate garbage that could not make it to trial. I don’t see how that doesn’t make you a stooge. .

    • “Former Falsely Accused Jane Doe”, it would be interesting to know of what you were allegedly falsely accused by Malibu Media/X-Art and why they took you to court and then backed off, and also why you don’t post under your real name.

      You are obviously outraged. But why?

      It’s ironic that Jordan wrote a criticism of lawyers who litigate for a cause rather than for a client, and you accuse him of advocating for a cause.

      Personally, I find Jordan’s subject matter disclaimer rather refreshing. And… not that Mobilism is a BitTorrent, but today I saw proof that they do indeed host files, picture files.

  8. Ray Johnson says:

    It’s fortunate civil rights lawyers didn’t buy your BS on lawyers not working for a cause. Otherwise, schools would still be segregated and African Americans would be drinking from separate drinking fountains. And if you think you aren’t advocating for a cause, you should go back and read what you write. It’s just the wrong cause. Suing people by the thousands who did not illegally download anything is hardly the high moral ground. Accusing them of criminal activity because they pay for an IP address is equally disgusting.

  9. whitakerlaw says:

    I completely agree with the statement that lawyers represent clients and not causes. But I honestly don’t believe you do. Reading this was almost comical given your involvement with the so-called bellwether trial that was a complete farce. After the trial you wrote a blog post completely throwing your own client under the bus and basically licking the shoes of LIpscomb and his team.
    Jordan Rushie throws own client under the bus after Bellwether trial

    But unlike you, I do actually represent both sides diligently. I’ve successfully represented many copyright plaintiffs, even securing a $1.3 Million jury verdict for a copyright owner whose works were infringed. I’ve also successfully represented copyright defendants, like securing a $25,000 attorneys fees award for the defendant after defeating a copyright infringement claim. I am the champion of no cause, but I know when I see bad lawyering. And that bellwether trial was the quintessential example of bad lawyering.

  10. I wouldn’t say that all bad things happen when lawyers stop representing clients. You really do need to take things case by case. In this particular instance it might be that, but there are other situations where it might make more sense.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: