Can Lawyers Get Away With Anything? Court Declares the Dragonetti Act Unconstitutional

December 26, 2015

Generally, Pennsylvania attorneys’ actions are governed by the Pennsylvania Rules of Professional Conduct. However, if an attorney abuses process by filing and maintaining a lawsuit that was either grossly negligent or without probable cause, the attorney can also be held liable in a civil court under what’s known as the Dragonetti Act, 42 Pa. C.S.A. § 8351.

The standard to hold an attorney liable is high. Not only does one have to file and maintain a lawsuit that was either grossly negligent or without probable cause, but it also has to terminate favorably on the merits. This means you can go through years of frivolous litigation with little to no recourse. More often than not, litigants get burned out from incurring legal fees, and simply settle the case rather than take a chance on recovering their fees in a Dragonetti Action.

Nevertheless, and despite it’s high burdens, the Dragonetti Act is particularly important because Pennsylvania does not have an anti-SLAPP statute.

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The Truth About BMG v. Cox

December 19, 2015

Imagine that there is a house on your block where you’ve observed drug dealing and prostitution. You’ve taken pictures, and there’s even been some arrests. The cops say they’re too busy to arrest every person coming in and out of there. Finally you complain to the landlord, who says “I don’t endorse drug dealing and prostitution, but they pay their rent on time so I don’t really want to do anything about it.” Eventually the city decides to crack down and take away the property from the landlord, who then cries about how “it’s so unfair.”

That’s basically what happened in BMG v. Cox. In this case, a jury held an internet service provider liable for turning a willful eye towards its’ subscribers’ repeated copyright infringements.  BMG had retained Rightscorp, who sent thousands of notices to the most notorious individuals illegally pirating content via their Cox internet accounts. Cox basically said “Oh. We’ll look into that. Maybe.”

Why is piracy Cox’s problem? Because the Digital Millennium Copyright Act offers ISPs a safe harbor for the actions of its subscribers, but the ISP must adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to alleged infringing material (or remove such material from their systems) when they receive notification of an infringement claim from a copyright holder or the copyright holder’s agent.

In other words, federal law shields ISPs from liability, provided they do things like shut off the internet for subscribers who engage in piracy. Just like a landlord can get busted for renting to tenants who deal drugs.

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