Rightscorp Claims Its Harassing Phone Calls Safeguarded By Multiple Constitutional Amendments
from the putting-the-'rights'-back-in-'rightscorp' dept
Third-party copyright troll Rightscorp is fighting a couple of lawsuits related to its alleged telephonic harassment of alleged infringers. One wonders what the ROI is on funding robocalling in pursuit of $10-20 "settlements" from suspected infringers. Whatever it is, the ROI is definitely edging further into the red, what with the company now paying lawyers to safeguard its "right" to harass and threaten people who won't pay up (or haven't even performed any infringing activity).
I don't make this assertion lightly. Multiple complaints made to the FCC back up the assertions being made in two class-action lawsuits. Rightscorp has responded to the allegations made in the lawsuit filed earlier this year, claiming the company willfully violated the Telephone Consumer Protection Act (TCPA) in its "collection" efforts. (Note that most collection efforts revolve around unpaid bills -- something consumers previously agreed to pay in one form or another. Rightscorp's "collections" involve no agreement from consumers -- only accusations based on little more than snippets of torrent activity and an IP address. And yet, the company treats accused infringers as though this is unpaid debt, rather than the speculative wallet-rummaging it actually is.)
Rightscorp's response is hilarious -- although certainly not intentionally. First off, it denies pretty much every allegation except for the issuing of subpoenas and emails -- things nearly impossible to deny thanks to the paper trail they create.
Once it gets past that point, it starts issuing its affirmative defenses. According to Rightscorp, several Constitutional amendments enshrine its right to harass alleged infringers over the phone.
While the majority of its eleven defenses are questionable enough, the defenses 3-6 attack the law itself, claiming that TCPA is unconstitutional, namely it violates the First, Fifth, Fourteenth, and Eighth Amendments. Why is it so, Rightscorp doesn’t say.From the filing:
The Telephone Consumer Protection Act (“the TCPA”), codified at 47 U.S.C. § 227, upon which Plaintiffs’ claims rely, violate the First Amendment of the United States Constitution.It appears Rightscorp would rather have the court examine a law twice held to be constitutional than look into its "collection" activities.
[...]
The TCPA violates the Due Process Clauses of the Fifth and Fourteenth Amendments of the United States Constitution.
[...]
The TCPA violates the Excessive Fines Clause of the Eighth Amendment of the United States Constitution.
The First Amendment argument isn't exactly novel. Rightscorp and Warner Bros. have previously argued that copyright trolling is free speech. But, in that case, at least it actually made an argument. The affirmative defense offered here is nothing more than literally "the law violates the First Amendment," something no court has held to this point.
Beyond that, the other affirmative Constitutional defenses offered by Rightscorp are probably going to be viewed as "novel" by the court -- something that's rarely a compliment when it's written in a judicial opinion. As of right now, they're not even arguments. They're just assertions. The real fun will begin when Rightscorp starts explaining how violating a consumer protection law is not just protected speech, but is safeguarded by the application of Fifth, Eighth and Fourteenth Amendments.
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Filed Under: constitution, due process, fifth amendment, first amendment, harassment, robocalls
Companies: rightscorp
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TCPA recently *further* clarified by the FCC
http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0710/FCC-15-72A1.pdf
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I love commenters like this that think police should be allowed to break laws in order to enforce the law, not to mention can't be bothered to read the article for context before dropping off their stupid comments.
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Your weak attempt at analogy is bad and you should feel bad.
"I love websites like this that allow laypeople to say whatever they want, with no basis in law or fact."
... and your alternative is? I'd guess you approve of censorship when it is not your rights.
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It's probably one of the inherent rights, the "right to the pursuit of happy nerds".
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I see A New Business Model
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This is why Copyright should go away
It only seems fair that the abuse of copyright by a few bad actors should similarly be able to get Copyright to completely disappear in a flaming puff of greasy black smoke. (a truncated devilish scream is briefly heard as the flames vanish.)
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I need to program my speed dial ....
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Your right to call Rightscorp at all hours of the night must end when either (1) they pay you, or (2) you decide to take them to court in a lawsuit and are prepared to prove your case. As long as you are not prepared to prove anything, and they don't pay, then you can keep calling.
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No standing?
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So is bullying.
HOWEVER: the 1st amendment won't let you avoid the consequences thereof.
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So we don't have to follow the law because we think the law is stupid, because it denies us our cash by harassing people into paying us for allegations we can't prove and most likely would fold under scrutiny.
I look forward to their next venture into this area, peddling their patent snakeoil a 3rd (4th) time to an industry who insists that they are sick, but ignoring that they might stop being sick if they stopped hitting their head against the wall while demanding it move out of their way.
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It's more likely the SCOTUS would issue a permanent restraining order preventing Rightscorp, its sucessors or agents continuing the behaviour or inciting others to do so.
One can hope anyway.
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