Pissed Consumer Gets To Go After Roca Labs For Its Bogus DMCA Takedowns
from the well,-this-could-be-interesting dept
Remember Roca Labs? The somewhat shady manufacturer of some goop that the company claimed was an "alternative to gastric bypass surgery." This was the company that initially sued the site PissedConsumer.com because it was hosting negative reviews of Roca's product -- and Roca claimed that because it pressured buyers into a gag clause saying they wouldn't say anything bad about the product, that PissedConsumer was engaged in tortious interference. There was a lot more as well, including threatening to sue us at Techdirt (more than once!) for reporting on the case, suing Pissed Consumer's lawyer Marc Randazza for defamation and a variety of other shenanigans (even including some bizarre side stories on Nevada politics, despite it being a Florida company). Anyway, late last year the FTC smacked down Roca for its misleading marketing and its non-disparagement clauses. Roca is still fighting that fight, but soon after it also lost the case against PissedConsumer.However, there was (yet another) separate legal fight that didn't get much attention in all of this. In late 2014, we had reported that, in continuing with its efforts to hide any negative reviews, Roca Labs had sent a clearly bogus DMCA takedown to Google (see it here), claiming that the reviews on PissedConsumer's site violated its copyrights. What I had not realized was PissedConsumer actually had filed a separate lawsuit against Roca back in January of 2015, focused solely on these bogus DMCA takedowns, arguing that they had violated the infamous DMCA 512(f) clause on bogus takedowns.
As we've noted, 512(f) cases are rarely successful, as courts don't seem to care much about them, and the law is written in such a manner that it's usually pretty easy to dance around a claim of "misrepresentation" in a DMCA takedown. And, in this case, the court dismissed the case, by basically saying that it was really nothing more than a counterclaim in the other, original, case filed by Roca. However, in a somewhat surprising move (actually, very surprising), the court has now agreed that the decision to dismiss the case was a mistake, and that this is a separate issue from the original case, and not a counterclaim. The reasoning is somewhat technical and procedural, but at the very least, it appears that the case against Roca for abusing the DMCA is back on track.
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Filed Under: 512(f), copyright, takedown
Companies: pissed consumer, roca labs
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Given how Roca enjoys fighting losing battles, there is a very nice chance we might end up with great caselaw to cite moving forward.
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* it sets a precedent
* that 'under penalty of perjury' thing gets taken seriously
* there is some punishment for perjury that has real teeth
* lawyers, who should know better, should also receive serious sanctions for misusing the DMCA
This could be the first case that could make bogus DMCA filers think twice.
Of course, I would still like to see a $150,000 per instance, statutory penalty for filing a bogus DMCA. If the DMCA itself has teeth, then the penalty for frivolously misusing it must also have teeth.
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What happened?
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Should have
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Roca has done exceptionally the wrong things to avoid attention thru the use of force of legal might. It seems every step they have taken has gone against them.
The fact that Roca brought more attention to themselves and their product, just goes to show you how bad a strategy this was in my opinion, I would have to think their chief strategist was someone named Wylie E. Coyote , but even Wylie was smart enough to walk away when the going got tough.
Roca much like Suburban Express will live on in infamy for the attention it brought to itself and it's product that many folks had never even heard of, but now know of and would be wary of going near.
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Nice try, but a true fail. And since PaulT won't stop hounding me I refuse to log in this time. Go ahead, report me!
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Please elaborate for us, or brilliant one, how these reviews are NOT fair use. Enlighten us with your wiz dumb.
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Everyone else seems to get it. The courts. The FTC "Roca has an adversarial relationship with the truth". Etc.
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How about that Rambler club logo that you use with your screen name? Can you point me to where you were given permission to use it? Or should we report you for giving other Rambler club members a bad name via your posts?
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Which part of the 512(f) claim do you think is legally wrong? A DMCA letter was sent. Check. Do you think Pissed Consumer's use of thumbnails of a site isn't fair use? If Wayne Hoehn can repost an entire article for fair use purposes, isn't a thumbnail even fairer? Shouldn't Roca have known that it was?
Please astound us with your legal insight.
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No copyright work? No copyright even involved? Then ROCA signed a fraudulent DMCA notice, under penalty of perjury.
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I'm unclear on why Pissed Consumer decided to file a motion for reconsideration AFTER appealing the order. Isn't it supposed to be the other way around so that the appeals court is truly your last resort?
And as for the guy calling this a SLAPP suit, that's not how this works, unless you think that every claim under Section 512(f) is a SLAPP suit. Besides, the DMCA takedown notice is more concerned with trademark than copyright law, which should automatically create liability under 512(f).
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This is golden.
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