Pissed Consumer Gets To Go After Roca Labs For Its Bogus DMCA Takedowns

from the well,-this-could-be-interesting dept

Thu, Jan 28th 2016 2:07pm — Mike Masnick

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.

Gov-Uscourts-Flmd-309099-1-0 (PDF)Gov-Uscourts-Flmd-309099-1-0 (Text)

059-Order-on-Motion-to-Alter-Judgment (PDF)059-Order-on-Motion-to-Alter-Judgment (Text)

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Filed Under: 512(f), copyright, takedown
Companies: pissed consumer, roca labs

21 Comments

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That Anonymous Coward (profile), 28 Jan 2016 @ 4:01pm

I can only hope that the case gets to go forward. It would be nice to show in court how easily even the most bogus and outrageous claims get a pass because the law is far to easily abused.

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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madasahatter (profile), 28 Jan 2016 @ 4:20pm

What happened?
Roca must be run by a masochist. None of the lawsuits or threats had any real legal merit and were only done to harass. But they should of picked a target with very shallow pockets and no knowledge of the law.
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Anon E. Mous (profile), 28 Jan 2016 @ 5:59pm

Roca and it;s people in charge honestly must be somewhat delusional in their attempts to silence their critics thru lawsuits. As these cases drag on and on, all they have to show for their efforts is a high legal bill and attention to their brand that they were trying to avoid in the first place.

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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Ninja (profile), 29 Jan 2016 @ 2:08am

Are we witnessing the birth of a new Prenda? *ominous music*
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Whatever, 29 Jan 2016 @ 4:20am

Bullcrap, major, major bullcrap. Fair use was clearly not established in this case, but since this site is staffed by pirates expecting you to understand the nuances was too much for your inferior minds. Like Ninja, who can't think past the end of his nose.

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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Anonymous Coward, 29 Jan 2016 @ 4:46am

Where ever, whenever, with whom ever.
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Anonymous Coward, 29 Jan 2016 @ 5:01am

Re: What happened?
" should of "
Should have
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DannyB (profile), 29 Jan 2016 @ 5:39am

Re:
More than just going forward, I hope:

* 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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DannyB (profile), 29 Jan 2016 @ 5:41am

Re:
There's a SCO / Righthaven / Prenda / Roca born every minute.
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DannyB (profile), 29 Jan 2016 @ 5:45am

Re:
Reviews seem to be fair use. These are reviews of a physical product, not a sound recording, movie, book, writing, sheet music, etc.

Please elaborate for us, or brilliant one, how these reviews are NOT fair use. Enlighten us with your wiz dumb.
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DannyB (profile), 29 Jan 2016 @ 5:47am

Re:
Before I mention Fair Use, I should ask: how would Copyright even enter in to this? Once you establish that there is a copyright at issue, then establish how fair use was violated.

Everyone else seems to get it. The courts. The FTC "Roca has an adversarial relationship with the truth". Etc.
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Anonymous Coward, 29 Jan 2016 @ 7:08am

Re:
I see...so I can post a review of anything I want, I just can't name it specifically.

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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Another View, 29 Jan 2016 @ 7:37am

I dont know why you do not find this offensive. This is very obviously a SLAPP suit filed by the Randazza firm. Roca Labs sent a letter to someone and so they got sued for it? Why? What harm did they do in doing that? And he wants to file this case because it is part of the copyright law? This is being a troll. Techdirt should be ashamed of itself for saying anything positive about this.
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Not SLAPP, 29 Jan 2016 @ 8:00am

Re:
How, exactly, is it a strategic lawsuit against public participation? Was the DMCA notice a comment on a matter of public concern, or simply an attempt by Roca to remove the comments of others commenting on matters of public concern?
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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Wendy Cockcroft, 29 Jan 2016 @ 8:05am

Re: Re:
^THIS!!!
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Dave, 29 Jan 2016 @ 9:12am

Wait, a judge changed her mind? In FLORIDA? I don't think anyone saw that coming. With someone this wishy-washy presiding over the case, who knows what will happen?

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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Buttman, 29 Jan 2016 @ 9:39am

This is golden.
I can't wait to see the outcome of this 512(f) claim. Roca Labs needs a good, healthy reality check. You can't make crap products & expect people to be quiet about how crappy they are. I really hope PissedConsumer prevails and Roca Labs is publicly shamed in law school textbooks everywhere.
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DannyB (profile), 29 Jan 2016 @ 9:40am

Re:
When ROCA filed that (bogus) DMCA, exactly what copyright work was being infringed? (eg, what sound recording, movie, text, image, written work, software, etc was having its copyright infringed?)

No copyright work? No copyright even involved? Then ROCA signed a fraudulent DMCA notice, under penalty of perjury.
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Anonymous Coward, 29 Jan 2016 @ 11:26pm

Re:
This was sent no doubt from a Roca Labs IP address.
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Anonymous Coward, 14 Mar 2017 @ 9:25am

Re:
How's your John Steele defence fund going?
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Anonymous Coward, 14 Mar 2017 @ 9:26am

Re:
Yes, how dare they defend themselves from bogus DMCA notices.
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