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Rightscorp wins one, loses one

By | Published on Wednesday 13 May 2015


Rights owners sending warning letters to suspected file-sharers in the US, and asking for one-off payments to make good on past copyright infringement, have had both a win and a loss this week in the ongoing legal debate about the rights and wrongs of their anti-piracy tactics.

As previously reported, whereas the industrial sending of warning letters to suspected file-sharers sort of fizzled out over here, in the US it has become a key anti-piracy tactic for some in the music and movie industries. Most of the big ISPs are part of the Copyright Alert System, and pass on letters provided by rights owners or their anti-piracy reps under that initiative.

But those net firms outside that system can in theory be forced to reveal the identity of customers suspected of file-sharing via the courts, meaning the content company can send a letter direct. Said letter will usually warn the recipient that they are suspected of infringing copyright, and will then set out the rather high damages they could theoretically be ordered to pay if the matter went to court. A nominal cash settlement is be proposed, along with a commitment to never infringe again.

The letters have proven controversial in some quarters, and in Canada – where something similar to the Copyright Alert System went live earlier this year – various consumer rights groups and academics have asked the government to review the content of letters sent.

Meanwhile in the US both ISPs and letter recipients have gone legal, arguing that rights owners and their agents – usually it’s anti-piracy firm Rightscorp – shouldn’t be allowed to get long lists of suspected shareholders’ addresses via a simple subpoena under America’s Digital Millennium Copyright Act.

A class action led by a letter recipient called John Blaha said Rightscorp’s tactics were an abuse of legal process, a claim strongly disputed by the firm, which cited California’s anti-SLAPP law designed to deter frivolous litigation as reason enough to throw the case out of court.

And they succeeded, with judge Dale Fischer saying this week that – while he wasn’t commenting on whether Rightscorp was correctly using the DMCA subpoena system – its legal filings to date do not constitute abuse of process, mainly because there was no evidence the anti-piracy firm had any ulterior motives other than those listed in its legal filings.

Said the judge, according to the Hollywood Reporter: “Whether or not [DMCA] 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”.

But it’s not all good news for Rightscorp. One ISP which refused to hand over contact information for its customers has prevailed in court for a second time.

As previously reported, net firm CBeyond argued that the subpoenas being secured by Rightscorp shouldn’t apply in file-sharing cases, and in February a court sided with that viewpoint. The anti-piracy company quickly filed various objections to that ruling, but those objections have now been knocked back by the courts as well.

So, one step forward one step backwards this week for Rightscorp. Remains to be seen what its next move will be.