Five months ago I wrote about a lawsuit against an infamous copyright troll Rightscorp, filed by two Georgia residents who were harassed with repeated robocalls and text messages to their cell phones without consent, which is a clear cut violation of the Telephone Consumer Protection Act (Melissa Brown and Ben Jenkins v. Righscorp, Inc. et al, GAMD 15-cv-00012 ). The Act provides a relief to victims: $500 penalty for each violation. Plaintiffs, represented by Sergei Lemberg , didn’t specify the exact number of alleged violations (presumably many), but asked a trebled penalty for each instance ($1,500).

On 5/8/2015 Rightscorp, represented by attorney Michael O. Crain, answered to the complaint, denying any wrongdoing¹. This is laughable as I can’t imagine a shortage of witnesses who can testify under oath about similar harassment.

What’s more laughable is the affirmative defenses Rightscorp threw at the wall. 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.

Good luck with that.



(I bet if the Eighteenth Amendment wasn’t repealed, Rightscorp’s victims might reply in the same manner, claiming that defendant’s ridiculous claims were made under unconstitutional influence.)

Attempt to delay the comeuppance failed

One month earlier, on 4/10/2015, Rightscorp tried to stay this case pending the outcome of the anticipated motion for certification in the TCPA class action filed in California by Morgan Pietz last November (Blaha et al v. Rightscorp, Inc., et al, CACD 14-cv-09032). Rightscorp speculated that these lawsuits overlap and the plaintiffs would be a part of the class. The plaintiff responded on 5/01/2015: “no, they wouldn’t”:

Resolution of the instant motion is relatively straightforward: Plaintiffs unequivocally opt out of any class certified in Blaha. No class has been certified in Blaha. Whether one will be certified is entirely speculative. If one is certified at some later date, Plaintiffs have a due process right to opt out of any class and pursue their own claims against Rightscorp. See Fed. R. Civ. P. 23(c)(2)(v) (Rule 23(b)(3) class members must be permitted opportunity to exclude themselves); […] Plaintiffs opt out, they do not consent to have their claims against Rightscorp be decided in a class action where they would likely recover less then as individual plaintiffs and they do not wish to cede control of their claims to individuals and attorneys with whom they have no relationship. Because Plaintiffs opt-opt out of any class resolution, there is no ground to stay the case here.

It is wide known that “litigation by delay” is inherent to copyright trolling, and Rightscorp is not spared:

Rightscorp wants a stay because it, apparently, is being repeatedly sued for serial violations of the Telephone Consumer Protection Act and wants to limit its exposure by delaying cases and forcing Plaintiffs here to join a class action of which they want no part. With all due respect to Rightscorp, that it is involved in litigation in another jurisdiction for engaging in similar unlawful behavior is not this Court’s or Plaintiffs’ concern nor is it grounds to stay this case.

Yesterday Judge Charles Ashley Royal agreed with the plaintiffs (a promise to opt out of the class was fatal to the delay attempt) and thoroughly denied Rightscorp’s motion:

Coverage

Update

1/8/2016

On 1/4/2016 this case is ended with a whimper — settled. Of course we will likely never know how much Rightscorp coughed up. From Rightsorp’s standpoint it was a sensible outcome: I don’t think it had much chance of success on the merits.

¹ I somewhat agree with the defendant pointing to vagueness: indeed, the complaint would be way stronger if it itemized the violations, or at least specified how many times Rightscorp robocalled to its victims.