Janis Joplin famously sang that "freedom" is just another word for nothing left to lose. In the contentious arena of online copyright claims, one person's "freedom" might be another's "illegal robo-calls."

Controversial copyright enforcer Rightscorp was hit with a proposed class-action lawsuit in November, claiming that its method of collecting cash from alleged online pirates included harassing phone calls, which are illegal under federal law. Now the company has struck back against that lawsuit, saying that a secondary claim in that lawsuit is actually a violation of California's anti-SLAPP statute. The California law is meant to allow defendants to quickly strike down lawsuits that threaten "public participation."

When Morgan Pietz, the attorney who took down infamous "copyright troll" Prenda Law, sued Rightscorp (PDF), he included two claims. The first was a violation of the Telephone Consumer Protection Act (TCPA) which generally bans "robocalls" to cell phones. He also alleged that Rightscorp engaged in "abuse of process," by filing 142 DMCA subpoenas to get customer contact info, despite knowing the subpoenas were legally invalid.

Two weeks ago, Rightscorp hit back, filing an anti-SLAPP motion (PDF) which says the "abuse of process" part of the suit "impermissibly impairs Defendants’ free speech and petitioning rights."

Rightscorp says it has to serve subpoenas on ISPs to find out who's infringing their clients' copyrights. "Such a subpoena is at the heart of this lawsuit," Rightscorp lawyers state.

Yesterday, Pietz filed a response (PDF) to the Rightscorp motion. It's mostly focused on venue, arguing that Rightscorp shouldn't even be allowed to bring up the California anti-SLAPP law against his "abuse of process" claim, which is based on the use of DMCA subpoenas—covered under federal copyright law.

Even if Rightscorp could overcome the venue issue, the anti-SLAPP is meant to protect First Amendment activity "in connection with a public issue," notes Pietz. "There is no authority plaintiff is aware of that might suggest that making unlawful robo-calls demanding 'settlements' of unproven claims for copyright infringement is a matter of public concern, as opposed to a private dispute between the copyright owner and alleged infringer," he writes.

Now that the anti-SLAPP issue is briefed, a ruling could come at anytime. Whichever way it goes, the lawsuit will continue, since it doesn't challenge the TCPA case, which could result in major damages if successful. However, losing an anti-SLAPP motion comes with a requirement to pay attorneys' fees. If Rightscorp is successful, it would be a major setback for Pietz and his clients.

Small ISPs, big enforcement plans

Rightscorp makes money by hunting for copyright infringers on BitTorrent networks, then sending them notices requesting a settlement payment of $20 per infringed work. The Rightscorp system only works when ISPs agree to forward its notices, or hand over subscriber info in response to a subpoena. Most of the time, that doesn't happen. Rightscorp says that only about 15 percent of the US population is served by an ISP that agrees to send on Rightscorp copyright notices in some form.

The company was founded in 2011 by Christopher Sabec and Robert Steele, who are named as defendants in Pietz's class-action suit. The publicly-traded firm has lost more than $6 million since its founding, and is in danger of going bankrupt. The company's March earnings report shows that almost 90 percent of Rightscorp earnings come from its two biggest clients, BMG Music and Warner Music.

Pietz filed a proposed class-action lawsuit against Rightscorp in November of 2011, saying the company broke the TCPA in pursuing subscribers it believes are infringing copyright. Rightscorp top executives are included as defendants, as are its largest clients, BMG and Warner. The suit was amended last month, to change the named plaintiff to John Blaha, an Iowa man who gets Internet service from Imon Communications LLC. According to Pietz's complaint, Imon provided Rightscorp subscriber information, including that of Blaha, without providing him "any notice or an opportunity to respond to Rightscorp’s DMCA subpoena."

There are other mass-enforcement schemes for online copyright, but they're typically based on filing lawsuits against infringers. Examples include the defunct Prenda Law firm, as well as adult film studio Malibu Media, now the top filer of copyright lawsuits in the US. Unlike other enforcement entities, Rightscorp limits itself to mainstream, non-pornographic content.