TCPA AND FDCPA IN THE DIGITAL PIRACY CONTEXT

A consumer protection attorney in California is attempting to create a novel category of aggrieved consumers after suing Rightscorp, a piracy monetization firm, which protects copyright interests for some of the biggest media conglomerates.  On November 21, 2014, the class action complaint Reif, et al v. Rightscorp., was filed in the Central District of California alleging violations of the FDCPA, TCPA and the Rosenthal Act.   The resolution of this case will set an interesting precedent for the decade-long battle between copyright holders and internet pirates.

 

Although we routinely hear about infamous piracy platforms such as Napster or Pirate Bay taken down by authorities, there is little information on what happens to the everyday consumer that use these platforms to download copyrighted content.  In fact, the wealthiest copyright holders including Hollywood studios and major record labels are actively pursuing these “small-time crooks” through various means.   One of the most recent strategies employed by these corporations, which is the basis for the above class action law suit,  is to hire a third party like Rightscorp to send copyright infringers, via their ISP provider (AT&T, Comcast, etc.), a notice of settlement for $20 per infringement accompanied by a warning that if this settlement is not accepted, “you could be liable for up to $150,000 per infringement in civil penalties.”

 

In the complaint, the class plaintiffs allege multiple violations under the FCDPA; including § 1692d(5) for repeatedly calling the plaintiffs, § 1692e(5) for threatening to “escalate” a consumer’s case if they do not accept the settlement offer, § 1692e(10) for allegedly representing that a consumer’s ISP could shut off their service if they didn’t pay, § 1692(e)(11) for failing to disclose themselves as a debt collector, and a host of § 1692g(a) violations for lack of required information in written communications to consumers.  In addition, the complaint alleges violations under the TCPA for using an artificial/prerecorded voice to follow up on the settlement with the plaintiffs.

 

The resolution of this case can potentially expand the scope of “debt collectors” under the FDCPA and open up an array of new industry third parties brought into the purview of the FDCPA.  In respect to the digital piracy world, a loss for Rightscorp can significantly decrease copyright holders’ options in enforcing their rights.  Either way, this is a newsworthy case that we will keep our eyes on.