Rightscorp claims that Telephone Consumer Protection Act violates the 1st, 5th, 14th, and 8th Amendments to the US Constitution

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(I bet if the Eighteenth Amendment wasn’t repealed, Rightscorp’s victims might reply in the same manner, claiming that defendant’s ridiculous claims were made under unconstitutional influence.)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




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.

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4 responses to ‘Rightscorp claims that Telephone Consumer Protection Act violates the 1st, 5th, 14th, and 8th Amendments to the US Constitution

  1. Saw your tweet about this and thought it was a belated April 1st joke, but no. Just a joke of a copyright troll throwing up some frivolous defenses designed to delay the inevitable. Hopefully plaintiff’s get sanctions for this nonsense.

  2. Just wait until TPP gets passed. Then Rightscorp will be able to state that U.S. jurisdiction does no longer apply because robocalls are legal in Malaysia.

  3. Rightscorp will no doubt take advantage of any Investor-State-Dispute-Settlement clauses to claim that by barring unsolicited phone calls and other harassment that their potential income of $Billions was blocked by the government.

    Let’s point out that white-collar shake-downs are held to a far different standard than other crimes. What judge would allow an argument that “give me everything in your wallet” is protected by the first amendment? Yet here the lawyers can file facially frivolous argument without even a raised eyebrow from the court. In a fairer world a judge would summarily insist that such a “novel” (but previously litigated) claim be fully expounded, and a preliminary ruling issued, before the other side has to respond.

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