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Righthaven Files Suit Against Ars Technica Writer, Quickly Dismisses It

Righthaven Admits (One) Mistake

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Eriq Gardner, a journalist who contributed this article to Ars Technica 3 months ago was being sued by the controversial Righthaven, but then Righthaven apparently decided to dismiss it.

What would have made this case stand out from the plethora of other Righthaven-initiated lawsuits? Well, it would’ve been over an article that was actually about Righthaven suing others.

The article, about Righthaven suing the Drudge Report specifically, features a screenshot of the Drudge Report page (actually taken from a court document), which was the subject of the lawsuit. In that screenshot, is an image that Drudge Report used, and was the reason Righthaven was suing them. The image is clearly a significant part of the story itself.

Joe Mullin at PaidContent spoke with Righthaven CEO Steve Gibson about it. He reports:

I asked him pointedly: “Did you sue this reporter because he wrote a story about your company?” Gibson wouldn’t answer that. Noting that the photo in question appeared to be pulled from court records, I asked: “Do you believe reporters have a right to use court documents to report on Righthaven?” Gibson didn’t really answer that one either, saying: “That’s going to be based on facts and circumstances.” He said he disagreed with the premise of my question, and went on to say: “The line of your questioning is so intimate with the issues that are going to be litigated before the court, I don’t feel comfortable having any further discussion on this subject matter with you.”

Righthaven recently lost its second fair use case, when a Judge found that it was ok for a nonprofit to re-use an article in its entirety. As Mullin notes, journalists’ first amendment rights would have probably come into play here. It’s worth noting that the caption to the image, as presented by Gardner, reads: “The photo in question as it appeared on Drudge Report”.

Oy. I’ve just been sued by Righthaven. http://j.mp/hlOfBI 22 hours ago via HootSuite · powered by @socialditto

I’d buy a “I survived Righthaven” t-shirt but won’t for trademark reasons. 1 hour ago via HootSuite · powered by @socialditto

Ars Technica Senior Editor Nate Anderson has a fresh post up about the whole ordeal. He says:

We strongly believe that the use is fair—indeed, that it is almost a paradigmatic case of fair use. A grainy black-and-white copy of a color photo, used to illustrate a news account about said photo, is the reason we have fair use. I had thought I was immune to feelings of surprise after covering these sorts of legal battles for years, but it turns out I still have the capacity to feel shock. The reaction around the Ars newsroom—and from our legal counsel—was absolute bafflement.

And instead of suing Ars Technica directly, Righthaven bizarrely sued freelancer Eriq Gardner, who regularly writes on legal matters for The Hollywood Reporter and who has covered Righthaven for some time. The post in question is the only one Gardner has ever written for Ars.

The result is that we had a New York writer being sued by a Nevada company over a Colorado photo published by a New York-based website. Righthaven claimed “willful” infringement and requested statutory damages, which can reach as high as $150,000 per infringement. In addition, they wanted their legal fees covered. And they wanted “pre- and post-judgment interest.”

Another interesting element to the whole story is that, according to Anderson, Righthaven lawyers told him they dismissed the suit when they realized Gardner was a reporter.

As opposed to a blogger? Good thing there is such a clear difference.

Righthaven Files Suit Against Ars Technica Writer, Quickly Dismisses It
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  • Ken

    Only one mistake? Here are a few more mistakes and screwups by Righthaven:

    Righthaven has sued the very source of a story that was published on the Las Vegas Review Journal.
    They have twice sued the wrong people.

    They have sued the Toronto Star that is an AP affiliate that more than likely had permission from the Denver Post.

    They have managed to actually dilute the copyright protections they claim to “enforce”. It has been ruled fair use that an entire article can be copied in some situations thanks to Righthaven.

    They have yet to win a single case in court apart from some default judgments where the defendant simply never showed up. They have yet to earn a single penny based on the merits of a case but only from strong-arming and intimidating their victims into settling.

    They can’t find two of their defendants and since they could not be served with a court summons the cases were thrown out.

    They had the unmitigated gall to complain to a federal judge that the defendant’s attorneys in the EFF (Electronic Frontier Foundation) were engaged in “litigation overkill” and that their actions were running up legal fees.

    They asked a South Carolina Lawyer to send them advance notice if and when the lawyer files a counter-suit. The SC Lawyer smacked them down by telling them he would give them the same courtesy that Righthaven gave his client when they refused to send a take-down letter before proceeding with a lawsuit.

    Their lawsuits claim they have suffered “irreparable damages” but have yet to identify exactly what these “damages” are.

    They have yet to be awarded a single web-site domain name even though they use this to coerce people into settling and has no basis in copyright law.

    They have sued Brian Hill who they cannot collect from even if they win. (which they won’t)

    They have by far the worst website on the planet that consists only of a single large jpeg image that takes up the entire screen. Apparently this “technology company” has no one who knows how to set up a website.

    Righthaven is the gang who can’t shoot straight. Laughing stock.