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".
I'd buy a "I survived Righthaven" t-shirt but won't for trademark reasons.
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.