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Summary:

Sometimes it seems like Righthaven might run out of targets to sue for copyright infringement, but now it has tapped into a perhaps never-en…

Sometimes it seems like Righthaven might run out of targets to sue for copyright infringement, but now it has tapped into a perhaps never-ending source: journalists covering Righthaven.

Update: Righthaven has dropped this lawsuit, calling it a “clerical mistake.” More details at Ars Technica.

Three months ago, Eriq Gardner wrote a story for the tech news website Ars Technica about a Righthaven lawsuit against the Drudge Report. Righthaven had just begun filing a flurry of lawsuits over a photo of TSA agents performing a pat-down search — the company has now filed dozens of copyright suits over the picture, mostly against small websites and bloggers. Gardner’s story, still available on Ars Technica, includes a grainy, black-and-white photo and the Drudge Report’s “TSA XXX” headline. Including a (low quality) copy of the photo in question, so that readers can evaluate for themselves what type of lawsuits Righthaven is filing, seems like it’s just good reporting. But on Friday, Righthaven sued Gardner over it.

Gardner is a contributing editor for The Hollywood Reporter, and probably best known for his coverage of entertainment industry lawsuits at the THR, Esq. blog. A *Google* search shows that his story about the Righthaven suit is the only story he’s written for Ars Technica, which is owned by Conde Nast. When I spoke with Gardner this morning, he said the claim against him is meritless, but declined to discuss the situation further until he gets legal counsel.

It isn’t entirely clear why Righthaven chose to sue Gardner individually. But arstechnica.com is one of many websites owned by Conde Nast’s parent company, Advance Magazine Publishers, for which it has registered [PDF] a DMCA takedown agent with the U.S. Copyright Office. That probably would have limited Righthaven to merely sending a takedown request to Ars-something it never does.

Righthaven has filed more than 250 lawsuits, but this one seems especially questionable. Using a copyright claim against a photograph used in news reporting-especially when the photo is at the heart of the story-suggests that Righthaven’s business is pushing up against journalists’ First Amendment rights. The photograph was clearly placed in the story so readers could consider the merits of Righthaven’s actions, and it has a caption reading, “The photo in question as it appeared on Drudge Report.” Furthermore, the copy of the photo that Drudge posted is a grainy black-and-white one, despite the fact that crystal-clear copies of the image-originally published in The Denver Post and then on the AP wire service-are widely available. That suggests the photo was copied from Righthaven’s own court filings, which are public documents.

Copyright reformers have long complained that copyright law can be used to squelch free speech. Here, Righthaven is playing into that by suing over an article in Ars Technica, a website that’s been quite critical in its coverage of Righthaven. (The headline on Gardner’s story refers to Righthaven as a “copyright troll,” as do many other Ars stories about Righthaven.) The lawsuit against Drudge that Gardner was reporting on was settled last month, on confidential terms.

I called Righthaven CEO Steve Gibson this morning about the lawsuit, and 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.”

  1. The image the journalist used may very well be from the Righthaven vs Drudge court filing, If that is the case then Righthaven is suing for using a public document. This would have civil rights implications since a lawsuit over the use of public information would cut to the heart of the public’s access to public information.

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  2. Today we find out that it was indeed a court document that Righthaven tried to pass off as their property. Righthaven said they have only made one mistake. One huh? Here are just a few:

    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.

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  3. The thing is Drudge cannot even speak about Righthaven because part of their “confidential” agreement is a permanent gag order. Drudge can never discuss anything about Righthaven. He signed his 1st amendment rights away when he settled.

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