Righthaven Sues Reporter For His Article About-A Righthaven Lawsuit

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.”

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