Lawsuit against reporter reveals Righthaven’s sketchy tactics

Righthaven, the so-called “copyright enforcement” company which questionably obtains and defends copyrights on articles and images for American newspaper mogul Stephens Media, is at it again. This time, the trolls have targeted a freelance writer for Ars Technica for alleged misuse of a photograph in a story about Righthaven suing the Drudge Report.

The writer, Eriq Gardner, was singled out (Ars wasn’t even named as a defendant) and accused of “willful infringement” for using a reproduction of an image that was at the center of a Righthaven lawsuit already in progress. That case was seeking control of the Drudge Report domain because they had directly linked to a photo on the Las Vegas Review-Journal website.

“In our article, we reproduced the [TSA] pat-down photo in question. It wasn’t a copy of the original image,” explains Ars reporter Nate Anderson in an article about the litigation. “No, our reproduction came from Righthaven’s own court filing against The Drudge Report. It was a grainy black-and-white image from the court documents, which in turn had copied the image from Drudge, which in turn had (allegedly) copied it from the Post.”

“We strongly believe that the use is fair—indeed, that it is almost a paradigmatic case of fair use,” Anderson continues. “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.”

It’s unclear why Righthaven would choose to sue Gardner individually while leaving Ars Technica out, however the company does have a track record of going after very small organizations and individuals who would likely not have the monetary resources to fight. Also, as reporter Joe Mullin points out, dealing directly with Ars would have limited the action to a DMCA takedown notice rather than litigation seeking a cash award.

Righthaven has now dismissed the lawsuit against Gardner, claiming that a “clerical error” was to blame for the bizarre situation, but the fact that it ever happened in the first place brings up even more serious questions about the tactics Righthaven uses to protect their interests.

Anderson spoke with Righthaven lawyer Shawn Mangano about the incident and, unsurprisingly, there was no apology for the error.

“We took immediate corrective action” Mangano told Anderson. “It’s somewhat counterintuitive to sue a reporter for copyright infringement!”

There has to be a way to protect newspaper content without stooping to bullying bloggers with threats of $100,000+ fines. Righthaven will screw up again, and maybe next time it will be big enough to force them to change their ways.