Righthaven Files -- Then Withdraws -- Bogus Case Against Journalist

by Wendy Davis, Mar 29, 2011, 6:15 PM

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Lest there was any doubt that copyright enforcement company Righthaven is a little too quick on the trigger, consider the saga of its lawsuit against Ars Technica freelancer Eriq Gardner.

On Friday, Righthaven sued the journalist for an article he wrote in December about Righthaven's lawsuit against Matt Drudge for having posted a Denver Post photo showing a TSA patdown. The Ars Technica article includes a jpeg showing the black-and-white version of Drudge's page -- including the headline and photo --- that was included in the court exhibits to Righthaven's lawsuit.

Today, the outfit withdrew its lawsuit. A Righthaven lawyertold Ars Technica that the lawsuit's filing was the result of a "clerical mistake."

"Isn't this the sort of thing one looks into before filing federal lawsuits that request tens of thousands of dollars [of] damages from journalists reporting on your company?" Ars Technica asks.

Evidently not. Of course, that's not the only oddity about this lawsuit. The case also is unusual because Gardner had such a clear-cut fair-use defense. The allegedly infringing photo actually illustrated a story about a lawsuit concerning the photo itself. Additionally, the image that was published was a copy of an exhibit that Righthaven made part of the public record. News organizations routinely rely on fair use to publish material that would otherwise infringe on copyright -- which Righthaven should know, given its proclaimed mission of saving the newspaper industry..

This lawsuit also was puzzling because Righthaven only sued Gardner and not Conde Nast's Ars Technica or its parent company, Advance Magazine Publishers. Perhaps Righthaven thought that the publisher would be able to claim the Digital Millennium Copyright Act's safe harbor provisions, but those only immunize sites when they store infringing material at the direction of a user. Here, even if Gardner was considered a "user," Ars Technica obviously didn't store the article at his direction.

Righthaven has gotten its share of negative press coverage, but suing journalists for doing their jobs probably isn't the best way to go about changing that. And, even though Righthaven dropped the case, the company looks sloppy and disorganized at best -- hardly traits that will make a good impression on either observers or the judges who are presiding over the company's 250-some lawsuits.

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