Righthaven Sues Reporter Who Wrote About Righthaven For Including Image From Its Lawsuit

from the righthaven-going-down dept

Tue, Mar 29th 2011 10:35am — Mike Masnick

Wow, is Righthaven really pushing the limit these days. While early on the legal shakedown firm focused on suing unsophisticated blog and forum site owners, it seems to be picking battles lately with those who can fight back... and doing so on extremely shaky legal ground. We noted, for example, its last few lawsuits were against media giants including the Toronto Star and Citadel Communications, both of whom are large enough to employ lawyers who understand fair use and how to present a good fair use defense in court. Even so, in both cases, there was a sliver of a claim that those two uses were not fair use.

However, Righthaven has finally really gone over the edge. It's filed a lawsuit so dumb it makes me wonder if they're not looking to get slammed in court. That's because it's sued reporter Eriq Gardner for infringement for an article he wrote for Ars Technica back in December about Righthaven's lawsuit against the Drudge Report. That lawsuit was about Righthaven's favorite lucky charm: a photo from the Denver Post of a TSA agent patting someone down that has appeared in a whole variety of places.

So, let's just start ticking off the many, many ways in which this was a really clueless move by Righthaven:

First off, Eriq Gardner is unlikely to be a pushover on this topic. While he writes for a few different publications, I believe his main job is writing the Hollywood Reporter's legal blog, THR, Esq., where he covers a ton of copyright stories. This is someone who knows copyright law backwards and forwards.
Second, it's odd that Righthaven is targeting Gardner directly, rather than Ars Technica (owned by Conde Nast). Steve Green (who is the guy to follow on Righthaven stories) over at the Las Vegas Sun suggests the lawsuit targeted Gardner rather than Ars Technica because Ars Technica has a registered DMCA agent. I'm not sure that actually applies here, though. Gardner's article wasn't a user submission/forum post, but a full article that I assume was officially commissioned by Ars. I don't see how going after Gardner directly makes any sense.
The key issue: this is about as cut & dried a case of fair use as there ever was. Gardner was writing about Righthaven, and in the article, to demonstrate what Righthaven was suing about, he showed the image (from Righthaven's own legal filing) that showed Drudge using the image in question. Its use is for news reporting and it's commenting on the image's use in the lawsuit. If this isn't fair use, then fair use doesn't exist.

I mean, this lawsuit is so clearly wrongly targeted, I'm wondering if Gardner can't ask for sanctions against Righthaven for filing it in the first place. Anyway, I've embedded both the legal filing and the exhibit that Righthaven used below, showing a copy of Gardner's article, which used an image from Righthaven's original filing (meta enough for you yet?). Remember, this is a public legal filing that I'm embedding below, and if Righthaven has a problem with it, I'm happy to introduce the company to my lawyers who have a keen understanding of fair use, and probably won't be shy in explaining fair use to Righthaven.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, eriq gardner, fair use, righthaven
Companies: righthaven

52 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

This comment has been flagged by the community. Click here to show it

Anonymous Coward, 29 Mar 2011 @ 10:38am

Wow, righthaven and TSA in the same day. Now you just need a NYT rant and something do with the pirate bay to max out your traffic for that day. WTG Mike!
[ link to this | view in chronology ]
- Chosen Reject (profile), 29 Mar 2011 @ 10:53am
  
  Re:
  Yes Mike, please stop reporting on current events so that you don't appear to the ACs here to be going for maximum traffic. Instead, you should be reporting on old news, making sure that you don't hit too many different topics of old news in a single day. Maybe you should have waited for a slow news day, that way we would know you aren't just trying to maximize traffic instead of just reporting on news.
  
  Could you please do a post on the McKinley Tariff?
  [ link to this | view in chronology ]
  - Anonymous Coward, 29 Mar 2011 @ 11:00am
    
    Re: Re:
    maybe something about that panama canal they are trying to dig?
    [ link to this | view in chronology ]
  - Anonymous Coward, 29 Mar 2011 @ 11:00am
    
    Re: Re:
    I was just thinking that Mike want to expand his horizons a bit. Constantly ragging on the same few groups or organizations seems a bit weird.
    [ link to this | view in chronology ]
    - E. Zachary Knight (profile), 29 Mar 2011 @ 11:07am
      
      Re: Re: Re:
      Well, when those same organizations are doing the same stupid things over and over again, while also doing different stupid things, it is difficult to ignore.
      
      Perhaps if they would stop suing for stupid reasons and actually do something intelligent, Mike would change his tune a bit.
      
      Until then however...
      [ link to this | view in chronology ]
    - Anonymous Coward, 29 Mar 2011 @ 11:08am
      
      Re: Re: Re:
      Speaking of ragging . . . .
      [ link to this | view in chronology ]
    - Anonymous Coward, 29 Mar 2011 @ 11:09am
      
      Re: Re: Re:
      FYI: The world is run by a handful of organisations. How many "big tech" companies do you have? How many car manufacturers do you have? How many parties do you have?
      
      The answer is: A mere handful. And why? Unfair competitive practices, underhand tricks and political "support" ensure that the power will always rest on a small percentage of the population (like, less than 1%). So it's not surprising that we are always seeing the same players on the table.
      [ link to this | view in chronology ]
      - PrometheeFeu (profile), 29 Mar 2011 @ 7:51pm
        
        Re: Re: Re: Re:
        Well that and economies of scale. But let's not let a foolish fact get in the way of your theory.
        [ link to this | view in chronology ]
    - RD, 29 Mar 2011 @ 11:21am
      
      Re: Re: Re:
      "I was just thinking that Mike want to expand his horizons a bit. Constantly ragging on the same few groups or organizations seems a bit weird."
      
      Way to completely and utterly miss the point of not only the various news items posted here, but the ENTIRE reason for the site to exist in the first place. Good job! You win "Clueless Shill Day" at techdirt.
      [ link to this | view in chronology ]
    - Anonymous Coward, 29 Mar 2011 @ 11:56am
      
      Re: Re: Re:
      Next thing you are gonna bitch about news stations repeating the same "Japan crap" over and over....
      [ link to this | view in chronology ]
  - btr1701 (profile), 29 Mar 2011 @ 1:14pm
    
    Re: Re:
    > Could you please do a post on the McKinley Tariff?
    
    Tarriff-tard!
    [ link to this | view in chronology ]
  - Mike Masnick (profile), 29 Mar 2011 @ 4:07pm
    
    Re: Re:
    Yes Mike, please stop reporting on current events so that you don't appear to the ACs here to be going for maximum traffic. Instead, you should be reporting on old news, making sure that you don't hit too many different topics of old news in a single day. Maybe you should have waited for a slow news day, that way we would know you aren't just trying to maximize traffic instead of just reporting on news.
    
    Really funny thing is that last time I posted a story that was a week old, the above AC made a crack about how late I was on the story...
    [ link to this | view in chronology ]
- deadzone (profile), 29 Mar 2011 @ 11:01am
  
  Re:
  I love the fact that Mike gets you so worked up AC. You should cover up as your mask is slipping.
  [ link to this | view in chronology ]
  - Anonymous Coward, 29 Mar 2011 @ 11:17am
    
    Re: Re:
    Mike doesn't get me worked up. What you read as "worked up" is me laughing at Mike, and laughing at people like you for buying into it. It's amusing has hell to watch you all scurry about like ants.
    [ link to this | view in chronology ]
    - The Devil's Coachman (profile), 29 Mar 2011 @ 11:36am
      
      Re: Re: Re:
      It's equally amusing to us "ants" to watch you work yourself into an apoplectic state over every posting. Knowing that you will at some point be likely to have a disabling stroke, leaving you a drooling, bedridden vegetable is vastly amusing to us "ants" too. Of course, the fact that you already are a drooling, bedridden vegetable doesn't leave much room for a significant worsening, but there is always hope.
      [ link to this | view in chronology ]
    - F$&tard follower, 29 Mar 2011 @ 11:37am
      
      Re: Re: Re:
      Actually, what is funny as hell about this site is reading your commentary and pondering how you actually managed to make it through law school, considering how ignorant you prove yourself to be time and time again. I guess they'll give anyone a diploma these days...
      [ link to this | view in chronology ]
- The Devil's Coachman (profile), 29 Mar 2011 @ 11:10am
  
  Re:
  Why don't you just STFU, troll?
  [ link to this | view in chronology ]
- weneedhelp (profile), 29 Mar 2011 @ 11:11am
  
  Re:
  WOW another mindless comment from an AC. How unusual. NOT!
  [ link to this | view in chronology ]
- Anonymous Coward, 29 Mar 2011 @ 11:12am
  
  Re:
  Thank you for admitting that you are incapable of forming a real argument, TAM. It's the first step.
  [ link to this | view in chronology ]
- Chris Rhodes (profile), 29 Mar 2011 @ 11:42am
  
  Re:
  Don't feed the troll, kids. Just hit "Report" and move on.
  [ link to this | view in chronology ]
el_segfaulto (profile), 29 Mar 2011 @ 11:02am

Or some human interest fluff piece? "And that was one day that Mittens the kitten won't soon forget."
[ link to this | view in chronology ]
- :Lobo Santo (profile), 29 Mar 2011 @ 11:03am
  
  Re:
  Kittens give Morbo gas...
  [ link to this | view in chronology ]
  - el_segfaulto (profile), 29 Mar 2011 @ 12:40pm
    
    Re: Re:
    You sir, have just caused me an extra 5 minutes of work cleaning the coffee from my monitors...and I salute you.
    [ link to this | view in chronology ]
John Doe, 29 Mar 2011 @ 11:08am

Let me be the first to yell....
...FIIIIIIGGGGGHHHHHHTTTTTTTTT...

I am sure you will let us know when the legal nastygram arrives.
[ link to this | view in chronology ]
The Devil's Coachman (profile), 29 Mar 2011 @ 11:13am

Anyone who works for RIghthaven is a subhuman POS
And that's their good point. They all need to get a third eye, and soon. Scum of the earth, and deserving of all things horrible that come their way. I hope they all die and burn in hell.
[ link to this | view in chronology ]
- The Devil's Coachman (profile), 29 Mar 2011 @ 11:14am
  
  Re: Anyone who works for RIghthaven is a subhuman POS
  Or am I being too harsh?
  [ link to this | view in chronology ]
  - Anonymous Coward, 29 Mar 2011 @ 11:18am
    
    Re: Re: Anyone who works for RIghthaven is a subhuman POS
    Nahh, for a high school student, you did pretty good.
    [ link to this | view in chronology ]
    - Anonymous Coward, 29 Mar 2011 @ 11:41am
      
      Re: Re: Re: Anyone who works for RIghthaven is a subhuman POS
      Those are some big words for someone who's in kindergarten! Do you have a favorite color?
      [ link to this | view in chronology ]
    - Anonymous Coward, 30 Mar 2011 @ 12:45am
      
      Re: Re: Re: Anyone who works for RIghthaven is a subhuman POS
      LOL really? Fuck, that's pathetic.
      
      Troll harder.
      [ link to this | view in chronology ]
  - Anonymous Coward, 29 Mar 2011 @ 11:18am
    
    Re: Re: Anyone who works for RIghthaven is a subhuman POS
    Scum doesn't deserve to be compared to Righthaven. Scum has feelings too.
    [ link to this | view in chronology ]
  - Planespotter (profile), 29 Mar 2011 @ 11:20am
    
    Re: Re: Anyone who works for RIghthaven is a subhuman POS
    errr.... nope!
    [ link to this | view in chronology ]
Anonymous Coward, 29 Mar 2011 @ 11:30am

More like Wronghaven.
[ link to this | view in chronology ]
pringerX (profile), 29 Mar 2011 @ 11:40am

Perhaps Righthaven is secretly an anti-copyright puppet group set up by some mysterious benefactor with really deep pockets that is trying to establish a set of unfavorable precedents?
[ link to this | view in chronology ]
- Chris Rhodes (profile), 29 Mar 2011 @ 11:43am
  
  Re:
  Seriously. I actually hope they keep filing these ridiculously over-the-top lawsuits so we get some nice decisions on record.
  [ link to this | view in chronology ]
- Atkray (profile), 29 Mar 2011 @ 12:10pm
  
  Re:
  I had the same thought.
  
  Then I thought maybe they really are just that committed to their cause they can't see it rationally. They have become so focused and invested so much time and money that they won't back down even when it becomes clear they cannot win.
  They are going to ride it all the way to the fireball at the end.
  [ link to this | view in chronology ]
  - Anonymous Coward, 29 Mar 2011 @ 2:51pm
    
    Re: Re: I'm sure this is a case of them being paid regardless of what they do....
    Even if you're part of the solution, there's great money to be made in prolonging the problem.....
    
    I think this is more a case of lawyers looking for billable hours regardless of the merits of the case of the chances of success.
    [ link to this | view in chronology ]
Ken, 29 Mar 2011 @ 11:47am

Writer May Have Used a Public Document
What is so noteworthy about this case is that the writer may very well have used the Righthaven vs. DrudgeReport court filing for the image. So in other words Righthaven may be trying to sue someone for using public documents.

If this is the case this has civil rights issues because it cuts to the heart of the publics access to public records.
[ link to this | view in chronology ]
fogbugzd (profile), 29 Mar 2011 @ 12:31pm

>>If this is the case this has civil rights issues because it cuts to the heart of the publics[sic] access to public records.

Civil rights are subservient to copyright and existing business models. Ask anyone in the Obama administration.
[ link to this | view in chronology ]
- Ken, 29 Mar 2011 @ 1:02pm
  
  Re:
  fogbuqzd
  
  I know you are being facetious but not allowing the use of a public document because it may contain copyrighted material would render every public document concerning copyrights unusable because everyone of them contain the work in question as evidence. This would be unworkable and violate the public's right to access public records.
  
  Righthaven cannot win this case and if this lawsuit is over the use of a public document they may face sanctions from the judge and have opened themselves up to all sorts of counter suits not just from this writer but civil rights and other organizations.
  
  This strikes me as an act of desperation on Righthaven's part.
  [ link to this | view in chronology ]
This comment has been flagged by the community. Click here to show it

Steven Gibson, 29 Mar 2011 @ 12:59pm

Pwn3d
Steven Gibson's personal account (email, cable internet and home phones) was pwn3d recently. He specified mandible2@cox.net as a contact address in righthaven.com DNS registration. So... members.cox.net/mandible2 (WARNING! NSFW), and be careful: the X-rated image on the page is copyrighted!
[ link to this | view in chronology ]
- Anonymous Coward, 29 Mar 2011 @ 1:06pm
  
  Re: Pwn3d
  Does this mean someone hacked teh Gibson?
  [ link to this | view in chronology ]
  - This comment has been flagged by the community. Click here to show it
    
    Steven Gibson, 29 Mar 2011 @ 1:19pm
    
    Re: Re: Pwn3d
    Date: Thu, 12 Oct 2006 19:54:16 -0700
    From:
    To: mmccue@lrlaw.com
    Subject: Swinger Events
    Cc: gibson@lbbslaw.com, mberg@lbbslaw.com, rgibson@lbbslaw.com
    
    We understand that the event to begin tomorrow previously scheduled to be held at Mandalay Bay may now be scheduled to be held at MGM. Please call me to discuss: 499-3791.
    [ link to this | view in chronology ]
  - This comment has been flagged by the community. Click here to show it
    
    Steven Gibson, 29 Mar 2011 @ 1:34pm
    
    Re: Re: Pwn3d
    702-541-6300 Righthaven
    702-527-5900 Righthaven
    702-527-5909 Righthaven fax
    702-869-0660 Home
    702-445-6909 Home 2 (fax?)
    702-499-4966 Cell
    702-334-7402 (Cell?)
    
    7278 Silver Charm Ct Las Vegas NV 89131-4129
    
    The Vermin Swarm:
    
    Joseph Chu jchu@righthaven.com
    Charles Coons ccoons@righthaven.com
    jcoons@righthaven.com,
    Raisha Gibson rgibson@righthaven.com,
    iodunze@righthaven.com,
    apieroni@righthaven.com,
    Steven Ganim sganim@righthaven.com
    Shawn A Mangano shawn@manganolaw.com 702-638-4788, 702-304-0432 office, 702-922-3851 fax
    Jodi Donetta Lowry jdlowry@dickinsonwrite.com 702-541-7891 office, 702-541-5899 fax, 702-767-4087 personal or cell
    [ link to this | view in chronology ]
- Mike Masnick (profile), 29 Mar 2011 @ 1:28pm
  
  Re: Pwn3d
  Impersonating Gibson is really, really dumb. Stooping below the level of what he's doing is pretty obnoxious. Please don't post crap like this on our site.
  [ link to this | view in chronology ]
  - Anonymous Coward, 29 Mar 2011 @ 1:37pm
    
    Re: Re: Pwn3d
    yes it is stupid, please delete these comments.
    [ link to this | view in chronology ]
Anonymous Coward, 29 Mar 2011 @ 1:56pm

UPDATE
Righthaven has voluntarily dismissed the lawsuit with prejudice:

http://arstechnica.com/tech-policy/news/2011/03/copyright-troll-righthavens-epic-blund er-a-lawsuit-targeting-ars.ars
[ link to this | view in chronology ]
- Ken, 29 Mar 2011 @ 2:36pm
  
  Re: UPDATE
  This is what you get when you sue first and ask questions later. Righthaven is now officially a discredited laughing stock.
  [ link to this | view in chronology ]
Ken Bingham, 29 Mar 2011 @ 5:56pm

Contact Colorado Federal Court
Call the Colorado Federal District Court and ask them to apply rule 11 on Righthaven and apply sanctions for filing a false lawsuit.

Clerk's Office
Alfred A. Arraj United States Courthouse, Room A105
901 19th Street
Denver, Colorado 80294-3589
Civil Division: (303) 844-3433
Criminal Division: (303) 844-2115
[ link to this | view in chronology ]
- Anonymous Coward, 29 Mar 2011 @ 6:38pm
  
  Re: Contact Colorado Federal Court
  Ken,
  
  Courthouses don't decide what to do because folks phone them with suggestions. I'm curious, though. What precisely did Righthaven do that warrants sanction? Gardner has a great defense, but it's just that, a defense. The lawsuit was not frivolous.
  [ link to this | view in chronology ]
  - Ken, 29 Mar 2011 @ 7:20pm
    
    Re: Re: Contact Colorado Federal Court
    http://www.law.cornell.edu/rules/frcp/Rule11.htm
    
    "With Rule 11 Federal Rules of Civil Procedure
    
    (b3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
    
    (3) On the Court's Initiative.
    
    On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b)."
    
    The court can impose sanctions against a party on their own initiative if Rule 11(b) has been violated.
    
    This lawsuit was frivolous because it was based entirely on faulty and unverified evidence. Rigthhaven filed a lawsuit based on an court document that was so obvious we were discussing it yesterday on the Las Vegas Sun comments. It is absurd to think Righthaven didn't recognize this as a court filing particularly since it was their own.
    
    The court needs to slap them with sanctions and review every case they have filed including the ones they received settlements to verify if a lawsuits were even warranted.
    [ link to this | view in chronology ]
    - Anonymous Coward, 30 Mar 2011 @ 6:10am
      
      Re: Re: Re: Contact Colorado Federal Court
      Yes, Ken, a court may impose sanctions. What courts don't do, though, is base their decisions on what random people request over the phone. No sanctions will happen in this case. You're delusional. Frivolous is a term of art, meaning, there are legal criteria for whether a lawsuit is frivolous. Just because you're angry and you hate Righthaven doesn't mean any of their suits are frivolous. Even if Righthaven knew where Gardner got the image from, that doesn't make the lawsuit frivolous. You really sound like a kook. I can't imagine even for one second that any of your anti-Righthaven advocacy is actually helping anyone. It doesn't help that you have no idea what you're talking about.
      [ link to this | view in chronology ]
Ken, 29 Mar 2011 @ 6:15pm

Righthaven's List of Other Screwups
Righthaven says they have only made one mistake? Oh 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.
[ link to this | view in chronology ]