|Electronic Frontier Foundation
David Makarewicz, Contributing Writer
Righthaven has once again tripped over itself while attempting to use the courts to bully a website.
This time, the target was ARS Technica, who have posted an interesting account of the lawsuit filed by Righthaven against one of its freelance writers, Eriq Gardner. It took less than four days for Righthaven to have to withdraw the copyright infringement suit. A copy of the Complaint can be found here.
Righthaven was forced to drop the case because the photo at issue (displayed above) wasn’t the original image of an overly friendly patdown that was owned by the Denver Post, but rather was the black and white version of the image, which came from Righthaven’s own court filing against Drudge, who subsequently settled.
We strongly believe that the use is fair—indeed, that it is almost a paradigmatic case of fair use. 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.
After ARS contacted attorneys for Righthaven, they did not apologize, but explained that there had been “confusion” about the photo. Righthaven quickly moved for a voluntary dismissal of the case without prejudice (though they messed that up at first and filed a dismissal “with prejudice.”)
ARS blames the media organizations that hire Righthaven even more than Righthaven itself. They write:
It’s easy to blame Righthaven for this farce—and, let’s be clear, we absolutely do—but no one forced venerable papers like the Denver Post to walk this road. Newspapers have been hard hit recently; it’s easy to see why these might cling to anything that might keep them from plunging over the cliff, but this work with Righthaven embarrasses their brands, their missions, and their long history. It’s beneath them. We hope they find a better path back to profitability.
I agree, though I have to blame the lawyers at least a bit because Federal Rule of Civil Procedure 11 requires attorneys to ensure that any document they sign and file in court has evidentiary support and is based on a nonfrivolous legal argument. Clerical “mistakes” such as this can result in sanctions.
Citizen Media Law Project also has a piece explaining the many ways that Righthaven has blundered and bullied its way into weakening the copyright laws that its clients should be trying to strengthen.
David Makarewicz is an attorney practicing internet law concerning privacy rights and copyright defense for websites and blogs. Visit Dave at Sites and Blogs to keep up with breaking Internet news.