Not content with just suing sources, small out-of-state nonprofits, bloggers who get 20 hits per day, and other massive copyright pirates, newspaper litigation firm Righthaven this week trained its guns on Ars Technica. The company filed a federal lawsuit against one of our freelance writers over a post (about Righthaven) that appeared on the site back in December—only to dismiss it this morning.

Why was the case ever brought? It was (cough) a "clerical mistake."

"Meet my little friend"

The Las Vegas Review Journal helped to launch Righthaven, a separate Las Vegas company that for the last year has sued mostly bloggers, nonprofits, and news outlets for alleged copyright violations of newspaper stories. Some of the suits have merit; many are absurd. Righthaven has secured some settlements, but it's more notable for getting judges to rule that even publishing the complete text of news stories can be fair use.

When the suits started last year, aggravated readers objected to the whole sordid operation, and they expressed that anger to writers at the Review Journal. Columnist Vin Suprymowicz wrote in response:

I don't think I will miss you. I have a far lower opinion of thieves than you appear to have. In fact, watching them copy my columns while interpolating their own content and pretending it's mine, watching them throw small merchants on the verge of bankruptcy by switching price tags and otherwise stealing merchandise below cost, I hate them with a passion. Lawsuits? They should have their godd**ned hands cut off and nailed to the wall of City Hall.

The paper's publisher, Sherman Frederick, likewise warned readers: "I'm asking you nicely once again—don't steal our content. Or, I promise you, you will meet my little friend called Righthaven."

Well, we met him—he lives under a bridge near the edge of town, he has knobby skin and a greenish hue, and he's not actually friendly.

1 out of 200 ain't bad!

This week, Righthaven filed a federal lawsuit (PDF) against Eriq Gardner for a freelance piece he wrote for us back in December. That article, "Copyright troll Righthaven sues for control of Drudge Report domain," described how Righthaven had expanded its work to include suing for papers like the Denver Post, and how it was pursuing The Drudge Report for using a Post photo of a TSA airport pat-down. In recompense for that offense, Righthaven made the astonishing request to be given control of the Drudge Report domain name.

In our article, we reproduced the pat-down photo in question. It wasn't a copy of the original image. 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.

US copyright law allows certain "fair uses" of copyrighted material without consent of the rightsholder; such uses explicitly include "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." Making a final determination relies on a "four-factor test":

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

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.

And instead of suing Ars Technica directly, Righthaven bizarrely sued freelancer Eriq Gardner, who regularly writes on legal matters for The Hollywood Reporter and who has covered Righthaven for some time. The post in question is the only one Gardner has ever written for Ars.

The result is that we had a New York writer being sued by a Nevada company over a Colorado photo published by a New York-based website. Righthaven claimed "willful" infringement and requested statutory damages, which can reach as high as $150,000 per infringement. In addition, they wanted their legal fees covered. And they wanted "pre- and post-judgment interest."

So, after getting the green light from Condé Nast's legal team, I gave Righthaven a call to find out just what was going on here. After waiting on hold for a while, I was put through to Steven Ganim and Shawn Mangano, lawyers for Righthaven, who immediately volunteered the information that the lawsuit had been "dismissed with prejudice" this morning after it "came to our attention" that Gardner was a reporter.

This raised huge, obvious questions. Among them: isn't this the sort of thing one looks into before filing federal lawsuits that request tens of thousands of dollars in damages from journalists reporting on your company?

Confusion

Mangano explained that there had been "confusion" about the exhibits on the complaint. Righthaven has actually sued 25 or 30 people over the same photo recently, and in reviewing all of the documentation on these cases, they determined there was "an internal error" or a "clerical mistake" of some kind that led the reviewers to proceed with the Ars Technica case. The nature of this exhibit "error" remains opaque; I checked the official complaint Righthaven filed with the court, and the exhibits attached to it do in fact show the Ars Technica story with the correct photo. No exhibit confusion was evident.

Mangano said that Righthaven does review all cases before filing them, and he said that the company's track record was great. "We strive for accuracy," he said. "This is the first time in 200+ lawsuits that we have voluntarily dismissed with prejudice."

He offered no apology, though he did chuckle at the absurdity of it all. Ha. What's a little litigation among friends?

And Righthaven is a friend to journalists, it turns out. "We took immediate corrective action" after learning that Righthaven had just sued a reporter, said Mangano. He added that, since reporters make use of copyright and tend to know a good deal about fair use, "It's somewhat counterintuitive to sue a reporter for copyright infringement!"

Which, of course, it is.

Bottom line, in Mangano's view: Righthaven's internal processes are great, one small error was made when filing a big batch of similar cases, and it has been corrected. No harm, no foul.

There's reason for doubt about these incredibly accurate internal processes. Righthaven can't even dismiss cases properly, noting in today's filing that this was a "VOLUNTARY DISMISSAL OF ACTION WITHOUT PREJUDICE" even as the text of the filing read "VOLUNTARY DISMISSAL OF ACTION WITH PREJUDICE." (Dismissing a case with prejudice means it cannot be refiled.)

As this piece was being published, Righthaven refiled the dismissal motion, this time getting it correct.

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.