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

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.

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