TechCrunch sued by Earthcomber, ethical questions

Earthcomber, a location focused applications provider has filed suit against TechCrunch, Interserve and Loopt over patent infringement.

The core of the complaint started with a charge against Loopt over similar services, and TechCrunch was a late addition to the suit. Michael Arrington is claiming that the charge is guilt only by association, as TechCrunch is nothing more than a “search filter” in Loopt. But Earthcomber argues otherwise, noting that the relationship goes beyond that (something not mentioned at all by Arrington) and that Loopt and TechCrunch offer a joint application called Loopt TC, and that TechCrunch’s involvement in offering that application, complete with their name on it, means that they are a party to the patent infringement taking place.

I’m not a lawyer, but certainly the divide between simply guilt by association, and co-branded service is an interesting difference in the stories, but whether that is enough for a successful lawsuit I couldn’t say. But the back story to this point gets more interesting again, because it turns out that TechCrunch publicly attacked Earthcomber despite their relationship with Loopt when the lawsuit was first filed, and prior to TechCrunch being named on it.

The LA Times notes that the post from Mark Hendrickson included calling the suit “a desperate attempt to get the company some attention,” and originally described the lawsuit as “rather absurd,” but that line was later removed. The post does disclose the relationship with Loopt, and actually notes that the relationship IS MORE than what Arrington is saying in the new post, using the words “co-branded community” to describe the relationship.

The big question then becomes one of ethics: is it ethical to write a hit post on a company suing a company you’re in a business relationship with, even with the disclosure.

I don’t believe it is, but with the following points.

Not once during my time at TechCrunch do I recall being asked to write a hit post (by hit post I mean takedown, hit as in the organized crime etc.). I’m not saying that this isn’t the case here, and I always had one advantage: I wasn’t there. I never had Michael yelling stuff at me during the day. Certainly I was forwarded stuff I should consider writing about, but I was never asked straight out to write that sort of post. It’s not inconceivable that Mark could have written that post without Michael’s prompting, and the disclosure was added by Michael after the fact to cover them. But then again, I’d be surprised if this was the sort of post Mark would have done without prompting, and even if it was, it is the sort of post he probably would have run by Michael anyway. Mark’s a great guy, so I do want to say upfront that I’m not pointing the finger at him. When he eventually escapes there, and if he pursues blogging as a career, I wouldn’t think twice about hiring him if I could afford to do so (of course at the moment, I’m not even close).

We were however always aware of who our friends were, and who our enemies were at TechCrunch. For me, that did take some time (again, because I wasn’t there), and early on I wrote attack posts on people Michael wished I hadn’t, and I recall him using the fact as evidence that TechCrunch doesn’t play sides on stories. That didn’t last though, because it was always made clear who the good guys were, and who the bad guys were. That it wasn’t written down as editorial policy is irrelevant, and if we got it wrong it was regularly corrected; and can I tell you there’s nothing more special in the world than waking up to find yourself being attacked for overly positive words in a post with your name on it, that you didn’t write.