Monkey See, Monkey Sue... Defendants Ask Judge To Toss Out Ridiculous Monkey Copyright Lawsuit

from the good-going dept

Mon, Nov 9th 2015 6:24am — Mike Masnick

So at the end of September, we wrote about the absolutely insane lawsuit in which PETA -- People for the Ethical Treatment of Animals -- bizarrely claimed to be representing "Naruto" (whose name we only just learned with that lawsuit), as the "copyright holder" of the image below. Naruto, of course, is the macaque monkey who is famous for taking this photo:

Now, we've been writing about this monkey selfie for years now, mostly focusing on why the photo is clearly in the public domain. This issue comes up periodically, with the photographer whose camera "Naruto" used, David Slater, often taking random potshots at Techdirt for explaining basic copyright law to the public. Slater, as you may recall, still likes to insist that he holds the copyright on the photo, and twice has had companies apparently representing himself make dubious legal threats in our general direction.

Still, in a fight between PETA and Slater, we're totally on Slater's side. PETA has even less of a right to the copyright in the photo than Slater -- and Slater has none. Either way, PETA's lawsuit against Slater (along with Blurb, the publishing platform that Slater used to publish a book with the photo) has moved forward with both Slater and Blurb filing motions to dismiss. And given just how ridiculous this lawsuit is, these briefs fit right in. You can tell the lawyers had fun writing these. Slater's motion to dismiss is short and sweet (only 4 pages) and has a truly beautiful opening:

A monkey, an animal-rights organization and a primatologist walk into federal court to sue for infringement of the monkey’s claimed copyright. What seems like the setup for a punchline is really happening. It should not be happening. Under Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004), dismissal of this action is required for lack of standing and failure to state a claim upon which relief can be granted. Monkey see, monkey sue is not good law – at least not in the Ninth Circuit.

Not surprisingly, Slater's lawyer doesn't even get into the whole public domain/copyright question at all. Instead, they just focus on the fact that a monkey has no standing to state a claim, and thus the case should be dismissed:

“[I]f Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should, have said so plainly.” Cetacean Community, 386 F.3d at 1179 (quoting Citizens to End Animal Suffering & Exploitation, Inc. v. New England Aquarium, 836 F. Supp. 45, 49 (D. Mass. 1993)). In Cetacean Community, the Ninth Circuit rejected the notion that non-human animals could have standing under four Acts of Congress, including two that Congress enacted for the protection of animals: the Endangered Species Act and the Marine Mammal Protection Act. 386 F.3d at 1177-78. The standing inquiry for animals under Cetacean Community is very simple: unless Congress has plainly stated that animals have standing to sue, the federal courts will not read any legislation to confer statutory standing to animals. Id. at 1179.

Congress has not plainly stated that non-human animals have standing to sue for copyright infringement. Nothing in Title 17 of the United States Code even hints at that possibility. Indeed, imagining a monkey as the copyright “author” in Title 17 of the United States Code is a farcical journey Dr. Seuss might have written. The “children” of an “author” can inherit certain rights “whether legitimate or not” and that includes “children legally adopted” by the author. See 17 U.S.C. §§ 101, 201, 203 and 304. An author’s “widow or widower owns the author’s entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author’s interest.” § 203(a)(2)(A). Accepting Plaintiff’s standing argument would present the bizarre possibility of protracted family and probate court battles when the offspring of non-human authors scrum over the rights to valuable works.

Meanwhile, the filing from Blurb is four times as long at 16 pages, and goes into a bit more depth, but is basically making the same argument -- and the lawyers can't resist a few monkey jokes of their own. The very first line makes that clear: "This is a copyright case filed on behalf of a monkey." And from there, Blurb makes a few different arguments, including the fact that a photo taken by a monkey cannot receive copyright protection:

As a threshold matter, Naruto lacks Article III standing to invoke the Court’s jurisdiction. Even if Naruto took the Monkey Selfies (a fact contradicted by allegations in the Complaint), he has suffered no injury, much less one that is redressable by this lawsuit. The U.S. Constitution and the Copyright Act contemplate copyright protection only for humans. Accordingly, the action should be dismissed under Rule 12(b)(1) for lack of a justiciable case or controversy.

Dismissal is also appropriate under Rule 12(b)(6) for lack of statutory standing and failure to state a claim. The Copyright Act affords no rights or protections to animals, the courts have repeatedly found that human authorship is required for copyright protection, and the U.S. Copyright Office has outright rejected any assertion that Copyright Act protects “photograph[s] taken by a monkey.” Accordingly, Next Friends cannot establish that Naruto owns a valid copyright, much less that it was infringed by Blurb. The entire Complaint should be dismissed with prejudice.

The Blurb filing also highlights (as some press reports have) that PETA swears that Naruto is a male macaque monkey -- while nearly all reports prior to this (including all explanations from Slater) have been that the monkey is female.

Of course, PETA will hit back on this, but we'll see if the judge lets this monkey business go on for much longer.

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Filed Under: copyright, david slater, monkey, monkey selfie, peta, public domain
Companies: blurb, peta

39 Comments

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TheResidentSkeptic (profile), 9 Nov 2015 @ 5:45am

Absolute proof...
... that we have WAY too many lawyers.
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Anonymous Coward, 9 Nov 2015 @ 6:32am

I laugh every time I see that photo...
I have nothing to add except that I laugh every time I see that photo.
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Anonymous Coward, 9 Nov 2015 @ 6:34am

Just donate some bananas for everyone including monkey, save the brains of rest of us...
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Anonymous Coward, 9 Nov 2015 @ 7:06am

Deranged and Psychologically Damaged
PETA are the most deranged and psychologically & emotionally damaged people on the planet
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Anonymous Coward, 9 Nov 2015 @ 7:10am

That's not Naruto
It's obviously Sasuke. Notice the lack of face paint.
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Anonymous Coward, 9 Nov 2015 @ 7:20am

I doubt PETA actually wants to win this. They're trying to draw attention to the personhood of the monkey, which I think is a very valid thing to do. We do treat animals in horrible ways, and I think its always a good thing when people wake up just a little bit as a culture to animals feelings. PETA could probably care less about copyright, this is an animal rights crusade for them, obviously.

That being said, the monkey has no concept of photography and should not be given copyright. Do we treat the monkey like a delayed shutter button though? If not, why not? Is it because the monkey is a conscious being? What about a baby human who clicks a shutter?

Completely ignoring any current law, I think Slater should own copyright simply because it was his creative process that produced the image and resulted in the click of the shutter. If the law does not allow for that, we should change it. Something along the lines of "whomever presses the shutter, or the next most responsible human in the causal chain which resulted in the pressing of the shutter."
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Anonymous Coward, 9 Nov 2015 @ 7:26am

It's good to see the Rule 12(b)(6) motions, but honestly I hope the Defendants have a Rule 11 motion brewing as well (they have to fulfill the 21 day safe harbor/notice requirement before they can file such a motion).

This is a frivolous lawsuit. There is no colourable argument to file this. Were I to teach a class on ethics and sanctions at a law school, I would have thought something this stupid up as an exam question. These clearly seems to me to violate Rule 11(b)(2):

"By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:... the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law...."

I don't see any nonfrivolous argument to PETA's suit. The attorney that filed it should be ashamed for wasting court time and resources.
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Rich, 9 Nov 2015 @ 7:41am

Re:
The fact that some people abuse animals does not make the animals people.
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That One Guy (profile), 9 Nov 2015 @ 7:43am

Re:
Completely ignoring any current law, I think Slater should own copyright simply because it was his creative process that produced the image and resulted in the click of the shutter.

Not quite, it was actually his carelessness that resulted in the picture being taken. He accidentally left a very valuable camera around a group of curious animals, and he's lucky they didn't smash it to pieces or try and take it apart.

Not everything needs to be owned; just because the monkey doesn't have a valid copyright claim over the picture does not mean it defaults to the nearest human.
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Anonymous Coward, 9 Nov 2015 @ 7:44am

PETA -- People for the Ethical Treatment of Animals -- bizarrely claimed to be representing "Naruto" (whose name we only just learned with that lawsuit)
When did the Weather Channel buy PETA?
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Digitari, 9 Nov 2015 @ 8:22am

this is what happens...
when corporations are considered people...
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Anonymous Coward, 9 Nov 2015 @ 8:27am

Re: (law of unintended consequences)
"I doubt PETA actually wants to win this. They're trying to draw attention to the personhood of the monkey, which I think is a very valid thing to do."

But please think of where animal "personhood" might lead.

For instance, there are no doubt people who would love to receive government sanctification --as well as considerable financial benefits -- for their um, uh, "relationship" with their pets. Just as we've seen homosexuality become transformed from a highly shameful (and generally illegal) sin into a proud (and legally protected) lifestyle in recent years, the same could happen for zoosexuality, which still remains in the closet. If animals were to gain the same rights as humans, then mandatory government recognition of inter-species "marriage" might not be far away.
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Anonymous Coward, 9 Nov 2015 @ 8:34am

Re: Re: (law of unintended consequences)
No. Do not pass go. Do not collect $200.
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blogagog (profile), 9 Nov 2015 @ 9:20am

won't have standing
The funny thing is, the monkey in the photo's actual name is Natikki. Naruto is his monkey brother and is just trying to scam people with this copyright troll scheme.

I spoke with Natikki, and he says to put the photo under GPL.
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Anonymous Coward, 9 Nov 2015 @ 9:28am

The monkey is laughing at PETA.
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Socrates, 9 Nov 2015 @ 10:11am

Collection societies
PETA could probably care less about copyright, this is an animal rights crusade for them, obviously.

Collection societies always have a good "cause". PETA have members that care about animals. But PETA, the organisation, care about surplus money.

Few places on this earth is more dangerous for a pet than a PETA animal shelter. It is more profitable to kill pets immediately than to give care to animals, or to arrange adoption; so PETA kills. Some PETA shelters kill more than 90 percent of animals within 24 hours!

If you need to give your animal to someone, arrange for the adoption yourself, do not give your pet to the killers
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Anonymous Coward, 9 Nov 2015 @ 10:12am

Re:
The attorney that filed it should be ashamed for wasting court time and resources.
The attorneys who filed the complaint were not deterred by FRCP Rule 11.
(c) Sanctions.
(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. . . .
(Emphasis added.)

What is “an appropriate sanction”?

It seems to me that an appropriate sanction ought to deter.
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Anonymous Coward, 9 Nov 2015 @ 10:17am

Re:
They're trying to draw attention to the personhood of the monkey, which I think is a very valid thing to do.

Except that a monkey is not a person. And if they don't actually want to win, then no, it's really not a valid thing to do; it's an abuse of the courts and they should be sanctioned. Courts are already horribly overburdened. Filing a frivolous lawsuit as a publicity stunt should not be tolerated.

Do we treat the monkey like a delayed shutter button though? If not, why not?

The "why not" is because with a delayed shutter button, you have control over the timing, framing, lighting, subject, background, etc. With a monkey, you have control over nothing. You don't know if or when he'll press the button or what direction he'll point the camera if he does.

Is it because the monkey is a conscious being?

No. If, say, your camcorder was accidentally picked up by a tornado, somehow accidentally activated, and took amazing video of the inside of a tornado, you wouldn't have copyright. (Although if you had *intentionally* put it inside the tornado, then you might have copyright.) Or if, say, an automatic bread slicer happens to make a slice of bread that looks like a face, the person operating the bread slicer doesn't get to sue the consumer that finds the slice of bread and sells pictures of it.

I think Slater should own copyright simply because it was his creative process that produced the image and resulted in the click of the shutter. If the law does not allow for that, we should change it.

The problem is that it *wasn't* his creative process; he left the camera and the monkey just took it. Unless he lied about that - but if he did, then he can't then sue people for relying on his statement.
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Anonymous Coward, 9 Nov 2015 @ 10:20am

Re: Re:
Read further into FRCP11 and you'll see that the only sanctions allowed are financial. If you really want deterrence the penalties should include suspension or revocation of their law credential(s).
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Anonymous Coward, 9 Nov 2015 @ 10:25am

Re: Re:
Appropriate sanction is usually attorneys fees and costs along with dismissal.
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Anonymous Coward, 9 Nov 2015 @ 10:27am

Re: Re:

They're trying to draw attention to …
[I]f they don't actually want to win, then no, it's really not a valid thing to do; it's an abuse of the courts and they should be sanctioned. Courts are already horribly overburdened. Filing a frivolous lawsuit as a publicity stunt should not be tolerated.
Can we estimate a dollar value on the publicity that plaintiffs have received from this “stunt”?

If that dollar amount may be reasonably estimated, then I think that treble that dollar value would not be out of line as a potential component of sanctions.
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Anonymous Coward, 9 Nov 2015 @ 10:30am

Re: Re: Re:
Not necessarily. Once you have a Rule 11 sanction awarded against you, it makes you a target for other counsel to cite to the sanction award. So even if the Rule 11 sanction itself is financial in nature, it creates a recorded reputation of malevolence or extreme negligence connected with that attorney.

This in turn can also be cited by Bar discipline committees later when the attorney is actually face with harsher penalties in other situations.
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Oblate (profile), 9 Nov 2015 @ 10:34am

Re: Re:
But it does make some people look like animals, maybe that's where they got confused.
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Anonymous Coward, 9 Nov 2015 @ 11:05am

Re: Re: Re:
Appropriate sanction is usually attorneys fees and costs along with dismissal.
How do fees and costs in this case compare with the price of taking out a full-page ad in, say, the New York Times? It seems likely that the plaintiffs' attorneys made some sort of rational calculation before they decided to buy their advertising from the federal court system.
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Anonymous Coward, 9 Nov 2015 @ 11:09am

Re: Re: Re:
and since only humans are afforded copyright, this means that humans acting like animals also are not afforded copyright.
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Anonymous Coward, 9 Nov 2015 @ 12:55pm

Re: Re: Re: Re:
By "fees and costs" we mean that the Plaintiff's attorney is obligated to pay defense counsel his attorney fees up to that point and whatever court costs were incurred.
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M. Alan Thomas II (profile), 9 Nov 2015 @ 12:59pm

PETA has even less of a right to the copyright in the photo than Slater[...].
It's "even less of a right to a copyright" not "the copyright"; the definite article assumes the existence of a copyright, when none such exists.
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Anonymous Coward, 9 Nov 2015 @ 1:23pm

Re: Re: Re: Re: Re:
By "fees and costs" we mean …
Iow, you're suggesting that in this case, any decision under Rule 11 should merely restate a recovery already allowed by 17 U.S.C. § 505 ?
In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.

That is, you're saying that Rule 11 might as well not exist?
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Anonymous Coward, 9 Nov 2015 @ 2:37pm

Re: Re: Re: Re: Re: Re:
I'm not saying Rule 11 might as well not exist.

17 U.S.C. § 505 an award that is paid by the losing party, not by the losing party's attorney. If PETA loses the case and the Defendants are awarded fees and costs, PETA is responsible for those fees and costs, not their attorney.

Rule 11 is assessed directly against the attorney himself as discipline for filing a frivolous case or filing. If Defendants file a Rule 11 motion and the Court rules in their favor, PETA's attorney is the one responsible to pay Defendants the award.

There are other differences in application. Rule 11 typically comes at different periods of the case. You're most likely going to get confronted with a Rule 11 at the beginning of a case as most people tend to use it with cases that are on their face frivolous. A Rule 11 motion may come later in the case when evidence is unveiled that makes the claims near impossible and the offending party still pushes forward with the suit, but that's rarer.

The end result is that fees and costs through a Rule 11 motion tend to be much smaller than fees and costs associated with 17 U.S.C. § 505. 17 U.S.C. § 505 is an award for a meritorious litigation in general, which means you're usually not going to ask the court for a 17 U.S.C. § 505 award generally until you win at summary judgment or trial, which comes much later. Since it comes later, more fees and costs have accrued. (There are rare cases where a court may sit on a Rule 11 motion, and wait until towards the end to rule, though. But most don't: it's easier on the court's resources to rule on those motions in a timely manner)

The other key difference is what they're intended for. Like I said, Rule 11 is for clearly frivolous cases. Cases that are unlikely to be meritorious, however, or not included in that grouping. Courts have made sure to draw a distinction between weak cases and frivolous cases. A case with the cards stacked against it can still be a permissible filing; a case with virtually no basis in law or fact, on the other hand is not. 17 U.S.C. § 505 is usually associated with actual discussions into the strength or weaknesses of the merits of the case.
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Xuuths, 9 Nov 2015 @ 3:02pm

Re: Re:
It would be one thing if Slater purposely set up a camera for the express purpose of having a random animal touch it, hoping to have it take a photograph. That may be some kind of copyrightable artistic act on the part of Slater.

Leonard Nimoy set up a camera to take photos at random intervals while people did things in his studio (dance, weave, etc.), in the hopes of catching something interesting.

Accidentally leaving your camera and having an animal find it and accidentally take a photo -- completely different thing.
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Anonymous Coward, 9 Nov 2015 @ 3:47pm

Re: Deranged and Psychologically Damaged
I'm fairly sure ISIS or some Dominionists win that one...
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tqk (profile), 9 Nov 2015 @ 4:05pm

Re: Deranged and Psychologically Damaged
PETA are the most deranged and psychologically & emotionally damaged people on the planet

Last I heard, PETA weren't chopping the heads off defenseless noncombatants or blowing up passenger jets or passenger trains, so I'll have to classify your statement as hyperbole, sorry. Perhaps you should ask yourself why you think this statement is even remotely plausible, much less conceivable. You may profit from professional counseling.
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Niall (profile), 9 Nov 2015 @ 4:21pm

Re:
We are still referring to a specific instance of copyright, whether it exists or not, so the definite article is most definitely correct in at least some circumstances.

Besides, PETA's case is that there IS a copyright, and the monkey owns it, so until adjudicated against (or it drops its case), for the purposes of this case there is a putative copyright to be definite about.
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Pixelation, 9 Nov 2015 @ 7:57pm

Give it a patent too...
"A system and method for flinging poo."
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Anonymous Coward, 9 Nov 2015 @ 9:46pm

Re: Re: (law of unintended consequences)
That's absolutely ludicrous. I find the the only people whose minds go in the direction yours has are narcissists with deep seated aberrant predilections.

There's no reasoning with the likes of you; so, in the words of many a great men and women, to you I say, "YOUR MOTHER."
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Mike Brown (profile), 9 Nov 2015 @ 9:55pm

Re: Re: (law of unintended consequences)
This is pretty much the most disgusting comment I've ever read on Techdirt. What colossal ignorance! No one is advocating sex with animals. Gay marriage is a union between consenting adult HUMANS. Animals can't give consent. Humans can.

The point of this whole monkey selfie debacle is that animals don't have the same rights as people. So how about you stick to that, rather than spout your homophobic bilge?
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Anonymous Coward, 9 Nov 2015 @ 11:55pm

Re: Re: Re: (law of unintended consequences)
You're wrong, there are people advocating sex with animals. Sex with dogs, horses, sheep, etc are the subject of a certain class of pornography. Just as there is a class that deals with sex with corpses. There are also groups who are advocating normalising sex with children.

Animals and children are not in the adult consent mindset.

Why do you think there is so much uproar over the above kinds of incidents when they come to light? Because there are people who hold such actions as being NQR while there are others who believe such actions and activities are QAR.

All he/she did was highlight that a significant change has occurred in societal attitudes. If you look back into history, you will find that same-sex sexual interactions, adult-child sexual interactions and human-nonhuman sexual interactions have been significant in parts of various societies anciently (and not so anciently).
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John85851 (profile), 10 Nov 2015 @ 11:45am

Re:
As another poster started to say, but then failed to support: But please think of where animal "personhood" might lead.

Would we extend personhood to cows, chicken, and other animals raised for food? Do they somehow get a say about whether or not they're eaten?

Or does personhood only extend to animals that are similar to us, such as monkeys and gorillas, or to animals that we keep as pets, such as cats and dogs?
When does a pig receive personhood- when it's bred to be eaten or when it's bred to be a pet?

And if dogs and cats can get this personhood, why not snakes and lizards? And will I be charged with mass murder when I kill a colony of ants that's received personhood?

Okay, those last examples are getting absurd, but the point remains: once one animal is treated like a person, where do we stop?
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Spurwing Plover, 28 Jan 2016 @ 8:58am

Stupid lawsuits
PETA idiots have been watching too many animatronic animal movies or have watched crappy movies like Monkey Trouble while od'ed on wacky weed they realy beleive this animal rights poppycock while they themselves still kill around 90% of the animals they have adopted while yammering about Compassion in their stupid protests and sill ads
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