Playboy Sues BoingBoing For Linking To Collection Of Centerfold Pictures

from the really-now? dept

Thu, Nov 9th 2017 12:06pm — Mike Masnick

Playboy apparently has lawyers with itchy trigger fingers. As first spotted by Law360, Playboy Entertainment Group has sued the BoingBoing, the popular and awesome blog that covers a variety of issues around culture and technology. The case is technically against the company that owns BoingBoing, called Happy Mutants LLC. Law360 claims the lawsuit claims that BoingBoing "stole every centerfold ever." But... that's not at all what the lawsuit says.

It appears that the issue is this blog post from February of 2016, written by one of BoingBoing's core writers, Xeni Jardin. Here's a screenshot of the post from the lawsuit:

As you can see, it's a blog post titled "Every Playboy Playmate Centerfold Ever." There's a very short paragraph that reads:

Some wonderful person uploaded scans of every Playboy Playmate centerfold to imgur. It's an amazing collection, whether your interests are prurient or lofty. Kind of amazing to see how our standards of hotness, and the art of commercial erotic photography, have changed over time.

And then it links to the Imgur page. Beneath that, it links to and embeds a YouTube video that apparently contains the same 746 images. Both the reddit collection and the YouTube video are missing now. Any sane and competent lawyer would recognize that this is BoingBoing reporting on and commenting on the existence of this collection. But not Playboy's lawyers from the law firm of Doniger / Burroughs, which describes itself, laughably, as "California's premier fashion, art, entertainment and technology law boutique." To those lawyers, BoingBoing, by writing about these collections, is magically responsible for them. No amount of pointless and excessive legalese employed by these lawyers can hide just how dumb and misguided this lawsuit is:

Plaintiff PLAYBOY owns 477 original photographs commonly referred to as Playboy Centerfolds (“Subject Works”) that have been registered with the United States Copyright Office. Attached hereto as Exhibit A is a chart listing the 477 Subject Works.

Plaintiff is informed and believes and thereon alleges that following PLAYBOY’s publication of the Subject Works, Defendants, and each of them used the Subject Works without Plaintiff’s authorization for commercial purposes on its website, including, but not limited to, their use in articles and advertising.

Plaintiff is informed and believes and thereon alleges that one such use of the Subject Works by Defendants, and each of them, was an article from February 29, 2016 touting the availability of “Every Playboy Playmate Centerfold Ever” for viewing or download without Plaintiff’s authorization, as shown below

Reporting on such a collection is clearly fair use. BoingBoing wasn't distributing the files. It wasn't hosting the files. It wasn't copying the files. It was just reporting on the existence of them (and saying nice things about them). And while Playboy may have a perfectly legitimate copyright claim against whoever uploaded all of the images to Imgur, it's ridiculous to argue that BoingBoing writing about the collection was infringing, or that it would harm Playboy in any way, shape or form.

Frankly, this feels like yet another pure SLAPP suit, and is yet another reminder of why we need a federal anti-SLAPP law. Even though this is filed in California, it's unlikely that California's anti-SLAPP law would apply, since the claims are copyright claims, which are federal, and state anti-SLAPP laws only cover state law based claims. Thankfully, copyright law does enable fee shifting for questionable lawsuits, and this one seems ripe for fee shifting. Again, Playboy seems to be going after the entirely wrong target here. And while it can even be argued that it's dumb for Playboy to go after someone uploading the collection elsewhere, arguing that BoingBoing is responsible, merely for writing about the collection and linking to it, is pure nonsense.

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Filed Under: centerfolds, copyright, fair use, linking
Companies: boingboing, happy mutants, playboy

46 Comments

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Nick-B, 9 Nov 2017 @ 12:21pm

Linking?
This is more of that "linking to copyright infringement is theft" argument. Technically, couldn't they be liable for "enabling" or "encouraging" copyright infringement by pointing out an illegal source?
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- Anonymous Coward, 9 Nov 2017 @ 12:59pm
  
  Re: Linking?
  What does this "linking is a crime" thing do to the "If You See Something, Say Something" rat out your neighbor effort?
  
  They look to be very similar with different desired outcomes, why is that? I like consistent and predictable - when possible.
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- DannyB (profile), 9 Nov 2017 @ 1:37pm
  
  Re: Linking?
  The lesson: link to copyright infringement more quietly. Even if you are not the copyright infringer, and don't intend to commit any actual infringement or downloading.
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Anonymous Coward, 9 Nov 2017 @ 12:40pm

Whats the betting that the uploader and YouTuber have no money, leaving BoinBoing as the only ones who have the ability to pay to make the suite go away.
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- Anonymous Coward, 9 Nov 2017 @ 12:56pm
  
  Re:
  No, just a copyright bully looking for the smallest kid on the playground.
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- Anonymous Coward, 9 Nov 2017 @ 1:00pm
  
  Re:
  Third party liability
  [ link to this | view in chronology ]
Anonymous Coward, 9 Nov 2017 @ 12:59pm

BoingBoing was stupid for linking directly to the copyright-infringing material in their news article instead of air-gapping it. Sites like Torrentfreak that regularly report on early leaks and other unauthorized releases of copyrighted content learned ages ago that linking directly (or even indirectly) to infringing content is essentially asking to be sued.

Whether or not the inclusion of URL links has actual legal significance, most everyone knows that it crosses the proverbial "line in the sand" that frequently causes copyright owners to unleash their attorneys.
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- Anonymous Coward, 9 Nov 2017 @ 1:07pm
  
  Re:
  Companies should link directly more. It needs to be so commonplace that there is precedent all over the place and these stupid suits get shut down earlier and earlier. Stopping linking to it directly preemptively gives them what they want.
  [ link to this | view in chronology ]
  - Anonymous Coward, 9 Nov 2017 @ 2:12pm
    
    Re: Re:
    In that case news sites will just end up getting sued more often. Since lawsuits are generally "won" by the side with the most money, it does not look good for a small company like BoingBoing even if the law is on its side. Even if BoingBoing ends up winning in court while going bankrupt in the process and forced to close down, then it's obviously an empty victory. Few people want to become martyrs for a cause.
    
    To name one example, didn't it cost Google $100 million to defeat viacom's lawsuit, a cost that could have easily doubled if it went all the way to trial?
    
    https://techcrunch.com/2010/07/15/google-viacom-100-million-lawsuit/
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- Anonymous Coward, 9 Nov 2017 @ 1:07pm
  
  Re:
  You’ve just described the “chilling effect” you get a silver star. To go for the gold, describe in one paragraph why this is a bad thing.
  [ link to this | view in chronology ]
- Machin Shin, 9 Nov 2017 @ 1:16pm
  
  Re:
  "most everyone knows that it crosses the proverbial "line in the sand" that frequently causes copyright owners to unleash their attorneys."
  
  That is why more people should post links. Then take the legal filings, roll them up and smack the attorneys nose so we can train them to quit pissing all over everywhere.
  [ link to this | view in chronology ]
  - Anonymous Coward, 9 Nov 2017 @ 2:35pm
    
    Re: Re:
    The "safety in numbers" theory tends not to work in practice. That was an idea that people frequently talked about in the Kazaa file sharing era, that (1.) the record industry can't possibly sue everyone, and (2.) even if they do, they can't possibly afford the massive legal expenses of running so many court cases when people fight back. But in reality, only two people ever fought back, while tens of thousands caved in and paid a $3000+ extortionary "settlement" under fear that fighting back could leave them broke and destitute.
    [ link to this | view in chronology ]
- Anonymous Coward, 9 Nov 2017 @ 2:54pm
  
  Re:
  
  BoingBoing was stupid for linking directly to the copyright-infringing material in their news article instead of air-gapping it.
  
  Why do you accept that it's infringing? There hasn't yet been a trial to determine fair use, on the part of BoingBoing or the site they linked to. Note BoingBoing's quote: "Kind of amazing to see how our standards of hotness, and the art of commercial erotic photography, have changed over time"—that's a classic example for why fair use exists. They're reporting news about a project with clear value to researchers of social history, to photographers, and to members of society in general.
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- Anonymous Coward, 9 Nov 2017 @ 3:07pm
  
  Re:
  I'm not sure where this line is or even what beach it is located upon. For example, that guy who posted video of wild birds that he had recorded on his personal recording device ... only to have it taken down due to "infringement".
  
  I'm not even sure what infringement actually means to the people who make these claims because that video had no music but did have a bird singing .. was supposedly reviewed by a real human - and they claim someone has copyright on nature?
  
  Wow
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Vic, 9 Nov 2017 @ 2:01pm

Responsibility
Well, we know that Google is responsible for every search result there is. So, by that logic Boing Boing is responsible too.

Side note - remind Playboy to also file a suit against Google!
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Anonymous Coward, 9 Nov 2017 @ 3:36pm

Distribution
Paragraph 14 of the complaint alleges that
1. . . . Defendants, and each of them, . . . distributed images of the Subject Works . . .
The word “distributed” appears to implicate the 17 USC § 106(3) distribution right—

to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

Both “copies” and “phonorecords” are terms defined in 17 USC § 101—

“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

Setting aside the definition of phonorecords as inapplicable here, notice especially that “ ‘copies’ are material objects…”. Thus, in § 106(3), the most natural reading of the statute grants the copyright owner the exclusive right to distribution of “material objects”.
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tp, 9 Nov 2017 @ 3:37pm

BoingBoing clearly wrong
If boingboing linked these works to their own web site, then it's clearly copyright infringement. This "linking" only is clearly violation of exclusive DISPLAY property of copyrights. Note that it doesn't matter if they actually host the files. What matters is that their web page DISPLAYS those infringing files. Any service that displays infringing works is by default violation of copyrights and can possibly be sued for copyright infringement, if the authors of the material happen to find it.

Note that in case they "included" those files as part of their web page using any means (linking, embedding or other such means), then their only valid defense is that they somehow obtained license to display those files. If license doesnt exist, they can be sued.
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- Anonymous Coward, 9 Nov 2017 @ 3:49pm
  
  Re: BoingBoing clearly wrong
  Based on your crackerjack law degree no doubt this all made sense to you. In the real world, nothing that you posted is even close to true.
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- Anonymous Coward, 9 Nov 2017 @ 3:51pm
  
  Re: BoingBoing clearly wrong
  
  exclusive DISPLAY
  
  Where does the complaint say “display”?
  
  I just searched the complaint for the term “display”, and didn't find it.
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  - tp, 9 Nov 2017 @ 4:10pm
    
    Re: Re: BoingBoing clearly wrong
    > Where does the complaint say “display”?
    > I just searched the complaint for the term “display”, and > didn't find it.
    
    It doesnt. You need to look at what _actually happened_, based on the information available, and then it allows you to decide which copyright principles are being ignored by each party of the lawsuit. Noone cares what their paperwork is saying. What actually is happening is what you should focus your efforts to, not on party's theory of how far they can stretch the law.
    
    Focus on the actual stuff happening, not the legal theories.
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    - Anonymous Coward, 9 Nov 2017 @ 4:13pm
      
      Re: Re: Re: BoingBoing clearly wrong
      
      Noone cares what their paperwork is saying.
      
      On a motion to dismiss for failure to state a claim, the court is confined to the four corners of the complaint.
      
      The judge sure cares what the paperwork says.
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      - tp, 9 Nov 2017 @ 4:52pm
        
        Re: Re: Re: Re: BoingBoing clearly wrong
        > The judge sure cares what the paperwork says.
        
        The whole reason why the paperwork exists, is to explain what is _actually happening_, and not try to boast your legal theories of who is to blame. The whole legal jargon is designed to keep the theories accurate... This is why lawyers are usually writing those papers, so that position of each side is known.
        
        That's what the judge wants to know -- what actions actually happened. Sometimes finding out what happened is more difficult than it should be.
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        Anonymous Coward, 10 Nov 2017 @ 12:22pm
        
        Re: Re: Re: Re: Re: BoingBoing clearly wrong
        
        The whole reason why the paperwork exists, is to explain what is _actually happening_
        
        Plaintiff walks into court, and sez, “Look here, I gotta complaint 'bout the way this kingdom's getting run. Arthur, m'lord, the frumious Bandersnatch is running amok…” blah, blah, blah, ”… and anyways, you gotta order him, or her, or it —being the aforesaid frumious Bandsnatch— to pay me. And if he, or she, or it, doesn't pay for all the damage, then you gotta order Galahad or some other brave chap to go into the tulgey wood and snicker-snack the damn thing with the vorpal sword.”
        
        And Arthur is going, “Hmmm, well, I see you've gotten the cleric to scribble your story down. But tell me —even if everything you say is exactly true, just precisely the way the cleric scribbled it down— —and I do believe you, good sir— all the same, is it really the law in this here aforesaid kingdom here that the frumious Bandersnatch has to pay up?”
        
        That's what's really happening in the inital stage of the proceedings, on a 12(b)(6) motion before the said frumious Bandersnatch has to answer the complaint.
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    - Anonymous Coward, 9 Nov 2017 @ 4:30pm
      
      Re: Re: Re: BoingBoing clearly wrong
      Sorry to tell you, but despite how much you hate it, fair use is not a legal theory.
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- Anonymous Coward, 9 Nov 2017 @ 4:27pm
  
  Re: BoingBoing clearly wrong
  It's cool how you managed to write so much and get literally nothing correct.
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- Anonymous Coward, 9 Nov 2017 @ 4:58pm
  
  Re: BoingBoing clearly wrong
  Are you a lawyer?
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- Mike Masnick (profile), 9 Nov 2017 @ 5:46pm
  
  Re: BoingBoing clearly wrong
  You don't seem to know very much about copyright law.
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  - Anonymous Coward, 9 Nov 2017 @ 7:45pm
    
    Re: Re: BoingBoing clearly wrong
    It's the same guy who thinks that the expiration of copyright means that an author is then allowed to destroy all copies of the non-copyrighted work all over the planet, no matter who owns it and whether the ownership is legal or otherwise, to make way for new things with a price tag. He also believes that copyright enforcement is the only method through which artists and creators can remove content from the global consciousness that they feel embarrassed about.
    
    What else did we expect from Mr. I-Hate-Fair-Use?
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- Gary (profile), 9 Nov 2017 @ 6:57pm
  
  Re: BoingBoing clearly wrong
  At no point did the BoingBoing website show these images. Reading the article did not "display" the archive or the pictures.
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  - tp, 9 Nov 2017 @ 11:17pm
    
    Re: Re: BoingBoing clearly wrong
    > At no point did the BoingBoing website show these images.
    
    Somehow the lawsuit's main idea still is that the boingboing published the location of the infringing material?
    
    > Reading the article did not "display" the archive or the pictures.
    
    This "display" happened indirectly, i.e. boingboing somehow published the location of the infringing pics they found from the internet?
    
    Usually if you find illegal material on internet, you're not supposed to reveal the location of the material, especially if it's copyright problem. Linking to it is already problematic.
    
    And if boingboing is some blog, they should know the rules of which kind of material can be disclosed to your readership...
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    - Steven (profile), 10 Nov 2017 @ 11:45am
      
      Re: Re: Re: BoingBoing clearly wrong
      You're clearly wrong. Linking i.e. publishing the location to something, is not illegal.
      
      That's like saying if I make a blog post saying "There's a crack house at 123 Overthere St." I'm now a crack dealer and should go to jail.
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      - tp, 10 Nov 2017 @ 12:02pm
        
        Re: Re: Re: Re: BoingBoing clearly wrong
        > You're clearly wrong. Linking i.e. publishing the location to something, is not illegal.
        
        Of course it is illegal. It's called illegal scope extension. Otherwise you can do these operations:
        1) hiddenly build illegal stash of copyrighted material
        2) hide the identity of people who collected the material
        3) build a web site to profit off someone elses work
        4) link all users of your web site to the illegal material
        
        Clearly, all parts of this pattern are illegal operations, including the operations that attract pirates to your illegal stash of copyrighted content.
        
        The real trick which makes illegality (of linking) clear, comes from the exclusive DISPLAY property of copyrighted content -- whenever your web site _is able to display_ the illegal material, then the linking is already illegal. Ability to display such link in a browser _also makes browsers illegal_.
        
        In this case, boingboing even adverticed the availability of the illegal material in their web page, i.e- completed the steps (3), (4) sections of the illegal pattern for linking purposes.
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        Steven (profile), 10 Nov 2017 @ 12:28pm
        
        Re: Re: Re: Re: Re: BoingBoing clearly wrong
        Oh no! You've committed illegal crime explanation!
        
        Of course describing how a crime is committed is illegal. If it wasn't you could:
        1) Hiddenly plan out a crime.
        2) Anonymously tell people how to commit the crime
        3) ??
        4) Profit!
        
        Clearly all parts of this are illegal. The real trick from from this thing called KNOWLEDGE. You see speaking transfers KNOWLEDGE which is bad, thankfully you clearly lack it.
        
        See I can make up crap too.
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        tp, 10 Nov 2017 @ 12:47pm
        
        Re: Re: Re: Re: Re: Re: BoingBoing clearly wrong
        > You see speaking transfers KNOWLEDGE
        
        Happily we didn't use speaking.
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      - MyNameHere (profile), 10 Nov 2017 @ 12:49pm
        
        Re: Re: Re: Re: BoingBoing clearly wrong
        Sorry, but I think you are wrong here.
        
        BoingBoing's intent is to profit from a clear copyright violation. They know the source (scanned images put on imgur, not Playboy), and they link to it because people will want to see the images and will also spend more time on BoingBoing.
        
        They should knowledge and intent.
        
        You are confusing the idea of publishing a story "some guy scanned all of the playboy centerfolds and illegal put them online" versus "here they are".
        
        The story of the guy doing it wouldn't get them many readers. Linking to the images and making them the story itself, hoping people will share the story on social media and drive more users to Boingboing will.
        
        The really, really big ad next to the story shows intent to profit from it. It's not hard to figure out.
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        Anonymous Coward, 10 Nov 2017 @ 4:55pm
        
        Re: Re: Re: Re: Re: BoingBoing clearly wrong
        Aw, look. The "fair use is a novel legal theory" lovebirds are congregating. Isn't that sickeningly sweet?
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    - Anonymous Coward, 12 Nov 2017 @ 6:52pm
      
      Re: Re: Re: BoingBoing clearly wrong
      Exactly WHAT caselaw supports the idea of 'if you find illegal material you are not supposed to reveal the location'?
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      - Anonymous Coward, 13 Nov 2017 @ 12:30pm
        
        Re: Re: Re: Re: BoingBoing clearly wrong
        Not exactly case law, but rather the law according the the MPAA/RIAA.
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        Rhydamman (profile), 20 Jan 2018 @ 9:53am
        
        Re: Re: Re: Re: Re: BoingBoing clearly wrong
        Copyright law according to the MPAA/RIAA? What you get there is what they would like copyright law to be. That's like looking at gun law according to the NRA, or laws regulating natural dietary supplements according to the pharmaceutical industry.
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  - Anonymous Coward, 10 Nov 2017 @ 7:28am
    
    Re: Re: BoingBoing clearly wrong
    I do wonder if there's any legal precedence for whether embedding someone else's video counts as showing it.
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- Reverend Dak (profile), 9 Nov 2017 @ 7:06pm
  
  Re: BoingBoing clearly wrong
  Wait? You read Techdirt, and you don't know that you're totally wrong? Techdirt articles are almost always about digital rights. Did you even read this article, because it explains why you're wrong.
  [ link to this | view in chronology ]
  - tp, 9 Nov 2017 @ 11:07pm
    
    Re: Re: BoingBoing clearly wrong
    > Wait? You read Techdirt, and you don't know that you're totally wrong?
    
    You didn't know that internet is always wrong?
    
    > Techdirt articles are almost always about digital rights.
    
    Yes, except most of the articles are about trying to expand the scope of the legal area to places which are not exactly legal.
    
    > Did you even read this article, because it explains why you're wrong.
    
    Was there some article? I was just watching the nude pics...
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    - Anonymous Coward, 12 Nov 2017 @ 12:12am
      
      Re: Re: Re: BoingBoing clearly wrong
      Thanks for once again proving what we've known all along: you don't have a shred of legal knowledge beyond what you fervently hope it says.
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- D Higgs (profile), 20 Jan 2018 @ 9:36am
  
  Re: BoingBoing clearly wrong
  Technically, even with the image linked from the BoingBoing page it is the offending IMGUR site that is presenting the offending copyright material. The internet can be a tricky thing for attorneys who do not have a minimalist understanding of technology. That is why most firms who prosecute technology claims require the legal team to either have the appropriate technical training or hire a consultant who does.
  
  Though they could be liable for contributory infringement, there is a lot of room in the legal history to argue that BoingBoing is not actually at fault.
  
  A few relevant links for you:
  http://www.dmlp.org/legal-guide/linking-copyrighted-materials
  
  https://fairuse.stanford.edu/overvi ew/website-permissions/linking/
  
  https://www.infolawgroup.com/2013/08/articles/copyright/copyright-lin king-infringement/
  
  Observe that none of these are Wikipedia references but are in fact acceptable primary source material for legal research.
  [ link to this | view in chronology ]
orbitalinsertion (profile), 9 Nov 2017 @ 11:33pm

_law boutique_

Artisanal lawyering?
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Anonymous Coward, 10 Nov 2017 @ 2:20am

Spiralling Down the Drain
So many recent bad choices by Playboy. So much competition by so many über-porn providers. No more lurid Hef press. Guess Playboy desperately need some headlines to remind us they exist.
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