EFF Tells Court That Boing Boing Linking To Playboy Images Is Not Infringement

from the well,-duh dept

Back in November, we wrote about a fairly crazy case in which Playboy Enterprises was suing the blog Boing Boing for copyright infringement, over a post by Xeni Jardin, linking to a collection of all Playboy centerfold images on Imgur (and a video version on YouTube). As we wrote in our post, this seemed like a very strange hill for Playboy to die on, given that Boing Boing clearly did not post the images, but merely linked to them, meaning that it was pretty clearly not infringement. There were some really strange arguments in the complaint, and the initial reporting on it that we saw was really bad -- falsely claiming the lawsuit said that Boing Boing "stole every centerfold ever." But, of course, there was no stealing at all. Just linking.

Boing Boing has now responded to the lawsuit, with help from EFF and top notch lawyers Mark Lemley and Joe Gratz from the law firm of Durie Tangri. The motion to dismiss is pretty thorough and well argued (no surprise), explaining why the case should be tossed out, because even if everything Playboy argued is true, Boing Boing has not committed any copyright infringement at all in merely linking. The MTD doesn't pull any punches:

This lawsuit is frankly mystifying. Playboy’s theory of liability seems to be that it is illegal to link to material posted by others on the web—an act performed daily by hundreds of millions of users of Facebook and Twitter, and by journalists like the ones in Playboy’s crosshairs here.

The filing describes how nothing Boing Boing did involved direct or secondary infringement, and even if it was, it's clearly protected by fair use:

The facts pleaded in Playboy’s First Amended Complaint (“FAC”) do not state a claim for either direct or contributory copyright infringement. With respect to direct infringement, Playboy alleges that third parties—not Boing Boing—posted the collection at issue, and that Boing Boing made reference to that collection with a hyperlink. As for secondary liability, Playboy does not allege facts that could show that Boing Boing induced or materially contributed to direct infringement by any third party. Playboy’s claim fails for these reasons alone.

What is more, Playboy’s own allegations show that further amendment would be futile. Boing Boing’s post is a noninfringing fair use, made for the favored and transformative purposes of news reporting, criticism, and commentary so that the reader can, in the words of the post in question, “see how our standards of hotness, and the art of commercial erotic photography, have changed over time.”

Amusingly, the Playboy complaint is so deficient that the Boing Boing motion has to try to make out what a better argument for Playboy might be... and then explain why even that would be wrong:

One possible theory on which Plaintiff may be proceeding is that the direct infringers in question are the individual or individuals who uploaded the photos in question to Imgur and YouTube. Even assuming arguendo that those uploads constituted direct infringement, that would not support a claim for contributory infringement against Boing Boing, because—as the FAC alleges—Boing Boing posted only after that third party completed the uploading, and therefore completed the alleged infringement. As discussed below, that allegation precludes contributory liability on either a materialcontribution theory or an inducement theory.

The filing does note that Boing Boing did post one image with its post... but also points out that Playboy doesn't claim the copyright on that image because it's in the public domain:

The Boing Boing blog post itself includes, as a header image, a partial reproduction of the centerfold of Miss February 1954... The FAC does not make any allegations with respect to that image, and Playboy does not include Miss February 1954 in the list of images to which it claims ownership. ECF No. 15-1. And rightly so: the February 1954 issue of Playboy entered the public domain in 1981, when Playboy did not renew its copyright registration.

But on the meat of the claim, there's clearly no infringement in sending people off to view infringing material:

It is well-established that controlling the viewing of copyrighted material is not within the exclusive rights of the copyright holder. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d at 1169; see also Flava Works, Inc. v. Gunter, 689 F.3d 754, 757-58 (7th Cir. 2012). Indeed, courts have been rejecting secondary liability claims founded on the alleged viewing of linked-to material for almost twenty years. See Bernstein v. JC Penney, Inc., No. 98-2958 R EX, 1998 WL 906644, at *1 (C.D. Cal. Sept. 29, 1998). To the extent users’ computers created temporary copies while browsing, the creation of cached or local copies during Internet browsing is a non-infringing fair use, as a matter of law. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d at 1169-70. Internet users could only commit an act of direct copyright infringement if, once they have visited or viewed the linked-to content, they take the further step of downloading a copy of the material. See Flava Works, Inc., 689 F.3d at 757-58 (“unless those visitors copy the videos they are viewing on the infringers’ websites, [the defendant] isn’t increasing the amount of infringement.”). The FAC does not allege that any reader did so.

There's much more in the motion to dismiss and I highly recommend reading it.

Of course, all of this should make you wonder -- as I did in our original post on this lawsuit, what the hell Playboy is thinking. It's a pretty bad look all around to be filing such a flimsy copyright complaint against a blog such as Boing Boing. While this does appear to be a SLAPP style lawsuit, anti-SLAPP claims are not available on federal claims, such as copyright. However, the Copyright Act does allow for awarding legal fees on bad copyright claims, and the Supreme Court has been supportive of such fee shifting.

But this brings us back to what the hell Playboy thought in bringing this lawsuit. At the very least, it raises questions about the lawyers Playboy has hired. Perhaps not surprisingly, this is not the first time the lawyer who filed the complaint, Stephen Doniger, has appeared on our pages. A few years back, we noted that Doniger appeared to be copyright trolling, filing a bunch of infringement claims over clothing that had horizontal stripes (NOT KIDDING!). Indeed, Doniger has been dubbed a copyright troll of the fashion industry, and his firm is listed as being near the top of the "most copyright cases filed" list as of last year.

But it appears they've been branching out. Soon after filing the Boing Boing lawsuit for Playboy, Doniger sued Disney and others on behalf of Jaime Ciero, claiming that the hit song "Let it Go" from the movie Frozen infringed on Ciero's song, which seems to be building on the whole "Blurred Lines" line of cases where any song that has some sort of similarity to another song is now subject to infringement claims. And Donger's firm seems to be finding a lot of these "similarities" in songs. He went after Demi Lovato for one of her songs sounding similar to a Sleigh Bells song (that lawsuit settled, but Lovato is also named as a defendant in that Let It Go lawsuit -- so I'm guessing she's not a fan of Doniger). Doniger is also the lawyer behind a recent lawsuit against Cindi Lauper over a song from her big Broadway musical "Kinky Boots."

Doniger's partner in the firm is Scott Burroughs, who writes a regular column for our friends at Above the Law. I'm sure it's a complete coincidence that in the days and weeks after Doniger and Burroughs sued Boing Boing for linking, that Burroughs suddenly posted a series of silly pieces claiming that framing and inline-linking or embedding are obvious infringements (which... many courts would actually disagree with) and using one of those stories to slam EFF for daring to defend linking as non-infringing (a bit of fore-shadowing, perhaps?). He even argued that such deep linking is "ground zero in the latest battle of Big Tech versus the arts community."

Either way, beyond copyright trolling over stripes on clothes and marginally similar songs, it appears that Doniger and Burroughs sense a new opportunity in suing for infringement over linking. Hopefully the court (with EFF's help) shuts them down on this one quickly.

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Filed Under: boing boing, centerfolds, linking, playboy, scott burroughs, stephen doniger
Companies: boing boing, doniger burroughs, happy mutants, playboy