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Playboy may be renowned for the nude women who have graced its pages throughout the years, but its copyright lawsuit over a website’s linking to “Every Playboy Playmate Centerfold Ever” is akin to a strip tease.
Boing Boing, operated by a company called Happy Mutants LLC, is defending itself after noting in February 2016 a “wonderful person” who had uploaded scans of all the playmates to imgur and a video to YouTube. “It’s an amazing collection, whether your interests are prurient or lofty,” wrote Xeni Jardin. “Kind of amazing to see how our standards of hotness, and the art of commercial erotic photography, have changed over time.”
The post then offered hyperlinks and nothing further. For this, Playboy Entertainment Group filed a lawsuit in California federal court in November.
The original complaint included two causes of action — copyright infringement and contributory copyright infringement. Then, apparently deciding that less is more, plaintiff attorney Stephen Doniger filed an amended complaint that just brought a single count of copyright infringement, but confusingly, stated that defendants conduct “included contributory infringement.”
On Jan. 18, Happy Mutants (represented by Electronic Frontier Foundation and attorneys at Durie Tangri) filed a motion to dismiss and attacked any possible claim of direct infringement as unsupportable given that there’s no allegation that Boing Boing itself had copied or displayed photos of Playboy centerfolds.
Although Playboy doesn’t outright say it is backing down in a response brief filed on Thursday — and at one point states “there is no real difference between Boing Boing directly uploading and copying the infringing content or linking to it” — the plaintiff is hardly putting up a fight to save any theory of direct infringement.
That leaves the alleged contributory infringement liability that comes via hyperlinking — which, for whatever reason, seems to be an issue that comes up often for photos of nude women.
“This is an important case,” writes Doniger.
It’s also not the first.
Both sides point to the way adult entertainment publisher Perfect 10 took on Google for indexing, linking to and providing thumbnail images of its nude photos. In 2007, the 9th Circuit Court of Appeals ruled that Google couldn’t be sued for direct copyright infringement but left open the possibility of contributory liability “if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10’s copyrighted works, and failed to take such steps.”
Playboy certainly seizes upon the notion that knowledge can mean trouble for the linker, while Happy Mutants emphasizes two things: First, since the linker must know about an infringement, that means there must be an underlying act of infringement. And second, there must be some act on Boing Boing’s part that has materially contributed or induced the infringement.
In its brief (read here), Happy Mutants runs through who might be the direct infringer. The person who uploaded the photo? Well, if so, that act came before Boing Boing did anything. Imgur and YouTube? Well, they’re just alleged intermediaries. That leaves Boing Boing readers who clicked on the link to see the gallery or video of naked playmates.
That becomes a convenient point to discuss Quentin Tarantino. Yes, him.
After all, the famed film director sued Gawker in 2014 for linking to an unpublished script for Hateful Eight. “Enjoy!” wrote the Gawker editor.
A few months later, a judge dismissed the case with the conclusion that “Tarantino failed to adequately plead facts establishing direct infringement by a third party or facts that would demonstrate [Gawker] either caused, induced, or materially contributed to the alleged direct infringement of those third party infringers.”
“Like the Plaintiff in Tarantino, Playboy alleges that Boing Boing reported on the availability of, and linked to, allegedly infringing content but does not allege that any Boing Boing user in fact downloaded — rather than simply viewing — the material in question,” writes Happy Mutants attorney Joseph Gratz.
Later, Gratz adds rather cutely, “There is simply no indication that Boing Boing intended to encourage its readers to download these files rather than view them.”
The defendant also makes a fair use argument, which seems a tad lacking at this juncture. Is commenting on the shifting standards of hotness really transformative use of a copyright? Does linking amount to no use of a copyrighted work? Does reporting and linking to the existence of photos of nude women on the web not harm the commercial market for these photos? Judges sometimes address fair use on a motion to dismiss rather than at a later stage, but usually, it’s when the answers to questions like these are pretty obvious.
Back to Happy Mutants’ point that there needs to be an underlying act of infringement plus material contribution. As to the underlying act, Playboy points in its brief (read in full here) to the person who uploaded copies of its centerfolds.
“When Happy Mutants glowingly celebrated the ‘wonderful’ users who unlawfully posted Playboy’s copyright-protected images, it may not have induced that infringement, but it certainly encouraged it,” writes Doniger, later adding, “Perfect 10 simply does not stand for the proposition that the requisite underlying act of infringement must be acts that followed those of the alleged contributory infringer.”
Playboy’s attorney also tackles those who are are clicking on Boing Boing’s link to do something. Doniger acknowledges that it is true that anyone who merely views the link is not committing infringement, but adds that there’s no requirement that specific evidence of downloading is required. Citing more legal precedent, he argues, “Flava Works says no such thing. To the contrary, it expressly found that the invitation to bookmark infringing materials on its website would constitute infringing inducement — without reference to whether any invitees actually accepted that invitation. And that is precisely what Happy Mutant is guilty of — Boing Boing essentially bookmarked the infringing material in a weblog post and then invited its readers to enjoy that material by visiting Imgur and YouTube where they could view and download the infringement.”
In short, and to the point of the defendant’s supposed contribution, Playboy is making the case that the intentional promotion of infringement amounts to infringement itself and should be punished. At a hearing scheduled for Feb. 15, Playboy will continue its attempt to save a lawsuit over linking by essentially positing to the judge that teasing nudity really leaves nothing to imagination.
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