Judge Dismisses Playboy's Dumb Copyright Lawsuit Against BoingBoing

from the with-leave-to-amend dept

Well, that was incredibly quick. The district court judge hearing the case that Playboy filed against BoingBoing back in November has already dismissed it, though without prejudice, leaving it open for Playboy to try again. The judge noted that, given the facts before the court so far, it wasn’t even necessary to hold a hearing, since BoingBoing was so clearly in the right and Playboy so clearly had no case. While the ruling does note that Playboy and its legal team can try again, it warns them that it’s hard to see how there’s a case here:

The court will grant defendant?s Motion and dismiss plaintiff?s First Amended Complaint… with leave to amend. In preparing the Second Amended Complaint, plaintiff shall carefully evaluate the contentions set forth in defendant?s Motion. For example, the court is skeptical that plaintiff has sufficiently alleged facts to support either its inducement or material contribution theories of copyright infringement…. see Tarantino v. Gawker Media, LLC, 2014 WL 2434647, *3 (C.D. Cal. 2014) (?An allegation that a defendant merely provided the means to accomplish an infringing activity is insufficient to establish a claim for copyright infringement. Rather, liability exists if the defendant engages in personal conduct that encourages or assists the infringement.?) (internal citations omitted); Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 672 (9th Cir.), cert. denied, 138 S.Ct. 504 (2017) (?We have described the inducement theory as having four elements: (1) the distribution of a device or product, (2) acts of infringement, (3) an object of promoting its use to infringe copyright, and (4) causation.?) (internal quotation marks omitted).

It will be interesting to see what happens next. As we noted in our original post, the lawyers representing Playboy, Donger and Burroughs have been making every effort over the last year or so to move beyond their reputation as fabric copyright trolls, and seeking out opportunities for high profile, if silly, cases including “sounds like” music cases. While one of the two partners, Scott Burroughs, has busied himself over at Above the Law (who really should think more carefully about the lawyers they bring in as posters) to post increasingly silly things about copyright law — including trying to argue that linking is infringing and the EFF is wrong to argue that it’s not.

That article — written about the same time that the BoingBoing lawsuit was filed — looks particularly bad now that a court has rejected the same argument in a case in which Burroughs is listed as a lawyer for Playboy, and in which EFF helped write the Motion to Dismiss that said that Burroughs was wrong. Just days ago, another lawyer posting at Above the Law explained why Burroughs’ own case had no chance (without mentioning Burroughs’ own writings on the site).

I’m guessing that Playboy will file an amended complaint, though as we noted earlier, in copyright law, it’s much easier to have legal fees awarded for filing frivolous cases, and as the quote above notes, the judge is “skeptical” that Playboy has any case at all.

Filed Under: , , , , , , , ,
Companies: boing boing, doniger burroughs, happy mutants, playboy

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Comments on “Judge Dismisses Playboy's Dumb Copyright Lawsuit Against BoingBoing”

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21 Comments
Anonymous Coward says:

Linking surely meets this test: "Rather, liability exists if the defendant engages in personal conduct that encourages or assists the infringement."

Encouragement: “hey, check this out”

Assistance: “here’s the link so you don’t have to make any effort of your own”.

The implication of this decision would be that Google should never have to remove links to infringing content! — I’m sure you’d cheer that. — But I doubt that’ll happen, and think decisions against Google would be good basis for proceeding.

However, the tests are difficult to meet in the strictest reading. I think this is too complex and tricky for a mere judge, when the actual problem is that BB is getting money by linking; it should be put to a jury, and I’d bet ya half a peach BB would not win.

Anonymous Coward says:

Re: Linking surely meets this test: "Rather, liability exists if the defendant engages in personal conduct that encourages or assists the infringement."

“However, the tests are difficult to meet in the strictest reading. I think this is too complex and tricky for a mere judge, when the actual problem is that BB is getting money by linking; it should be put to a jury, and I’d bet ya half a peach BB would not win.”

Translation:

“Lawyers should get a chance to convince people who don’t understand the law instead of letting professionals who actually do know the law decide a case.”

Rapnel (profile) says:

Re: Linking surely meets this test: "Rather, liability exists if the defendant engages in personal conduct that encourages or assists the infringement."

You’re still behaving like you don’t understand but you do, you do.

All these(you) asshats are doing is attempting to shoot(bill) the messenger(s) while aiming for safe harbors all on other peoples’ dime and time.

If it’s accessible on the networks and it’s a problem for you then how about you track the source(s) down. We are not here to temper, filter, prevent or even understand why, how or from where an accessible address delivers its data from. If you claim to have a “claim” then that’s your fucking job to provide a mechanism to handle your wares. And you suck at it.

You infamously lazy bastards are rats. Dirty rats.

Mike Masnick (profile) says:

Re: Linking surely meets this test: "Rather, liability exists if the defendant engages in personal conduct that encourages or assists the infringement."

The implication of this decision would be that Google should never have to remove links to infringing content!

For someone who keeps claiming "common law" says this or that, you seem woefully unfamiliar with what caselaw actually says or how it’s applied.

Isma'il says:

Re: Re: Re:2 Linking surely meets this test: "Rather, liability exists if the defendant engages in personal conduct that encourages or assists the infringement."

Possibly a better Schroedinger’s reference:

It is both legal and illegal at the same time. The only way that it would be conclusively one or the other is when/if the Supreme Court rules on it.

DannyB (profile) says:

Re: Linking surely meets this test: "Rather, liability exists if the defendant engages in personal conduct that encourages or assists the infringement."

I don’t have a problem going after copyright infringers. But you’re pretty seriously stretching the meaning of "encourages or assists". Stretching it waaaaay too far. Careful there.

(snap)

Oooops. It just snapped because you stretched it too far.

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