Playboy Sues BoingBoing For Linking To Collection Of Centerfold Pictures

from the really-now? dept

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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  • identicon
    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?

    reply to this | link to this | view in chronology ]

    • identicon
      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.

      reply to this | link to this | view in chronology ]

    • icon
      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.

      reply to this | link to this | view in chronology ]

  • identicon
    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.

    reply to this | link to this | view in chronology ]

  • identicon
    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.

    reply to this | link to this | view in chronology ]

    • identicon
      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.

      reply to this | link to this | view in chronology ]

      • identicon
        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/

        reply to this | link to this | view in chronology ]

    • identicon
      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.

      reply to this | link to this | view in chronology ]

    • identicon
      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.

      reply to this | link to this | view in chronology ]

      • identicon
        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.

        reply to this | link to this | view in chronology ]

    • identicon
      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.

      reply to this | link to this | view in chronology ]

    • identicon
      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

      reply to this | link to this | view in chronology ]

  • identicon
    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!

    reply to this | link to this | view in chronology ]

  • identicon
    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”.

    reply to this | link to this | view in chronology ]

  • identicon
    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.

    reply to this | link to this | view in chronology ]

    • identicon
      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.

      reply to this | link to this | view in chronology ]

    • identicon
      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.

      reply to this | link to this | view in chronology ]

      • identicon
        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.

        reply to this | link to this | view in chronology ]

        • identicon
          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.

          reply to this | link to this | view in chronology ]

          • identicon
            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.

            reply to this | link to this | view in chronology ]

            • identicon
              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.

              reply to this | link to this | view in chronology ]

        • identicon
          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.

          reply to this | link to this | view in chronology ]

    • identicon
      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.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Nov 2017 @ 4:58pm

      Re: BoingBoing clearly wrong

      Are you a lawyer?

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 9 Nov 2017 @ 5:46pm

      Re: BoingBoing clearly wrong

      You don't seem to know very much about copyright law.

      reply to this | link to this | view in chronology ]

      • identicon
        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?

        reply to this | link to this | view in chronology ]

    • icon
      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.

      reply to this | link to this | view in chronology ]

      • identicon
        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...

        reply to this | link to this | view in chronology ]

        • icon
          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.

          reply to this | link to this | view in chronology ]

          • identicon
            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.

            reply to this | link to this | view in chronology ]

            • icon
              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.

              reply to this | link to this | view in chronology ]

          • icon
            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.

            reply to this | link to this | view in chronology ]

            • identicon
              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?

              reply to this | link to this | view in chronology ]

        • identicon
          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'?

          reply to this | link to this | view in chronology ]

      • identicon
        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.

        reply to this | link to this | view in chronology ]

    • icon
      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.

      reply to this | link to this | view in chronology ]

      • identicon
        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...

        reply to this | link to this | view in chronology ]

        • identicon
          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.

          reply to this | link to this | view in chronology ]

  • icon
    orbitalinsertion (profile), 9 Nov 2017 @ 11:33pm

    _law boutique_

    Artisanal lawyering?

    reply to this | link to this | view in chronology ]

  • identicon
    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.

    reply to this | link to this | view in chronology ]


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