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.


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 14 Feb 2018 @ 2:43pm

    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.

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

    • identicon
      Anonymous Coward, 14 Feb 2018 @ 3:02pm

      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."

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

    • icon
      Rapnel (profile), 14 Feb 2018 @ 3:24pm

      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.

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

    • icon
      Mike Masnick (profile), 14 Feb 2018 @ 4:15pm

      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.

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

      • icon
        Toom1275 (profile), 16 Feb 2018 @ 6:38am

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

        It seems that's more by necessity than coincidence.

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

        • identicon
          Anonymous Coward, 16 Feb 2018 @ 4:13pm

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

          Schrodinger's common law: It can say anything that supports your argument as long as you don't research!

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

          • identicon
            Isma'il, 16 Feb 2018 @ 5:50pm

            Re: Re: Re: Re: 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.

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

    • identicon
      Anonymous Coward, 14 Feb 2018 @ 5:25pm

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

      Has there been any situation in the history of the universe where you knew what you were talking about?

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

    • identicon
      Anonymous Coward, 14 Feb 2018 @ 6:12pm

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

      Half a peach? Right... that speaks volumes about your confidence. I'd go for Playboy having to pay statutory damages if they lost.

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

    • identicon
      Anonymous Coward, 14 Feb 2018 @ 8:27pm

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

      Wait wait wait. Did we just agree that copyright law is too complicated?!?

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

      • icon
        PaulT (profile), 15 Feb 2018 @ 12:57am

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

        Yes he did, but good luck getting him to admit that next time he's claiming that it isn't.

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

    • icon
      DannyB (profile), 15 Feb 2018 @ 5:59am

      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.

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

    • icon
      Bergman (profile), 15 Feb 2018 @ 8:15am

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

      By that standard, operating a news stand or a book store would be inducement -- after all, you can't make illicit copies without a legitimate copy to copy from.

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

  • identicon
    Anonymous Coward, 14 Feb 2018 @ 3:37pm

    A case of premature filing ?

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

  • icon
    That One Guy (profile), 14 Feb 2018 @ 3:58pm

    Shoo

    Playboy really needs to sack their current lawyers and hire some competent ones who aren't just racking up the billable hours. If a case is dismissed at the outset that's a pretty good indicator that it's incredibly weak, such that it really shouldn't have been filed in the first place.

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

  • identicon
    Pixelation, 14 Feb 2018 @ 6:18pm

    If anything, it's Playboy's fault for producing pictures of hot young naked women. Who wouldn't want to "infringe"?

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

    • identicon
      cpt kangarooski, 14 Feb 2018 @ 6:30pm

      Re:

      If anything, it’s Playboy’s fault for producing pictures of hot young naked women. Who wouldn’t want to “infringe”?

      Hey now! I only infringe for the articles.

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

      • identicon
        Anonymous Coward, 14 Feb 2018 @ 6:54pm

        Re: Re:

        Me2. All I wanted to do was read some nice articles but those women kept sexually assaulting me over and over by exposing their bodies on the adjacent pages.

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

        • identicon
          Pixelation, 14 Feb 2018 @ 9:56pm

          Re: Re: Re:

          "All I wanted to do was read some nice articles but those women kept sexually assaulting me over and over by exposing their bodies on the adjacent pages."

          I think we now have enough to bring a civil action against Playboy. Shame on them for luring our baser instincts from our well defended minds!

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

  • identicon
    Anonymous Coward, 14 Feb 2018 @ 6:45pm

    Common sense prevails!

    Great news here, and great job actually beating boing boing itself at delivering it!

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

  • This comment has been flagged by the community. Click here to show it
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