A few weeks ago we were shocked to learn that Playboy had, without notifying us, sued us over this post
(we learned about it when a journalist DM’ed us on Twitter to ask about
it). Today, we filed a motion to dismiss, asking the judge to throw out
this baseless, bizarre case. We really hope the courts see it our way,
for all our sakes.
Playboy’s lawsuit is based on an imaginary (and dangerous) version of US
copyright law that bears no connection to any US statute or precedent.
Playboy – once legendary champions for the First Amendment – now
advances a fringe copyright theory: that it is illegal to link to things
other people have posted on the web, on pain of millions in damages –
the kinds of sums that would put us (and every other small publisher in
America) out of business.
Rather than pursuing the individual who created the allegedly infringing
archive, Playboy is pursuing a news site for pointing out the archive’s
value as a historical document. In so doing, Playboy is seeking to
change the legal system so that deep-pocketed opponents of journalism
can shut down media organizations that displease them. It’s a law that
they could never get from Congress, but which they hope the courts will
conjure into existence by wiping us off the net.
It’s not just independent publishers who rely on the current state of
copyright law, either. Major media outlets (like Playboy!) routinely
link and embed media, without having to pay a lawyer to research the
copyright status of something someone else posted, before discussing,
explaining or criticizing it.
The world can’t afford a judgment against us in this case – it would
end the web as we know it, threatening everyone who publishes online,
from us five weirdos in our basements to multimillion-dollar,
globe-spanning publishing empires like Playboy.
As a group of people who have had long associations with Playboy,
reading the articles (really!) and sometimes writing them, we hope the
judge sees it our way – for our sakes… and for Playboy’s.
You can read our motion here, and EFF’s press release here. We’ll have more to say after the judge issues his ruling.
Here’s the introduction from our motion to dismiss:
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.
Defendant Happy Mutants, LLC (“Happy Mutants”) is the corporation
behind Boing Boing, a blog created and written by five people to share
“mostly wonderful things.” For three decades, Boing Boing has reported
on social, educational, political, scientific, and artistic developments
in popular culture, becoming one of the Internet’s leading sources of
news and commentary. Plaintiff Playboy Entertainment Group Inc.
(“Playboy”), an entertainment behemoth with a notable history of
defending freedom of the press, is suing this much smaller but important
news site for reporting on the existence of a collection of Playboy
centerfolds and linking to that collection. In other words, rather than
pursuing the individual who created the allegedly infringing archive,
Playboy is pursuing a news site for pointing out the archive’s value as a
historical document.
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.”
The Court should dismiss Playboy’s First Amended Complaint with prejudice.
