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Court Dismisses Playboy's Lawsuit Against Boing Boing (For Now)

February 14, 2018

Court Dismisses Playboy's Lawsuit Against Boing Boing (For Now)

In a win for free expression, a court has dismissed a copyright lawsuit against Happy Mutants, LLC, the company behind acclaimed website Boing Boing. The court ruled [PDF] that Playboy’s complaint—which accused Boing Boing of copyright infringement for linking to a collection of centerfolds—had not sufficiently established its copyright claim. Although the decision allows Playboy to try again with a new complaint, it is still a good result for supporters of online journalism and sensible copyright.

Playboy Entertainment’s lawsuit accused Boing Boing of copyright infringement for reporting on a historical collection of Playboy centerfolds and linking to a third-party site. In a February 2016 post, Boing Boing told its readers that someone had uploaded scans of the photos, noting they were “an amazing collection” reflecting changing standards of what is considered sexy. The post contained links to an page and YouTube video—neither of which were created by Boing Boing.

EFF, together with co-counsel Durie Tangri, filed a motion to dismiss [PDF] on behalf of Boing Boing. We explained that Boing Boing did not contribute to the infringement of any Playboy copyrights by including a link to illustrate its commentary. The motion noted that another judge in the same district had recently dismissed a case where Quentin Tarantino accused Gawker of copyright infringement for linking to a leaked script in its reporting.

Judge Fernando M. Olguin’s ruling quotes the Tarantino decision, noting that:

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.

Given this standard, the court was “skeptical that plaintiff has sufficiently alleged facts to support either its inducement or material contribution theories of copyright infringement.”

From the outset of this lawsuit, we have been puzzled as to why Playboy, once a staunch defender of the First Amendment, would attack a small news and commentary website. Today’s decision leaves Playboy with a choice: it can try again with a new complaint or it can leave this lawsuit behind. We don’t believe there’s anything Playboy could add to its complaint that would meet the legal standard. We hope that it will choose not to continue with its misguided suit.

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