Early 2016, Boing Boing co-editor Xeni Jardin published an article in which she linked to an archive of every Playboy centerfold image till then.
“Kind of amazing to see how our standards of hotness, and the art of commercial erotic photography, have changed over time,” Jardin commented.
While the linked material undoubtedly appealed to many readers, Playboy itself took offense to the fact that infringing copies of their work were being shared in public. While Boing Boing didn’t upload or store the images in question, the publisher filed a lawsuit late last year.
The blog’s parent company Happy Mutants was accused of various counts of copyright infringement, with Playboy claiming that it exploited their playmates’ images for commercial purposes.
Boing Boing saw things differently. With help from the Electronic Frontier Foundation (EFF) it filed a motion to dismiss, arguing that hyperlinking is not copyright infringement. If Playboy would’ve had their way, millions of other Internet users could be sued for linking too.
“This case merely has to survive a motion to dismiss to launch a thousand more expensive lawsuits, chilling a broad variety of lawful expression and reporting that merely adopts the common practice of linking to the material that is the subject of the report,” they wrote.
Yesterday US District Court Judge Fernando Olguin ruled on the matter. In a brief order, he concluded that an oral argument is not needed and that based on the arguments from both sides, the case should be dismissed with leave.
This effectively means that Playboy’s complaint has been thrown out. However, the company is offered a lifeline and is allowed to submit a new one if they can properly back up their copyright infringement allegations.
“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,” Judge Olguin adds.
According to the order, it is not sufficient to argue that Boing Boing merely ‘provided the means’ to carry out copyright infringing activity. There also has to be a personal action that ‘assists’ the infringing activity.
Playboy has until the end of the month to submit a new complaint and if it chooses not to do so, the case will be thrown out.
The order is clearly a win for Boing Boing, which vehemently opposed Playboy’s claims. While the order is clear, it must come as a surprise to the magazine publisher, which won a similar ‘hyperlinking’ lawsuit in the European Court of Justice last year.
EFF, who defend Boing Boing, is happy with the order and hopes that Playboy will leave it at this.
“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,” EFF comments
“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.”
Update: Playboy missed the deadline to file a new complaint.
A copy of US District Court Judge Fernando Olguin’s order is available here (pdf).