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 complaint.
Playboy accused the blog’s parent company Happy Mutants of various counts of copyright infringement, claiming that it exploited their playmates’ images for commercial purposes.
Last month Boing Boing responded to the allegations with a motion to dismiss. The case should be thrown out, it argued, noting that linking to infringing material for the purpose of reporting and commentary, is not against the law.
This prompted Playboy to fire back, branding Boing Boing a “clickbait” site. Playboy informed the court that the popular blog profits off the work of others and has no fair use defense.
Before the California District Court decides on the matter, Boing Boing took the opportunity to reply to Playboy’s latest response. According to the defense, Playboy’s case is an attack on people’s freedom of expression.
“Playboy claims this is an important case. It is partially correct: if the Court allows this case to go forward, it will send a dangerous message to everyone engaged in ordinary online commentary,” Boing Boing’s reply reads.
Referencing a previous Supreme Court decision, the blog says that the Internet democratizes access to speech, with websites as a form of modern-day pamphlets.
Links to source materials posted by third parties give these “pamphlets” more weight as they allow readers to form their own opinion on the matter, Boing Boing argues. If the court upholds Playboy’s arguments, however, this will become a risky endeavor.
“Playboy, however, would apparently prefer a world in which the ‘pamphleteer’ must ask for permission before linking to primary sources, on pain of expensive litigation,” the defense writes.
“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.”
The defense says that there are several problems with Playboy’s arguments. Among other things, Boing Boing argues that did nothing to cause the unauthorized posting of Playboy’s work on Imgur and YouTube.
Another key argument is that linking to copyright-infringing material should be considered fair use, since it was for purposes of criticism, commentary, and news reporting.
“Settled precedent requires dismissal, both because Boing Boing did not induce or materially contribute to any copyright infringement and, in the alternative, because Boing Boing engaged in fair use,” the defense writes.
Instead of going after Boing Boing for contributory infringement, Playboy could actually try to uncover the people who shared the infringing material, they argue. There is nothing that prevents them from doing so.
After hearing the arguments from both sides it is now up to the court to decide how to proceed. Given what’s at stake, the eventual outcome in this case is bound to set a crucial precedent.
A copy of Boing Boing’s reply is available here (pdf).