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The motion to dismiss was filed at the US District Court for the Central District of California, Western Division, Los Angeles, on Thursday, January 18 by Happy Mutants, the company that operates the Boing Boing website.
Men’s lifestyle and entertainment magazine Playboy filed the claim on November 7, 2017, alleging that Boing Boing had violated Playboy’s copyright by linking an online feature to an image gallery and a YouTube video.
The linked content featured pirated copies of the magazine’s notorious Playmate images: fold-out photographs of naked women.
The content, accessible via the links, was not created, hosted, or stored by Boing Boing, but was reported upon in the context of a blog post.
Boing Boing has called the matter a “baseless, bizarre case” as Playboy has targeted the sharer of the content, rather than those who created the infringing content.
It claimed that Playboy relies upon a “fringe copyright theory”, falsely assuming that “it is illegal to link to things that other people have posted on the web”.
In September 2016, the Court of Justice of the European Union (CJEU) heard that Sanoma, the Dutch publisher of Playboy, accused a media website of copyright infringement for publishing links to Playboy’s content online.
Europe’s highest court ruled that that linking to unauthorised copyright works is not a communication of that work to the public, as long as the person posting the link doesn’t seek financial gain and doesn’t know that the works linked to were published illegally.
Prior to the hearing, the advocate-general of the CJEU expressed the view that hyperlinks leading to unauthorised copyright material are not a communication to the public, if the material is freely available on that website.
The Electronic Frontier Foundation (EFF) is representing Boing Boing in this matter.
The foundation, in its request for dismissal, told the federal court that the “groundless” claim should be thrown out.
The EFF said Boing Boing is guilty of “doing nothing more than reporting on a historical collection of Playboy centrefolds”.
According to Corynne McSherry, legal director of EFF, the claim is “frankly mystifying”.
Speaking to TBO, she said it was disappointing to see an outlet that so frequently celebrates free speech burdening Boing Boing with a lawsuit such as this.
Playboy, Happy Mutants, Boing Boing, copyright infringement, internet copyright, hyperlinks, hyperlinking