• by Wendy Davis  @wendyndavis, January 19, 2018

Boing Boing is asking a federal judge to dismiss a lawsuit alleging that the company infringed Playboy's copyright by linking to an outside site that displayed photos of centerfolds.

"This lawsuit is frankly mystifying," the Electronic Frontier Foundation, which is representing the online publisher, argues in papers filed Thursday with U.S. District Court Judge Fernando Olguin in the Central District of California. "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."

The suit, filed last year, stems from the February 2016 Boing Boing post "Every Playboy Playmate Centerfold Ever." "Some wonderful person uploaded scans of every Playboy Playmate centerfold to imgur," the post reads. "Kind of amazing to see how our standards of hotness, and the art of commercial erotic photography, have changed over time."

Below that was a link to imgur, and a link to a YouTube video featuring the photos. The images on imgur and the YouTube clip are no longer available.

Playboy alleged that Boing Boing infringed copyright by posing the links. The complaint specifically said that Boing Boing (and other unknown defendants) "generate revenue through the advertising on the website pages bearing the subject works, as well as through any referral links to external websites on those pages."

But Boing Boing counters that it has a fair use right to link to outside content and offer commentary. "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 company argues.

"When a journalist links to a page on the web and comments on the way that page sheds light on artistic and cultural issues, the journalist should not fear copyright infringement liability -- and should not fear the costs of protracted copyright litigation," Boing Boing adds. "That is why ... the linking at issue in this case does not give rise to copyright liability for the journalist engaged in that linking."

The website also says merely linking to material posted by outside parties doesn't in itself infringe copyright. The company points to a 10-year-old decision in a lawsuit brought by adult entertainment company Perfect 10 against Amazon. In that case, the 9th Circuit Court of Appeals said Amazon didn't infringe Perfect 10 by linking to photos on outside servers.

Boing Boing adds that allegations in the complaint don't support the conclusion that the site contributed to copyright infringement by web users who may have visited the imgur and YouTube pages with the images. "Playboy ... does not allege that any Boing Boing user in fact downloaded -- rather than simply viewing -- the material in question."