• by Wendy Davis  @wendyndavis, January 29, 2018

Playboy is pressing a judge to allow it to proceed with a lawsuit alleging that the the supposed "clickbait site" Boing Boing infringed copyright by linking to an outside site that displayed photos of centerfolds.

"This is an important case," the magazine says in papers filed late last week with U.S. District Court Judge Fernando Olguin in the Central District of California. "At issue is whether clickbait sites like Happy Mutants’ Boing Boing weblog -- a site designed to attract viewers and encourage them to click on links in order to generate advertising revenue -- can knowingly find, promote, and profit from infringing content with impunity."

Playboy adds that Boing Boing "knowingly connected its website to third party sites loaded with unlawful copies of Playboy’s works" in order to "exploit and monetize the web traffic that over fifty years of Playboy photographs would generate."

The dispute stems from Boing Boing's February 2016 blog post titled "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 in a lawsuit filed last year that Boing Boing infringed copyright by posing the links. Earlier this month, Boing Boing asked Olguin to dismiss the case at an early stage.

The site, represented by the digital rights group Electronic Frontier Foundation, argued that merely linking to sites with infringing content is not unlawful. Boing Boing also said it has the fair use right to link to outside material and post commentary.

Playboy is asking the judge to reject Boing Boing's bid for dismissal. Among other arguments, Playboy says Boing Boing shouldn't be able to profit from copyright infringement, regardless of whether it uploaded the images.

"From the perspective of the viewer, there is no real difference between Boing Boing directly uploading and copying the infringing content or linking to it -- either way the viewer sees the link to the content, clicks on it, and is connected to it," Playboy argues. "Neither the Copyright Act nor the courts interpreting it could have intended that a website can intentionally promote infringing content for profit so long as their links only go to third party sites. There is simply no public policy justification for such a loophole."

Olguin is slated to hold a hearing in the case on February 15.