Back in 2016, Xeni Jardin, co-editor of Boing Boing “a directory of mostly wonderful things”, published an article containing a link to an archive of every Playboy centrefold image ever created. The article explained that it was: “Kind of amazing to see how our standards of hotness, and the art of commercial erotic photography, have changed over time”.
However, whilst Jardin, and presumably many others, found the archive to be amazing, Playboy was not too keen. Playboy did not take kindly to the fact that its work was being shared in public. It should be noted, Boing Boing didn’t actually host the images, the directory simply provided the link to the archive of images that were stored on Imgur.
Happy Mutants, Boing Boing’s owner, was accused of copyright infringement. Playboy stated that Boing Boing had exploited the Playboy centrefold images for commercial gain.
Although Boing Boing did not agree, with help from the Electronic Frontier Foundation, a motion to dismiss was filed, in which it was stated that hyper linking is not copyright infringement. It was stated: “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,”
On Wednesday, US District Judge Fernando Olguin handed down his ruling in response to the motion to dismiss. The Judge stated that based on the provided arguments, from both sides, the case is to be dismissed with leave to amend.
Therefore, Playboy’s complaint has been thrown out but if it is able to substantiate the claims of copyright infringement it will be able to file a new complaint. Judge Fernando Olguin states: “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,”
Although the clock is ticking, Playboy has less than a month to make the amendments and submit a new complaint, if not the case will be thrown out.
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