Via David Dayen comes Playboy sues Boing-Boing:
Here’s the introduction from our motion to dismiss:
This lawsuit is frankly mystifying. 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.
Defendant Happy Mutants, LLC (“Happy Mutants”) is the corporation behind Boing Boing, a blog created and written by five people to share “mostly wonderful things.” For three decades, Boing Boing has reported on social, educational, political, scientific, and artistic developments in popular culture, becoming one of the Internet’s leading sources of news and commentary. Plaintiff Playboy Entertainment Group Inc. (“Playboy”), an entertainment behemoth with a notable history of defending freedom of the press, is suing this much smaller but important news site for reporting on the existence of a collection of Playboy centerfolds and linking to that collection. In other words, rather than pursuing the individual who created the allegedly infringing archive, Playboy is pursuing a news site for pointing out the archive’s value as a historical document.
The facts pleaded in Playboy’s First Amended Complaint (“FAC”) do not state a claim for either direct or contributory copyright infringement. With respect to direct infringement, Playboy alleges that third parties — not Boing Boing — posted the collection at issue, and that Boing Boing made reference to that collection with a hyperlink. As for secondary liability, Playboy does not allege facts that could show that Boing Boing induced or materially contributed to direct infringement by any third party. Playboy’s claim fails for these reasons alone.
What is more, Playboy’s own allegations show that further amendment would be futile. 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 Court should dismiss Playboy’s First Amended Complaint with prejudice.