Late 2017, Boing Boing co-editor Xena Jardin posted an article in which he linked to an archive containing every Playboy centerfold image to date.

“Kind of amazing to see how our standards of hotness, and the art of commercial erotic photography, have changed over time,” Jardin noted.

While Boing Boing had nothing to do with the compilation, uploading, or storing of the Imgur-based archive, Playboy took exception to the popular blog linking to the album.

Noting that Jardin had referred to the archive uploader as a “wonderful person”, the adult publication responded with a lawsuit (pdf), claiming that Boing Boing had commercially exploited its copyrighted images.

Last week, with assistance from the Electronic Frontier Foundation, Boing Boing parent company Happy Mutants filed a motion to dismiss in which it defended its right to comment on and link to copyrighted content without that constituting infringement.

“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,” the company wrote.

EFF Senior Staff Attorney Daniel Nazer weighed in too, arguing that since Boing Boing’s reporting and commenting is protected by copyright’s fair use doctrine, the “deeply flawed” lawsuit should be dismissed.

Now, just a week later, Playboy has fired back. Opposing Happy Mutants’ request for the Court to dismiss the case, the company cites the now-famous Perfect 10 v. Amazon/Google case from 2007, which tried to prevent Google from facilitating access to infringing images.

Playboy highlights the court’s finding that Google could have been held contributorily liable – if it had knowledge that Perfect 10 images were available using its search engine, could have taken simple measures to prevent further damage, but failed to do so.

Turning to Boing Boing’s conduct, Playboy says that the company knew it was linking to infringing content, could have taken steps to prevent that, but failed to do so. It then launches an attack on the site itself, offering disparaging comments concerning its activities and business model.

“This is an important case. 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 writes.

“Clickbait sites like Boing Boing are not known for creating original content. Rather, their business model is based on ‘collecting’ interesting content created by others. As such, they effectively profit off the work of others without actually creating anything original themselves.”

Playboy notes that while sites like Boing Boing are within their rights to leverage works created by others, courts in the US and overseas have ruled that knowingly linking to infringing content is unacceptable.

Even given these conditions, Playboy argues, Happy Mutants and the EFF now want the Court to dismiss the case so that sites are free to “not only encourage, facilitate, and induce infringement, but to profit from those harmful activities.”

Claiming that Boing Boing’s only reason for linking to the infringing album was to “monetize the web traffic that over fifty years of Playboy photographs would generate”, Playboy insists that the site and parent company Happy Mutants was properly charged with copyright infringement.

Playboy also dismisses Boing Boing’s argument that a link to infringing content cannot result in liability due to the link having both infringing and substantial non-infringing uses.

First citing the Betamax case, which found that maker Sony could not be held liable for infringement because its video recorders had substantial non-infringing uses, Playboy counters with the Grokster decision, which held that a distributor of a product could be liable for infringement, if there was an intent to encourage or support infringement.

“In this case, Happy Mutants’ offending link — which does nothing more than support infringing content — is good for nothing but promoting infringement and there is no legitimate public interest in its unlicensed availability,” Playboy notes.

In its motion to dismiss, Happy Mutants also argued that unless Playboy could identify users who “in fact downloaded — rather than simply viewing — the material in question,” the case should be dismissed. However, Playboy rejects the argument, claiming it is based on an erroneous interpretation of the law.

Citing the Grokster decision once more, the adult publisher notes that the Supreme Court found that someone infringes contributorily when they intentionally induce or encourage direct infringement.

“The argument that contributory infringement only lies where the defendant’s actions result in further infringement ignores the ‘or’ and collapses ‘inducing’ and ‘encouraging’ into one thing when they are two distinct things,” Playboy writes.

As for Boing Boing’s four classic fair use arguments, the publisher describes these as “extremely weak” and proceeds to hit them one by one.

In respect of the purpose and character of the use, Playboy discounts Boing Boing’s position that the aim of its post was to show “how our standards of hotness, and the art of commercial erotic photography, have changed over time.” The publisher argues that is the exact same purpose of Playboy magazine, while highliting its publication Playboy: The Compete Centerfolds, 1953-2016.

Moving on to the second factor of fair use – the nature of the copyrighted work – Playboy notes that an entire album of artwork is involved, rather than just a single image.

On the third factor, concerning the amount and substantiality of the original work used, Playboy argues that in order to publish an opinion on how “standards of hotness” had developed over time, there was no need to link to all of the pictures in the archive.

“Had only representative images from each decade, or perhaps even each year, been taken, this would be a very different case — but Happy Mutants cannot dispute that it knew it was linking to an illegal library of ‘Every Playboy Playmate Centerfold Ever’ since that is what it titled its blog post,” Playboy notes.

Finally, when considering the effect of the use upon the potential market for or value of the copyrighted work, Playbody says its archive of images continues to be monetized and Boing Boing’s use of infringing images jeopardizes that.

“Given that people are generally not going to pay for what is freely available, it is disingenuous of Happy Mutants to claim that promoting the free availability of infringing archives of Playboy’s work for viewing and downloading is not going to have an adverse effect on the value or market of that work,” the publisher adds.

While it appears the parties agree on very little, there is agreement on one key aspect of the case – its wider importance.

On the one hand, Playboy insists that a finding in its favor will ensure that people can’t commercially exploit infringing content with impunity. On the other, Boing Boing believes that the health of the entire Internet is at stake.

“The world can’t afford a judgment against us in this case — it would end the web as we know it, threatening everyone who publishes online, from us five weirdos in our basements to multimillion-dollar, globe-spanning publishing empires like Playboy,” the company concludes.

Playboy’s opposition to Happy Mutants’ motion to dismiss can be found here (pdf)

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Back in the day, The Pirate Bay was famous for its amusing responses to legal threats. Instead of complying with takedown notices, it sent witty responses to embarrass the senders.

Today the notorious torrent site gives copyright holders the silent treatment, but the good-old Pirate Bay spirit still lives on elsewhere.

Earlier today the anonymous domain registration service Njalla, which happens to be a venture of TPB co-founder Peter Sunde, posted a series of noteworthy responses it sent to The New York Times’ (NYT) legal department.

The newspaper warned the registration service about one of its customers, paywallnews.com, which offers the news service’s content without permission. Since this is a violation of The Times’ copyrights, according to the paper, Njalla should take action or face legal consequences.

NYT: Accordingly, we hereby demand that you immediately provide us with contact information — including email addresses — for both the actual owner of the paywallnew.com website, and for the hosting provider on which the paywallnew.com website is located.

If we have not heard from you within three (3) business days of receipt of this letter, we will have no choice but to pursue all available legal remedies.

Njalla is no stranger to threats of this kind but were somewhat offended by the harsh language, it seems. The company, therefore, decided to inform the NYT that there are more friendly ways to reach out.

Njalla: Thanks for that lovely e-mail. It’s always good to communicate with people that in their first e-mail use words as “we demand”, “pursue all available legal remedies” and so forth. I’d like to start out with some free (as in no cost) advice: please update your boiler threat letters to actually try what most people try first: being nice. It’s not expensive (actually the opposite) and actually it works much better than your method (source: a few tens of thousands years of human development that would not have been as efficient with threats as it would have been with cooperation).

In addition, Njalla also included a request of its own. They kindly asked (no demand) the newspaper’s legal department for proof that they are who they say they are. You can never be too cautious, after all.

Njalla: Now, back to the questions you sent us. We’re not sure who you are, so in order to move further we’d like to see a copy of your ID card, as well as a notarised power of attorney showing that you are actually representing the people you’re claiming to do.

This had the desired effect, for Njalla at least. The NYT replied with an apology for the tough language that was used, noting that they usually deal with companies that employ people who are used to reading legal documents.

The newspaper did, however, submit a notarized letter signed by the company’s Executive Vice President, General Counsel and Secretary, and once again asked for details on the Njalla customer.

NYT: Once again, as I mention above, the referenced website is stealing large amounts of New York Times content. If you click on this link: http://www.paywallnews.com/sites/nytimes

…

As this abuse — aside from being an egregious infringement of The Times’s copyright — breaches your own Terms of Service, I hope you will be able to see your way to helping me to put a stop to this practice by providing me with the name and contact information for the owner of paywallnews.com and for the ISP on which it is hosted.

This is when things started to get really interesting. Founded by someone with an extensive background in “sharing,” Njalla clearly has a different definition of stealing than the NYT’s legal department.

The reply, which is worth reading in full along with the rest of the communication, makes this quite clear.

Njalla: Stealing content seem quite harsh of this website though, didn’t know that they did that! Is there anyway you can get the stolen items back though? You should either go to the police and request them to help you get the stolen items back. Or maybe talk to your insurance company, they might help to compensate you for the loss. But a helpful idea; if they’ve stolen something and then put copies of that on a website that you can freely access, I would suggest just copying it, so that both of you have the same things. That’s a great thing with the digital world, everyone can have copies of things. I am surprised they stole something when they could just have copied it. I’m guessing it’s some older individuals that don’t know the possibilities of modern day technology to make copies.

It’s obvious that the domain registration service makes a clear distinction between copying and stealing.

Piracy vs. Theft

In addition, Njalla contests that the site is problematic at all, noting that this might be a “cultural difference.”

Njalla spotted something even more worrying though. The NYT claims that the site in question violates its terms of service. Specifically, they reference the section that prohibits sites from spreading content that is illegal according to local law.

Is the NYT perhaps spreading illegal content itself, Njalla questions?

Njalla: Deborah, I was quite shocked and appalled that you referred to this part of our ToS. It made me actually not visit the website in question even though you’ve linked it now a few times. You’re admitting to spreading illegal content at your newspaper, for profit, is that correct?

We’re quite big proponents of freedom of speech, let me assure you of that, but we also have limits. If you spread illegal content, and our customers stole that illegal content and are now handing out free copies of that, that’s a huge issue for us. Since it would be illegal for us to get those copies if they’re illegal, I’m asking you what type of content it is?

As an attachment to the reply, Njalla also sent back a “notarized” letter of their own, by simply copying the NYT letter and sticking their own logo on it, to show how easily these can be fabricated.

TorrentFreak reached out to Sunde who informed us that they never heard from The New York Times after the last reply. As a domain registrant, Njalla is not obliged to comply with takedown requests, he explains.

“If they need help from us on copyright issues, they’re totally missing what we’re doing, and that they should look somewhere else anyhow. But I think most domain services gets tons of these threat emails, and a lot of them think they’re responsible because they don’t have access to legal help and just shut customers down.

“That’s what a lot of our customers say at least, since they migrated from a shitty service which doesn’t know their own business,” Sunde adds.

The NYT is not completely without options though. If they take the case to court in Sweden and win an injunction against paywallnews.com, Njalla will comply. The same is true if a customer really violates the terms of service.

Meanwhile, paywallnews.com remains online.

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Earlier this month, the Office of the US Trade Representative (USTR) released an updated version of its “Out-of-Cycle Review of Notorious Markets,” ostensibly identifying some of the worst IP-offenders worldwide.

The annual list overview helps to guide the U.S. Government’s position towards foreign countries when it comes to copyright enforcement.

The most recent version featured traditional pirate sites such as The Pirate Bay, Rapidgator, and Gostream, but also the Russian social network VK and China-based marketplaces Alibaba and Taobao.com.

Since the list only identifies foreign sites, American services are never included. However, this restriction doesn’t apply in Europe, where the European Commission announced this week that it’s working on its own piracy watch list.

“The European Commission – on the basis of input from the stakeholders – after thorough verification of the received information – intends to publish a so called ‘Counterfeit and Piracy Watch-List’ in 2018, which will be updated regularly,” the EU’s call for submissions reads.

The EU watch list will operate in a similar fashion to the US equivalent and will be used to encourage site operators and foreign governments to take action.

“The list will identify and describe the most problematic marketplaces – with special focus on online marketplaces – in order to encourage their operators and owners as well as the responsible local authorities and governments to take the necessary actions and measures to reduce the availability of IPR infringing goods or services.”

In recent years various copyright holder groups have repeatedly complained about a lack of anti-piracy initiatives from companies such as Google and Cloudflare, so it will be interesting to see if these will be mentioned.

The same is true for online marketplaces. Responding to the US list last week, Alibaba also highlighted that several American companies suffer the same piracy and counterfeiting problems as they do, without being reprimanded.

“What about Amazon, eBay and others? USTR has no basis for comparison, because it does not ask for similar data from U.S. companies,” Alibaba noted in a rebuttal.

The EU watch list is clearly inspired by the US counterpart. It shows striking similarities with the US version of the watch list and some of the language appears to be copied (or pirated) word for word.

The EU writes, for example, that their list “will not mean to reflect findings of legal violations, nor will it reflect the European Union’s analysis of the general intellectual property rights protection and enforcement climate in the country or countries concerned.”

Just a few days earlier the USTR noted that its list “does not make findings of legal violations. Nor does it reflect the U.S. Government’s analysis of the general IP protection and enforcement climate in the countries connected with the listed markets.”

The above means that, despite branding foreign services as notorious offenders, these are mere allegations. No hard proof is to be expected in the report, nor will the EU research the matter on its own.

If the US example is followed, the watch list will be mostly an overview of copyright holder complaints, signed by the authorities. The latter is not without controversy, as China says it doubts the objectivity of USTR’s report for this very reason.

Copyright holders and other interested parties are invited to submit their contributions and comments by 31 March 2018, and the final list is expected to be released later in the year.

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The Motion Picture Distributors’ Association (MPDA) is a non-profit organisation which represents major international film studios in New Zealand.

With companies including Fox, Sony, Paramount, Roadshow, Disney, and Universal on the books, the MPDA sings from the same sheet as the MPAA and MPA. It also hopes to achieve in New Zealand what its counterparts have achieved in Europe and Australia but cannot on home soil – mass pirate site blocking.

In a release heralding the New Zealand screen industry’s annual contribution of around NZ$1.05 billion to GDP and NZ$706 million to exports, MPDA Managing Director Matthew Cheetham says that despite the successes, serious challenges lie ahead.

“When we have the illegal file sharing site the Pirate Bay as New Zealand’s 19th most popular site in New Zealand, it is clear that legitimate movie and TV distribution channels face challenges,” Cheetham says.

MPDA members in New Zealand

In common with movie bosses in many regions, Cheetham is hoping that the legal system will rise to the challenge and assist distributors to tackle the piracy problem. In New Zealand, that might yet require a change in the law but given recent changes in Australia, that doesn’t seem like a distant proposition.

Last December, the New Zealand government announced an overhaul of the country’s copyright laws. A review of the Copyright Act 1994 was announced by the previous government and is now scheduled to go ahead this year. The government has already indicated a willingness to consider amendments to the Act in order to meet the objectives of New Zealand’s copyright regime.

“In New Zealand, piracy is almost an accepted thing, because no one’s really doing anything about it, because no one actually can do anything about it,” Cheetham said last month.

It’s quite unusual for Hollywood’s representatives to say nothing can be done about piracy. However, there was a small ray of hope this morning when Cheetham said that there is actually one option left.

“There’s nothing we can do in New Zealand apart from site blocking,” Cheetham said.

So, as the MPDA appears to pin its hopes on legislative change, other players in the entertainment industry are testing the legal system as it stands today.

Last September, Sky TV began a pioneering ‘pirate’ site-blocking challenge in the New Zealand High Court, applying for an injunction against several local ISPs to prevent their subscribers from accessing several pirate sites.

The boss of Vocus, one of the ISP groups targeted, responded angrily, describing Sky’s efforts as “dinosaur behavior” and something one would expect in North Korea, not in New Zealand.

“It isn’t our job to police the Internet and it sure as hell isn’t SKY’s either, all sites should be equal and open,” General Manager Taryn Hamilton said.

The response from ISPs suggests that even when the matter of site-blocking is discussed as part of the Copyright Act review, introducing specific legislation may not be smooth sailing. In that respect, all eyes will turn to the Sky process, to see if some precedent can be set there.

Finally, another familiar problem continues to raise its head down under. So-called “Kodi boxes” – the now generic phrase often used to describe set-top devices configured for piracy – are also on the content industries’ radar.

There are a couple of cases still pending against sellers, including one in which a budding entrepreneur sent out marketing letters claiming that his service was better than Sky’s offering. For seller Krish Reddy, this didn’t turn out well as the company responded with a NZ$1m lawsuit.

Generally, however, both content industries and consumers are having a good time in New Zealand but the MPDA’s Cheetham says that taking on pirates is never easy.

“It’s been called the golden age of television and a lot of premium movies have been released in the last 12 or 18 months. Content providers and distributors have really upped their game in the last five or 10 years to meet what people want but it’s very difficult to compete with free,” Cheetham concludes.

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