Intellectual Property

Why Playboy's Take On Hyperlinks Is A Risky Proposition

It’s an interesting argument, but as you will see, it’s a naked one.

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For most of us, surfing the internet is a daily habit, and in doing so, most of us are hyperlinking to content at some point while doing so.  Whether looking up a term linked within an article, or jumping to another page (or website) referenced within it, hyperlinking (and the associated hypertext associated with it) is a fundamental part of the internet.  At its core, it is a reference point to data elsewhere on the web that a user can directly access by pointing, clinking, or hovering over the link.  It provides a quick an easy means of accessing other content by “jumping” directly to it.  Without question, using the internet would not be the same without hyperlinking to content… period.  Unfortunately, Playboy Entertainment Group (“Playboy”), an iconic brand known for stripping away more than social norms, is now looking to strip away current caselaw regarding this online process.

Hyperinking to copyrighted content on the web is nothing new, but liability for linking to copyrighted content would change if Playboy has anything to say about it.  At issue is a hyperlink by the blog Boing Boing to a unauthorized collection of Playboy centerfolds uploaded without Playboy’s permission to YouTube and Imgur.  Boing Boing’s post, titled “Every Playboy Playmate Centerfold Ever,” encouraged its readers to visit the hyperlinked content to  “see how our standards of hotness, and the art of commercial erotic photography, have changed over time.” Boing Boing did not upload the content, nor did it host the content — its only connection to the content was a hyperlink on its ad-serviced website.  Apparently, that was enough for Playboy to sue the blog’s holding company Happy Mutants, LLC for copyright infringement.

Playboy is not one to shy away from pushing boundaries,  so it is no surprise they seek to push the limits of copyright infringement. Their argument? According to the complaint, Playboy alleges that by redirecting blog readers to view the “unauthorized” collection of centerfold images, Happy Mutants (and the other defendants) “generate[s] revenue through the advertising on the website pages bearing the [images], as well as through any referral links to   external websites on those pages.”   In so doing, Playboy alleges that Happy Mutants et als. are contributing to the underlying infringement.  It’s an interesting argument, but as you will see, it’s a naked one.

The problem for Playboy is that caselaw is fairly well established in this area — a hyperlink to copyrighted content hosted or uploaded by a third party does not constitute copyright infringement. In Perfect 10, Inc. v. Amazon, Inc., 508 F.3d 1146 (9th Cir. 2007), Perfect 10 alleged that Google’s web crawling of third-party sites hosting Perfect 10’s images and commensurate indexing of thumbnail images of such explicit content directly infringed its rights, and that linking to such content contributed to such infringement.  The Ninth Circuit overturned a district court holding in Perfect 10’s favor on direct infringement (holding that Google’s hyperlinks from its image search engine constituted a fair use of Perfect 10’s images because the use was fundamentally transformative), but upheld the district court’s ruling with respect to hyperlinks — the infringing sites existed prior to Google, and since Google exercised no control over such sites (i.e., only pointing to the content and not hosting it), it could not be held liable for contributory or vicarious copyright infringement.

I can understand Playboy’s concern, but since when does attacking the messenger trump shutting down the actual third-party websites hosting the allegedly infringing content?  Oddly, Playboy did so — it sent notices under the Digital Millennium Copyright Act (DMCA) demanding that the infringing content be removed, and both sites did so.  Of course, the DMCA also shields those sites from being liable for damages for such hosting under the DMCA’s “safe harbor” provisions, so it appears that Playboy sought to take the clothes off of the next person it could identify (Happy Mutants, LLC) as opposed to “Does 1 – 10” in the complaint (which we presume Playboys is still seeking to identify).  As a lawyer, I understand the frustration in trying to get a client made whole under such circumstances, but there just aren’t a lot of clothes on this argument. The sites adhered to the DMCA takedown notice, and the infringing content was taken down. If Playboy wants to shutdown the hosting (or posting) of infringing content, then message sent and delivered.  Going after Happy Mutants goes a step too far, and could arguably stifle linking to third-party websites that legitimately host Playboy content.  I realize that Playboy may wish for the links to directly reference their website content, but the whole reason this happened was because a compilation of their  centerfolds was made available.  If anything, Playboy should have taken the cue and done so themselves.

Worse, where would the line be drawn if Playboy’s arguments were allowed to stand?  Just last year, a photographer working for Getty Images took a photo of Tom Brady that was uploaded to Twitter without consent, with the picture and tweet later picked up and embedded by certain news organizations including but not limited to the Boston Globe.  Vicarious or contributory copyright infringement by the news organizations?  That case is still working its way through the courts, but I wouldn’t bet on it.  Journalistic fair use considerations aside, if the linking arguments are allowed to succeed, anyone linking to third-party content could foreseeably be held vicariously liable just for doing so — a dangerous prospect indeed.

As you can see, morphing the copyright caselaw on hyperlinking to permit contributory or vicarious infringement ignores well established caselaw that draws a line at imputing intent to actually facilitate infringement.  In every sense, it seems that Playboy’s contributory and vicarious infringement claims are a risky proposition at best.  As Playboy’s arguments work their way through the court process, let’s hope that this attempt to upend established linking law is laid bare for all to see.  If so, I promise you I will link to it.

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Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

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