So, maybe you heard, or didn’t—or you don’t really care—that Playboy is suing Boing Boing (parent company Happy Mutants, LLC) for contributory copyright infringement. There are a couple of serious points to make about this case, but I want to address the funny part first because it actually informs the not funny parts.
The funny began when I read TorrentFreak’s* article highlighting the fact that Playboy’s complaint calls Boing Boing a clickbait site. It just so happens that I read the TF post after I read EFF’s motion to dismiss on behalf of Boing Boing, referring to the site’s enterprise as journalism. And that’s pretty funny because the example below is a typical “news article” on Boing Boing. This one happens to be about Andrew McCabe stepping down as Deputy Director of the FBI:
As you see, the “journalist” in this example has typed 69 words conveying the barest information he learned from a real news source; he’s shared a quote from NBC only slightly shorter than his own content; and he’s used a photo from the Reuters News Agency that’s bigger than all the text. In fact, by area, the “article” occupies roughly the same page space as the banner ads while providing the reader with a fraction of the information he could get from a news site—adding neither commentary nor insight nor color to the most rudimentary facts. And for extra funny, Boing Boing asserts a Creative Commons license even though one would be hard-pressed to find any protectable elements in an example like the above—the author having written five sentences so common in vocabulary and structure that I doubt even the site’s limited claim of protection under Creative Commons would hold up.
A sample like this is not journalism by any reasonable definition of the term so much as it is a time-wasting diversion for a reader who might actually want substantive news or commentary about McCabe’s imminent resignation. I know, one man’s meat and all that, but it seems fair to assert that this Boing Boing post, and many just like it, exist solely for the purpose of grabbing traffic to generate ad impressions while providing no distinctive value to the visitor.
But if Boing Boing and friends bristle at the term clickbait to describe this business model, perhaps they’d prefer Wasteful Aggregators of News and Knowledge. Y’know, WANKs. For practical purposes, let’s define a WANK as any site that functions as a tollbooth—a needless step between, for instance, a social media feed and a robust source of content like a news site. Rather than operate as creators of original content, WANKs harvest Pavlovian responses to headlines in order to funnel traffic through their tollbooths, generating revenue in the form of ad impressions. Sorta, like…clickbait.
A Quick Note on Contributory Infringement
Simply put, liability for contributory infringement exists when a party knowingly induces or encourages infringement, with or without prospective financial gain. In this particular case, I would assert that profiting from traffic is the only reason for the existence of WANKs like Boing Boing; but even if we were to broaden the meaning of journalism to encompass these sites, this does not change the legal analysis because the most serious journalists in the world can still infringe a copyright or be liable for contributory infringement—even while producing far more original work than a typical Boing Boing post.
Playboy Entertainment v. Happy Mutants
So what happened with Playboy was that somebody uploaded every playmate centerfold dating back to April 1960 (477 images) to the site Imgur. And upon discovery of this trove of unlicensed photos, Boing Boing’s intrepid news team produced one of its Pulitzer-melting articles with a headline cleverly titled “Every Playboy Playmate Centerfold Ever.” At issue is the fact that the article contained two links—one to the Imgur pages, the other to a YouTube video, made by someone who’d arranged the photos into a slide show. But lest you think this was just a cheap opportunity to leverage a third-party infringement just to drive traffic, note that the reporter did stay up late to write the following:
“Some wonderful person uploaded scans of every Playboy
Playmate centerfold to imgur. It’s an amazing collection,
whether your interests are prurient or lofty. Kind of amazing to
see how our standards of hotness, and the art of commercial
erotic photography, have changed over time.”
The EFF calls the publication of these words “transformative,” asserting that even if there were grounds for contributory infringement, which they insist are not present, this perceptive insight, with its melodic repetition of the word amazing, serves as the cornerstone of a fair use defense under the first factor. I know it seems like I’m still on the funny part, but this is the serious legal stuff and is central to Boing Boing’s defense that all they did was link to infringing content while commenting on it “as journalists.”
Now, my opinion of Boing Boing’s value doesn’t technically matter. And the opinion of a court should not matter either. We certainly do not want the courts or any other branch of government deciding what is and is not journalism (especially these days). And it is also true that the prospect of incurring liability simply by linking to content can imply potential hazards, though certainly not the existential threat to the internet that EFF and its colleagues seem to proclaim with relentless consistency.
At the same time, it is not reasonable for WANKs, or any other platform, to avoid liability for intentionally exploiting third-party infringement merely by means of attaching a glib comment and calling it “news reporting” protected by fair use. By EFF’s standards, I could post unlicensed photos on this blog with captions that say little more than, “This one’s my favorite!” and call it “transformative.” And that just ain’t right.
Again, even if we were generous enough to consider Boing Boing’s 44-word “standards of hotness” post a form of journalism, it still should not pass as “transformative” under the fair use test because the post does not actually use the original work to create a new expression by adding something new. Technically, the post could stand alone without the links. It would still be lame, but it wouldn’t be infringing. As it is, the central communication of the post is, “Dude, you should look at these photos, and here are the links.” Which sounds kinda contributory.
Of course, the real key to Boing Boing’s liability has less to do with the text in the post and more to do with the headline. When the unambiguous words Every Playboy Playmate Centerfold Ever appeared in social media feeds, the goal was to trigger the aforementioned Pavlovian response whereby users click the link expecting to see exactly what the headline promises. The brief interlude when the user might read the diminutive post does not serve to shield the fact that, as indicated by the headline, Boing Boing advertised, and then provided access to, infringing content for the sole purpose of drawing traffic to its pages.
This conduct should be more than sufficient to allege contributory infringement and allow this case to proceed. Meanwhile, I actually agree with Boing Boing’s defenders that this case gets to the heart of the internet—namely the heart of what sucks about the internet, which is populated by too many opportunistic platforms that do very little other than manipulate users and exploit work somebody else has produced. If WANKs like Boing Boing cannot operate without blanket immunity from responsibility—a dysfunctional policy that real journalists have never enjoyed—then the enterprise should fail. What society would lose in that bargain is impossible to imagine.
*POST CORRECTED: As first published, I called the TF post “defensive,” a reading into the article based on its headline, the editorial leanings of that site, and the anti-copyright views expressed by many of its readers’ comments. Upon hearing from TF and further review, it’s fair to say that Andy’s post is much more neutral than I first described.