514 F.Supp.3d 386
D. Mass.2021Background
- In April 2017 LiveJournal changed its terms to comply with Russian law; Ron Newman, moderator of a Davis Square LiveJournal community, moved the group to Dreamwidth and on April 30, 2017 copied every post to Dreamwidth.
- Jonathan Monsarrat sued in April 2020 alleging copyright infringement and defamation based on Newman's republication of community posts (including a 2010 post by Monsarrat).
- Newman moved to dismiss under Fed. R. Civ. P. 12(b)(6), asserting a fair use defense to the copyright claim and Section 230 immunity to the defamation claim.
- The court considered the FAC and incorporated public exhibits, declined to strike those exhibits, and applied the Twombly/Iqbal pleading standard.
- On copyright, the court found as a matter of law that Newman's republication was fair use (transformative, noncommercial preservation purpose; nature/fourth-factor favored defendant).
- On defamation, the court held Section 230 barred Monsarrat’s claim because Newman republished third‑party content but did not create or develop the allegedly defamatory statements; the complaint did not plausibly allege Newman was an information content provider.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Copyright infringement for republication of Monsarrat’s 2010 LiveJournal post | Monsarrat: Newman infringed by copying and republishing the post on Dreamwidth; seeks damages | Newman: Use is fair — transformative (historical/preservation), noncommercial, copied as part of a larger archive, no market harm | Court: Dismissed copyright claim — fair use as a matter of law (three factors favor defendant; market harm absent) |
| Defamation for republication of community posts | Monsarrat: By republishing the collection on a new site Newman ‘‘took ownership’’ and can be liable for defamatory content | Newman: §230 immunity — he is a user/provider of an interactive service and did not create or develop the defamatory content | Court: Dismissed defamation claim — §230 bars suit; republication alone does not make Newman an information content provider |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard — plausibility)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading standard — plausibility)
- Campbell v. Acuff‑Rose Music, Inc., 510 U.S. 569 (fair use factors and transformative use)
- Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (market harm is central fair‑use factor)
- Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (use of images as historical artifacts favors fair use)
- Soc’y of Holy Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 29 (First Circuit fair‑use analysis)
- Kelly v. Arriba Soft Corp., 336 F.3d 811 (different function of thumbnails supports fair use)
- Small Justice LLC v. Xcentric Ventures LLC, 873 F.3d 313 (burden/analysis for §230 at motion to dismiss)
- Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (§230 elements for immunity)
- Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (when a service provider becomes an information content provider)
- Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398 (republishing third‑party content does not automatically make operator an information content provider)