JONATHAN MONSARRAT, Plaintiff, Appellant, v. RON NEWMAN, Defendant, Appellee.
No. 21-1146
United States Court of Appeals For the First Circuit
March 10, 2022
Hon. Richard G. Stearns, U.S. District Judge
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Richard A. Goren, with whom The Law Office of Richard Goren, Ryan D. Sullivan, and Sullivan Legal, PC were on brief, for appellant.
Dan Booth, with whom Dan Booth Law LLC was on brief, for appellee.
I.
We start by reciting the essential facts as alleged in Monsarrat‘s complaint, supplemented by relevant undisputed items. See McCloskey v. Mueller, 446 F.3d 262, 264 (1st Cir. 2006). Between 2002 and 2017, residents of Davis Square in Somerville, Massachusetts, used the Russian-owned social networking platform LiveJournal as an online bulletin board and community forum for topics of interest to the neighborhood. Monsarrat, an entrepreneur who develops augmented reality video games, was a member of this online community. Beginning in 2010, anonymous
In April 2017, LiveJournal revised its terms of service to comply with Russian law, which permits censorship of certain online content. After this change, Newman, a moderator for the Davis Square forum, decided to move the forum from LiveJournal to another social networking platform called Dreamwidth, which was not subject to Russian censorship and was open to content no longer welcome on LiveJournal after its terms of service revision. To move the Davis Square forum from LiveJournal to Dreamwidth, Newman copied the forum‘s discussion threads from the LiveJournal website and reposted them on the new Dreamwidth website. The threads as reposted in toto on the new host included both the allegedly defamatory posts relating to Monsarrat as well as a post authored by Monsarrat for which he had obtained a certificate of registration from the United States Copyright Office. The posts copied to Dreamwidth from LiveJournal appear to be substantively unchanged, with the original authors, dates, and message intact.
Newman‘s copying of this content from LiveJournal to Dreamwidth prompted Monsarrat to sue Newman in federal court for defamation under Massachusetts law and copyright infringement. Newman moved to dismiss for failure to state a claim on both counts. See
II.
We review the district court‘s dismissal for failure to state a claim de novo. Universal Commc‘n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007). In conducting this assessment, we are not limited by the district court‘s reasoning
Affirmative defenses may be raised on a motion to dismiss under
III.
We consider Newman‘s entitlement to two affirmative defenses: immunity under section 230 (as to Monsarrat‘s state law defamation claim) and fair use (as to Monsarrat‘s copyright claim).
A.
We first assess Monsarrat‘s challenge to the district court‘s conclusion that section 230 of the Communications Decency Act,
Accordingly, a defendant is shielded from liability for a state law claim if:
(1) [the defendant] is a “provider or user of an interactive computer service“; (2) the claim is based on “information provided by another information content provider“; and (3) the claim would treat [the defendant] “as the publisher or speaker” of that information.
Lycos, 478 F.3d at 418 (quoting
Because Monsarrat does not dispute that Newman qualifies as a “user” under section 230, we need only address the second and third elements of our test.
1.
We begin with the second element, which turns on whether Monsarrat seeks to hold Newman liable for “information provided by another information content provider.”
Section 230 defines “information content provider” to mean “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”
Monsarrat nevertheless argues that Newman is responsible for the allegedly defamatory posts, even though they were initially authored by third parties, as it was Newman who posted the content on Dreamwidth, a different interactive computer service with a different audience. The Ninth Circuit rejected this precise line of reasoning in Kimzey v. Yelp! Inc., 836 F.3d 1263, 1271 (9th Cir. 2016) (“[P]roliferation and dissemination of content does not equal creation or development of content.“). There, our sister circuit held that the online platform Yelp was not liable for its “downstream distribution” to a separate search engine of content generated by a third party. Id. at 1270. As the court explained, “[n]othing in the text of [section 230] indicates that immunity turns on how many times an interactive computer service publishes ‘information provided by another information content provider.‘” Id. (quoting
Monsarrat also contends that Newman‘s republication of posts to Dreamwidth “developed” the defamatory information by turning non-actionable libel (for which the statute of limitations had run) into actionable libel. However, Monsarrat‘s argument misses the distinction between what makes libel substantively wrongful and what makes a claim for libel procedurally actionable. A statute of limitations plays no role in ascertaining whether conduct is wrongful. Rather, it merely sets the deadline by which a legal challenge to that conduct need be initiated. Here, the relative recency of the reposting may mean that Newman has no limitations defense. But it says nothing at all about whether he needs such a defense.
2.
We consider next whether Monsarrat‘s defamation claim seeks to treat Newman as the publisher of the information at issue. The answer is plainly yes. Monsarrat‘s complaint expressly seeks to make Newman liable for “publish[ing] on Dreamwidth” the allegedly defamatory material.
The only authority Monsarrat cites in support of his contrary position is language from the Fourth Circuit‘s decision in Zeran v. America Online, Inc. supposedly confining the reach of section 230 immunity to an online publisher‘s exercise of its “traditional editorial functions.” 129 F.3d 327, 330 (4th Cir. 1997). But even if his reading were accurate, Monsarrat misquotes Zeran by omitting that one of the described “traditional editorial functions” is determining whether to “publish” certain information.2 Id. Newman‘s decision to move user posts from LiveJournal to Dreamwidth naturally involved a decision about what content to publish on the new platform. Cf. Backpage.com, 817 F.3d at 21 (explaining that “choices about what content can appear on the website and in what form[] are editorial choices that fall
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With all three elements undoubtedly satisfied on the face of Monsarrat‘s complaint as fairly supplemented by its referenced writings, we affirm the district court‘s holding that Newman is entitled to immunity under section 230 for his republication of the allegedly defamatory posts from LiveJournal to Dreamwidth.
B.
We next consider Monsarrat‘s copyright claim. In the middle of a lengthy discussion thread on the Davis Square LiveJournal forum, Monsarrat posted the following message in February 2010:
When Newman migrated the Davis Square forum to the more accommodating Dreamwidth platform seven years later, he copied
Fair use is a statutory limitation to the otherwise exclusive rights enjoyed by copyright holders. See
To ascertain fair use, Congress has directed that we consider the following non-exclusive factors in assessing a fair use defense:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
1.
First, we look to “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”
Our task under the first prong is to assess “whether and to what extent the new work is ‘transformative,‘” that is, “whether the new work merely supersedes the objects of the original creation” or whether it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”
Gregory, 689 F.3d at 59-60 (quoting Campbell, 510 U.S. at 579).
Monsarrat argues that his pleading -- even as supplemented by fairly incorporated documents and concessions -- does not allow us to determine with sufficient certainty Newman‘s purpose in reposting Monsarrat‘s copyrighted work from the Davis Square LiveJournal forum to Dreamwidth. Indeed, Monsarrat contends that his complaint plausibly alleges that Newman copied the thread containing Monsarrat‘s post “as an integral part of [Newman‘s] defamatory statements falsely accusing the Plaintiff of despicable crimes.” To this extent, Monsarrat fairly complains that the district court overreached when it found that Newman‘s reposting of the thread was “solely for historical and preservationist purposes.” Monsarrat, 514 F. Supp. 3d at 391.
Another consideration in our assessment of the purpose and character of Newman‘s use is whether the “use is of a commercial nature.”
Newman is aided here by Monsarrat‘s repeated concession at oral argument that the copyrighted work has no commercial value. To be sure, we have noted that the commercial/noncommercial inquiry encompasses not just “dollars and coins” but “other non-monetary calculable benefits or advantages” as well. Gregory, 689 F.3d at 61. But Monsarrat does not claim that Newman reproduced his copyrighted post to accrue any profit -- financial or otherwise -- nor is there any indication of such a benefit on either the face of the complaint or the copyrighted work and resulting reproduction.
Monsarrat‘s only response is to press his claim that Newman‘s copying of posts from LiveJournal to Dreamwidth was aimed at defaming him. He argues that such a purpose -- even if transformative or noncommercial -- merits no weight because it implies bad faith on the part of Newman. Yet while Monsarrat explains how the republication of the allegedly defamatory comments might be said to be in bad faith for
Considering the foregoing, we find that the pleadings establish that Newman‘s purpose is noncommercial and at least marginally transformative. Accordingly, we conclude that the first factor leans in favor of fair use, although we give it little weight.
2.
Next, we assess “the nature of the copyrighted work.”
Monsarrat argues on appeal that even his unremarkable post about LiveJournal‘s abuse policy qualifies as a creative and literary work under the second fair use factor. He relies on the fact that the Copyright Office, in issuing a certificate of registration to Monsarrat for the work, determined that it met the requisite degree of creativity to satisfy the originality requirement for copyright protection. Monsarrat contends, in any event, that it was premature on a motion to dismiss for the district court to adjudge the nature of his work.
It is plain from the face of this copyrighted work that it lies much more on the factual and informational side of the line than near the “core” of copyright protection, Campbell, 510 U.S. at 586. Indeed, as the district court noted, the bulk of
3.
Third, we consider “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.”
Even verbatim copying can constitute fair use if it is “consistent with or [no] more than necessary to further the ‘purpose and character of the use.‘” Id. (quoting Castle Rock Ent., Inc. v. Carol Publ‘g Grp., Inc., 150 F.3d 132, 144 (2d Cir. 1998)). Thus, we have held that the third factor is “of little
Monsarrat offers no plausible rebuttal to the contention that it would have made scant sense for Newman to take just part of the copyrighted post. Indeed, given that Newman faithfully duplicated the rest of the thread containing Monsarrat‘s work, consisting of more than 400 comments, selectively copying over only a portion of Monsarrat‘s post would have misrepresented what Monsarrat wrote. All in all, the fact that the work was copied in its entirety adds little if anything to the brief against a finding of fair use. Accordingly, the third factor favors neither side.
4.
Finally, we assess “the effect of the use upon the potential market for or value of the copyrighted work.”
The district court found that this factor weighs in favor of fair use because “[t]here is no plausible market for the copyrighted post and thus no likelihood that Newman‘s reproduction could have any harmful market consequences.” Monsarrat, 514 F. Supp. 3d at 392. Monsarrat does not contest this assertion in his briefs and, indeed, expressly conceded at oral argument that there is no potential market for his work. Rather, Monsarrat contends that the fourth fair use factor contemplates an assessment of not just the potential market but also the inherent value of the copyrighted work. He suggests that Newman‘s use diminishes Monsarrat‘s property interest in the post.
Monsarrat is certainly correct that the fourth element of the fair use analysis references the “value of the copyrighted work” and not just the “potential market” for that work.
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Three factors weigh in favor of fair use -- including “the single most important element of fair use,” Harper & Row, 471 U.S. at 566 -- and one factor is neutral. This leaves us with no doubt that Newman is entitled to his fair use defense. Accordingly, the district court‘s dismissal of Monsarrat‘s copyright claim was proper.
IV.
We affirm the judgment of the district court.