The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In Monsarrat v. Newman, decided yesterday by Judge Richard G. Stearns (D. Mass.), plaintiff alleged:
On April 4, 2017, the social networking site LiveJournal revised its terms and conditions of service to comply with Russian law. Because Russian law permitted censorship of certain content, Newman, the moderator of a Davis Square (Somerville, MA)-specific LiveJournal community, decided to move the group to Dreamwidth, a social networking site that was not subject to Russian censorship. On April 30, 2017, Newman copied every post from the Davis Square LiveJournal community to Dreamwidth. Monsarrat filed suit in this court on April 28, 2020, asserting claims of copyright infringement and defamation related to the republication of these posts….
The court rejected the copyright claim on fair use grounds:
Monsarrat raises a copyright infringement claim against Newman involving the republication of a comment he originally posted in the Davis Square LiveJournal community in 2010, reproduced below.
Violation of LiveJournal abuse policies
February 6 2010, 21:03:40 UTC
LiveJournal's abuse policies are at http://www.livejournal.com/abuse/policy.bml
Under the section "Harassment", it says that "If a user makes a statement which encourages or incites others to harass another person in any way, access to that content will be disabled. This can also extend to entries in which harassment has not been explicitly called for, but is implied, at the discretion of the Abuse Prevention Team."
This is it. I'll give everyone here until Monday at 12pm to remove your comments from this board. At that point, I'm collecting every single one of them. I have already filed an abuse report with LiveJournal but won't call them until Monday at 12pm.
Monsarrat asserts that Newman's reproduction of this post on Dreamwidth in 2017 infringed his intellectual property rights and entitles him to damages. Newman contends that Monsarrat has failed to state an actionable claim because the allegations in the FAC establish his entitlement to a fair use defense.
"Fair use 'creates a privilege for others to use the copyrighted material in a reasonable manner despite the lack of the owner's consent.'" The Copyright Act codifies four non-exclusive factors relevant to the fair use inquiry:
(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.
Here, drawing all reasonable inferences in Monsarrat's favor, the court agrees that the FAC establishes Newman's entitlement to a fair use defense as a matter of law. As to the first factor, it is clear from the face of the FAC (and from the plain text of the post and its reproduction, that Newman did not publish the copyrighted post for the same purposes for which Monsarrat initially created it. See Soc'y of Holy Transfiguration Monastery, Inc. v. Gregory (1st Cir. 2012) (considering as part of the first factor "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"). Monsarrat submitted the original post to highlight LiveJournal's harassment policy and demand deletion of other posts on the community website which he viewed as violative. The Dreamwidth reproduction, on the other hand, was created solely for historical and preservationist purposes. Monsarrat's post, moreover, was just one of several hundred posts copied by Newman and was not used to promote traffic to the new website.
Turning to the second factor, the "nature of the copyrighted work," the balance again tips in Newman's favor. The post largely repeats the LiveJournal harassment policy, a factual matter, and the court cannot reasonably infer under these circumstances that the warning in the final paragraph, for contributors to delete their posts in light of this policy, transformed otherwise factual matter into "a creative work enjoying broader copyright protection." In any event, the post was published on a public forum, so the "right of first publication" is not implicated.
The third factor, "the amount and substantiality of the portion used in relation to the copyrighted work as a whole," "focus[es] upon whether the extent of … copying is consistent with or more than necessary to further the purpose and character of the use." This factor is neutral. Newman copied Monsarrat's post in full, but a full reproduction is consistent with historical and preservationist purposes.
Finally, the fourth factor, "the effect of the use upon the potential market for or value of the copyrighted work"—"the single most important element of fair use"—weighs against Monsarrat. There is no plausible market for the copyrighted post and thus no likelihood that Newman's reproduction could have any harmful market consequences.
In sum, because it is clear from the face of the FAC that three out of the four fair use factors favor Newman and that the remaining factor can at best be deemed neutral, the court finds Newman entitled to the fair use defense as a matter of law. It accordingly allows the motion to dismiss the copyright infringement claim.
And the court rejected the defamation claim on 47 U.S.C. § 230 grounds:
Monsarrat also raises a defamation claim against Newman based on his republication of certain posts from the Davis Square LiveJournal community on Dreamwidth….
Section 230 of the CDA provides, in relevant part, that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" and that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." … An "information content provider" is "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."
Here, Monsarrat fails to plausibly allege that Newman participated in the creation or development of the allegedly defamatory statements. Indeed, in his opposition, he concedes that "Newman did not originally compose or write any of the original defamatory statements" but instead merely "copie[d] … defamatory statements published many years ago." His argument for liability relies on Newman having taken "ownership of the collection of defamatory speech" by republishing the statements on "an entirely different website." But this is no basis on which the court can impose liability…. "[R]epublishing an already-existing user-submitted comment, without altering the content of that comment, does not materially contribute to its allegedly defamatory nature."
Both analyses sound right to me, as to the facts in this case.