The US Court of Appeals for the First Circuit affirmed a district court’s decision to dismiss claims for defamation under the Communications Decency Act (CDA), 47 USC § 230, and for copyright infringement under the fair use doctrine. Monsarrat v. Newman, Case No. 21-1146 (Kayatta, Lipez, Gelpí, JJ.).
The parties’ dispute arose from a series of posts on a community message board. Residents of the Davis Square neighborhood in Massachusetts maintained a Live Journal forum for several years. In response to a revision of the Live Journal terms of service in 2017, Ron Newman, a member of the community, copied the entirety of the content from the Live Journal forum to another online platform: Dreamwidth. The copied content included a series of allegedly defamatory posts about Jonathan Monsarrat and a post that Monsarrat had copyrighted. Monsarrat sued Newman for both defamation and copyright infringement. Newman moved to dismiss the defamation claim under the CDA, § 230, and the copyright claim under the fair use doctrine. After the district court granted the motions, Monsarrat appealed.
The First Circuit first addressed the defamation claim under § 230. Newman argued that § 230 provided him immunity from defamation. Specifically, § 230 states “[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.” It also provides a shield from state law claims that would be “inconsistent with this section.” Courts apply a three-part analysis to determine whether a defendant is entitled to immunity under § 230:
- Is the defendant a “provider or user of an interactive computer service”?
- Is the claim based on “information provided by another information content provider”?
- Does the claim treat the defendant “as the publisher or speaker” of that information?
Monsarrat did not challenge the fact that Newman was a “user” under the first prong. Regarding the second prong, the analysis hinged on whether Newman was an “information content provider,” which in turn relied on whether Newman was responsible for the allegedly defamatory content in whole or in part. The factual record showed that Newman did nothing but copy the allegedly defamatory posts that had been created by another. Monsarrat unsuccessfully argued that Newman was responsible because Newman copied the posts from Live Journal to a different digital platform with an allegedly different audience. The First Circuit was not persuaded, ruling that providing essentially the same content on a different platform did not make a defendant responsible for that content under § 230. Regarding the third prong, Monsarrat’s complaint clearly alleged that Newman was acting as a publisher. The Court affirmed the dismissal of the defamation claim under § 230.
Monsarrat’s copyright claim related to a Live Journal post by Monsarrat in the Davis Square forum. He had created a post with a link to Live Journal’s harassment policy, a quotation from the policy and a brief message regarding his attempts to report the abuse he felt he had suffered by other members. Monsarrat subsequently filed for and received a copyright for the post. As with all the posts in the Davis Square forum, Newman reposted it in its entirety on Dreamwidth. Newman argued that this reposting constituted fair use under the copyright law.
The First Circuit evaluated the fair use claims using the non-exclusive factors provided in the statute: “(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.”
Regarding the first factor, Monsarrat admitted that the post had no commercial value but argued that the First Circuit should consider Newman’s alleged bad faith in reposting content that Monsarrat believed was defamatory. The Court rejected this argument, in part because Monsarrat could not provide any cogent argument as to how reporting Monsarrat’s own words could be defamatory to Monsarrat. Turning to the second factor, the Court looked to whether the work was creative or factual and whether it had been previously published. The Court rejected Monsarrat’s argument that since he had received a copyright registration, the post must be creative. The post also had indisputably been previously published. Under First Circuit law, the third factor is given little weight if copying less than all of a work would render the copy useless. Therefore, the third factor was neutral. Regarding the fourth and most important factor—the effect on the potential market for the copyrighted work—the Court determined that there was no reason to believe the work had any value. The Court, therefore, affirmed the dismissal of the copyright claim, as three factors favored Newman and one was neutral.
Practice Note: Under § 230, a defendant who simply copies information provided by another from one digital platform to a second digital platform is immune from defamation claims. Under the fair use doctrine of copyright law, where a copyrighted work has no commercial value and is factual rather than creative, a defendant is entitled to dismissal of the claim as a matter of law.