Davis Square in Somerville, Massachusetts, is a groovy place. Between 2010 and 2017, a group of its residents used the Russian-owned social networking platform LiveJournal to host a community forum dedicated to topics of interest to the neighborhood. LiveJournal's decision, in 2017, to update its policies to require users to comply with Russian law - which, reportedly, makes publishers of blogs with more than 3,000 daily visitors liable for the dissemination of unverified information or "extremist" content - led the defendant, who served as a moderator, to move the forum to Dreamwidth, a competing platform with Guiding Principles that embrace freedom of speech, transparency and respect. To accomplish the move, the defendant copied the forum’s old discussion threads onto Dreamwidth, leaving the original authors, dates, and messages intact. Following this migration, the plaintiff sued the defendant, alleging (1) defamation, arising from the defendant's republication of posts, written by others, that accused him of being a sexual predator, and (2) copyright infringement based on the defendant's unauthorized republication of a single post that the plaintiff had contributed to the forum years earlier. The district court dismissed both claims, and the First Circuit affirmed.

Defamation and the CDA

The plaintiff’s defamation claims were barred by Section 230 of the Communications Decency Act, 47 U.S.C. § 230, which provides immunity for website providers and users for certain claims (including defamation) that arise from content posted by others. Under Section 230, a defendant is shielded from liability 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.

It was undisputed that the defendant was a "user" of an interactive computer service (the first prong), and it was obvious that the plaintiff's claims sought to treat the defendant as the publisher of the allegedly defamatory statements (the third prong). Thus, the key question was whether the defendant's act of reposting the allegedly defamatory posts made him an "information content provider" of those posts under the second prong.

Section 230 defines an “information content provider” as “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.” 47 U.S.C. § 230(f)(3). The court concluded that the defendant didn't fall within this definition:

"Here, [the defendant] copied the allegedly defamatory posts from LiveJournal to Dreamwidth verbatim. He did not encourage or compel the original authors to produce the libelous information. And, in the manner and form of republishing the posts, he neither offered nor implied any view of his own about the posts. In short, [the defendant] did nothing to contribute to the posts’ unlawfulness beyond displaying them on the new Dreamwidth website."

In support of its conclusion, the court cited Kimzey v. Yelp! Inc., 836 F.3d 1263 (9th Cir. 2016), where the Ninth Circuit held that Yelp! was not liable for its “downstream distribution” to Google of user-generated content originally posted on Yelp! (including star ratings, which essentially aggregate user reviews). The First Circuit agreed with the reasoning of Kimzey that, just as a provider (like Yelp) or a user (like the defendant) of an interactive computer service is immune from liability under Section 230 for defamatory content posted directly on that service, they likewise should be immune for disseminating the same content in essentially the same format to a different platform "as this action does not change the origin of the third-party content.”

Copyright Infringement and Fair Use

When the defendant moved the Davis Square forum to Dreamwidth, he copied a thread that included a post that the plaintiff had published on February 6, 2010. In that short post, consisting of just over 100 words, the plaintiff reminded forum participants of LiveJournal's anti-harassment policy and warned that he would take action if posts violating that policy were not removed promptly. Here is the post, in all its glory:

Like the district court, the First Circuit held that the defendant's republication of this post, in the context of the entire thread in which it was published originally, qualified as a fair use. Here is a quick summary of the court's analysis of the statutory factors (17 § U.S.C. 107):

  1. Purpose and Character of the Use. The plaintiff "fairly complain[ed] that the district court [had] overreached" by ruling that the plaintiff had reposted the thread “solely for historical and preservationist purposes.” While it may not be possible to determine, on the face of the complaint in the context of a motion to dismiss under Rule 12(b)(6), the precise reasons why the defendant had republished the plaintiff's post (and the entire forum) on Dreamwidth, his reasons for doing so plainly were different from the plaintiff's original purpose for publication - i.e., as an urgent plea to convince forum members to stop harassing him. "So, while we cannot be sure, given the present record, about the extent to which [the defendant's] work is transformative, it is at least minimally so." In addition, the defendant's use of the plaintiff's post was non-commercial, and the plaintiff's arguments that the defendant acted in bad faith were not cogent. Accordingly, the first factor favored a finding of fair use.
  2. Nature of the Copyrighted Work. The second factor weighed "strongly" in favor of fair use. The plaintiff's "unremarkable" post "lies much more on the factual and informational side of the line than near the 'core' of copyright protection." Approximately 50% of the post consists of a quote from LiveJournal's publicly accessible anti-harassment policy, to which the plaintiff can claim no rights, and the remainder "consists of brief workaday prose" in which the plaintiff simply warns forum members of potential consequences if they fail to remove the offending posts. 
  3. The Amount and Substantiality of the Portion Used. The third factor was neutral. Although the plaintiff's post was republished in its entirety - which typically would militate against a finding of fair use - it would have made no sense for the defendant to have copied only a portion of the plaintiff's post. "Indeed, given that [defendant] faithfully duplicated the rest of the thread containing [plaintiff's] work, consisting of more than 400 comments, selectively copying over only a portion of plaintiff's post would have misrepresented what plaintiff wrote."
  4. Effect Upon the Potential Market for or Value of the Copyrighted Work. The final factor weighed "strongly" in favor of fair use since the plaintiff conceded at oral argument that there was no potential market for his work, and he could not come up with any plausible argument as to how republication of his post impacted its "value."

With three factors weighing in favor of fair use and one neutral, the court was left with "no doubt" that the defendant was entitled to his fair use defense.

Monsarrat v. Newman, __ F.4th __, 2022 WL 714426 (1st Cir., March 10, 2022)