Monsarrat v. Newman

28 F.4th 314

Jonathan MONSARRAT, Plaintiff, Appellant,

v.Ron NEWMAN, Defendant, Appellee.

No. 21-1146

United States Court of Appeals, First Circuit.

March 10, 2022

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.

Before Kayatta, Lipez, and Gelpí, Circuit Judges.

KAYATTA, Circuit Judge.

Ron Newman, a moderator of a neighborhood's online forum, copied the forum's discussion threads and then reposted them to a new online platform. The reposted threads included comments that allegedly defamed the plaintiff Jonathan Monsarrat. The threads also included a communication by Monsarrat for which he had obtained a registered copyright. Monsarrat alleges that Newman is liable for defamation and for copyright infringement arising from those actions. Granting a motion to dismiss the complaint, the district court held that Newman established two affirmative defenses to Monsarrat's claims: immunity from liability under section 230 of the Communications Decency Act as to Monsarrat's defamation claim and fair use as to Monsarrat's copyright claim. For the following reasons, we agree and affirm the dismissal of Monsarrat's complaint.

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 users, writing under pseudonyms, made several defamatory posts concerning Monsarrat on the Davis Square forum, including statements accusing Monsarrat of being a "sexual predator" and a "child predator." Monsarrat responded with a pair of lawsuits (unrelated to the present action) -- one in 2013 seeking damages for the defamatory posts and another in 2017 seeking the removal of a different webpage that referenced the posts.

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. Neither party contends we need know more about the precise technical means by which the content was moved.

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 Fed. R. Civ. Pro. 12(b)(6). The district court granted Newman's motion. Monsarrat v. Newman, 514 F. Supp. 3d 386, 389 (D. Mass. 2021). As to Monsarrat's defamation claim, the district court held that Newman was immune from liability for his republication of the allegedly defamatory statements because Newman fell within the safe harbor provided by section 230 of the Communications Decency Act, 47 U.S.C. § 230. Monsarrat, 514 F. Supp. 3d at 393. As to Monsarrat's copyright claim, the court found that, based on the operative complaint, Newman's reproduction of Monsarrat's post constituted fair use -- a statutory exception to the otherwise exclusive right that copyright law affords to copyright holders. Id. at 392. Monsarrat then timely filed this appeal.

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 and "may affirm an order of dismissal on any basis made apparent by the record." McCloskey, 446 F.3d at 266.

Affirmative defenses may be raised on a motion to dismiss under Rule 12(b)(6) so long as the facts establishing the defense are clear from the face of the complaint as supplemented by "matters fairly incorporated within it and matters susceptible to judicial notice." Zenon v. Guzman, 924 F.3d 611, 616 (1st Cir. 2019) (quoting In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003) ). Dismissal based on an affirmative defense is appropriate only where there is " ‘no doubt’ that the plaintiff's claim is barred by the raised defense." Id. (quoting Blackstone Realty LLC v. FDIC, 244 F.3d 193, 197 (1st Cir. 2001) ).

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, 47 U.S.C. § 230, shields Newman from liability for republishing allegedly defamatory posts concerning Monsarrat. Section 230 states 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." Id. § 230(c)(1). It further provides 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." Id. § 230(e)(3).

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 47 U.S.C. § 230(c)(1) ).¹ We have explained that immunity under section 230 "should be broadly construed." Id. at 419 ; accord Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 18 (1st Cir. 2016).

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." 47 U.S.C. § 230(c)(1). We have explained that a "key limitation" to section 230 immunity is that it "only applies when the information that forms the basis for the state law claim has been provided by ‘another information content provider.’ " Lycos, 478 F.3d at 419 (emphasis removed) (quoting 47 U.S.C. § 230(c)(1) ). A user or provider of an interactive computer service remains liable for its own speech. Cf. id. at 419–20. Accordingly, if Newman were himself an "information content provider" of the allegedly defamatory posts, then Monsarrat's state law claim would not be based only on "information provided by another information content provider" and section 230 would present no bar to liability.

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." 47 U.S.C. § 230(f)(3). We have emphasized that this definition is "broad" and encompasses "even those who are responsible for the development of content only ‘in part.’ " Lycos, 478 F.3d at 419. It is undisputed that Newman did not create the original allegedly defamatory posts on LiveJournal. The key question then is whether Newman -- by reposting to Dreamwidth a lengthy thread including libelous information -- was nonetheless "responsible, in whole or in part," for the "development of" that information, such that he is liable as an information content provider.

Here, Newman 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, Newman did nothing to contribute to the posts’ unlawfulness beyond displaying them on the new Dreamwidth website.

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 47 U.S.C. § 230(c)(1) ). Acc...