A federal appeals court yesterday agreed with a lower-court judge that Ron Newman of Somerville neither libeled Johnny Monsarrat nor infringed on his copyright in postings on an online forum that Newman ran.
This is the second time in nine years that Monsarrat has sued Newman (ed. note: Yes, our Ron Newman) over posts in what was originally the Davis Square LiveJournal. Monsarrat agreed to withdraw the first lawsuit - which also named a local reporter and 100 LiveJournal users - then decided he needed to sue again after Newman migrated the forum from the Russian-owned LiveJournal to a Web host based in the US.
In his newest suit, Monsarrat alleged the move meant Newman was now essentially the author of allegedly libelous posts and that the move meant Newman violated the copyright Monsarrat got for something he himself posted on the forum: A warning to other users he would sue them if they did not immediately take down comments he claimed were libelous. At the heart of the issue was a Davis Square LiveJournal discussion about Monsarrat's arrest following a house party he threw.
Last year, a judge in US District Court in Boston dismissed the suit ruling that Newman was protected under a law, known as Section 230, against libel claims over content posted by other people and that Newman was not attempting to somehow profit off of Monsarrat's copyrighted warning or even to use it to drum up traffic for the newly moved forum.
In its ruling, the Court of Appeals for the First Circuit in Boston agreed.
[Newman] 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.
The court said that merely moving the allegedly defamatory comments from one Web host to another was not a libelous act and pointed to a decision by its counterpart court on the West Coast involving Yelp posts that came to the same conclusion.
And it said that moving the posts from one host to another did not reset the statute of limitations on the old posts - which dated to 2010 - on a new host in this case, because, again, Newman was never responsible for the allegedly harmful posts to begin with.
As for the copyrighted warning, the court noted that part of the message that Monsarrat somehow got a copyright for wasn't even his wording to begin with - it was a cut and paste from LiveJournal's terms of service. But aside from that, the court found that moving the specific thread that included the warning was covered under the "fair use" clause of copyright law, which lets somebody write about another person's work.
The copyrighted warning:
Simply by looking at the copyrighted work, its purpose as alleged in the complaint, and what Monsarrat concedes to be the circumstances and nature of its copying, we can see no plausible argument that Newman has not established fair use.
The court continues that to conclude Newman was covered by fair use, it has to look at several factors, including whether the work in question has any value - the court concluded, as Monsarrat in fact conceded, it had no monetary value - and whether its reuse was for the same purpose meant by the original author. The court sternly concluded that Monsarrat was either legally wrong or trying to pull a funny, and the court said it doubted the latter:
Monsarrat's goal in authoring his short, time-sensitive work was plainly to encourage users in 2010 to immediately stop harassing him. Toward that end, he highlighted LiveJournal's abuse policy and threatened to take imminent action against them. Monsarrat cannot claim with a straight face that Newman's copying -- seven years later and on a different platform -- was aimed at the same purpose.
In 2017, a judge dismissed another suit he brought against a separate Web site.