United States Court of Appeals For the First Circuit

No. 21-1146

JONATHAN MONSARRAT,

Plaintiff, Appellant,

v.

RON NEWMAN,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Kayatta, Lipez, and Gelpí, Circuit Judges.

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.

March 10, 2022 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,

(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

- 2 - 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.

- 3 - 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,

, 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,

. 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.

.

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.,

(1st Cir. 2007). In conducting this

assessment, we are not limited by the district court's reasoning

- 4 - and "may affirm an order of dismissal on any basis made apparent

by the record." McCloskey,

.

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,

(1st Cir.

2019) (quoting In re Colonial Mortg. Bankers Corp.,

(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."

(quoting Blackstone

Realty LLC v. FDIC,

(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,

, 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."

- 5 -

§ 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,

(quoting

(c)(1)).1 We have

explained that immunity under section 230 "should be broadly

construed."

; accord Jane Doe No. 1 v. Backpage.com,

LLC,

(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."

(c)(1). We

1 Section 230 contains a few exceptions, see, e.g.,

(e)(2) ("Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property."); however, none of those exceptions are applicable to this case.

- 6 - 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,

(emphasis removed)

(quoting

(c)(1)). A user or provider of an

interactive computer service remains liable for its own speech.

Cf.

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."

(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,

.

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.

- 7 - 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.,

(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.

. 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.'"

(quoting

(c)(1)). Accordingly, "[j]ust as Yelp

is immune from liability under [section 230] for posting user-

generated content on its own website, Yelp is not liable for

- 8 - 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."

We have cited to this language

in Kimzey favorably. See Small Just. LLC v. Xcentric Ventures

LLC,

, 322–23 (1st Cir. 2017). And we agree with its

interpretation of the scope of section 230 immunity, at least as

it pertains to Newman, who replicated the content and basic format

of the third-party LiveJournal posts on Dreamwidth. Cf.

Marshall's Locksmith Serv. Inc. v. Google, LLC,

,

1268–69 (D.C. Cir. 2019) (explaining that "the posting of third-

party content" from one website to another "is plainly within the

immunity provided by § 230").

Monsarrat also contends that Newman's republication of

posts to Dreamwidth "developed" the defamatory information by

turning non-actionable libel (for which the statute of limitations

had run) into actionable libel. However, Monsarrat's argument

misses the distinction between what makes libel substantively

wrongful and what makes a claim for libel procedurally actionable.

A statute of limitations plays no role in ascertaining whether

conduct is wrongful. Rather, it merely sets the deadline by which

a legal challenge to that conduct need be initiated. Here, the

relative recency of the reposting may mean that Newman has no

limitations defense. But it says nothing at all about whether he

needs such a defense.

- 9 - In sum, we find that Newman meets the second element of

our test; i.e., the claim against him is based on "information

provided by another information content provider."

2.

We consider next whether Monsarrat's defamation claim

seeks to treat Newman as the publisher of the information at issue.

The answer is plainly yes. Monsarrat's complaint expressly seeks

to make Newman liable for "publish[ing] on Dreamwidth" the

allegedly defamatory material.

The only authority Monsarrat cites in support of his

contrary position is language from the Fourth Circuit's decision

in Zeran v. America Online, Inc. supposedly confining the reach of

section 230 immunity to an online publisher's exercise of its

"traditional editorial functions."

(4th Cir.

1997). But even if his reading were accurate, Monsarrat misquotes

Zeran by omitting that one of the described "traditional editorial

functions" is determining whether to "publish" certain

information.2

Newman's decision to move user posts from

LiveJournal to Dreamwidth naturally involved a decision about what

content to publish on the new platform. Cf. Backpage.com,

(explaining that "choices about what content can appear

on the website and in what form[] are editorial choices that fall

2 Monsarrat's brief omits the word "publish" from its direct quote to Zeran (without using ellipses).

- 10 - within the purview of traditional publisher functions"). Thus,

Newman satisfies the third and final element of our test.

* * *

With all three elements undoubtedly satisfied on the

face of Monsarrat's complaint as fairly supplemented by its

referenced writings, we affirm the district court's holding that

Newman is entitled to immunity under section 230 for his

republication of the allegedly defamatory posts from LiveJournal

to Dreamwidth.

B.

We next consider Monsarrat's copyright claim. In the

middle of a lengthy discussion thread on the Davis Square

LiveJournal forum, Monsarrat posted the following message in

February 2010:

When Newman migrated the Davis Square forum to the more

accommodating Dreamwidth platform seven years later, he copied

- 11 - over the thread that included Monsarrat's February 2010 post. As

it turned out, Monsarrat had registered his rather prosaic threat

with the United States Copyright Office in 2012. He now complains

that Newman's copying of his post infringed his copyright. The

district court dismissed Monsarrat's copyright claim, finding

Newman's reproduction of Monsarrat's work constituted a "fair use"

permitted by copyright law. Monsarrat, 514 F. Supp. 3d at 392.

For the following reasons, we agree.

Fair use is a statutory limitation to the otherwise

exclusive rights enjoyed by copyright holders. See

("[T]he fair use of a copyrighted work . . . is not an

infringement of copyright."). It "creates a privilege for others

to use the copyrighted material in a reasonable manner despite the

lack of the owner's consent." Soc'y of Holy Transfig. Monastery,

Inc. v. Gregory,

(1st Cir. 2012) (quoting Weissmann

v. Freeman,

(2d Cir. 1989)). Fair use is an

"affirmative defense" for which its proponent -- in this case,

Newman -- bears the burden of proof. Campbell v. Acuff–Rose Music,

Inc.,

(1994). Accordingly, given that burden

allocation and the typical factual considerations necessary to

determine application of the defense, a motion to dismiss pursuant

to Rule 12(b)(6) generally provides an unaccommodating vehicle for

adjudicating fair use.

- 12 - Nevertheless, sometimes the defense of fair use is

capable of vindication on a motion to dismiss. See, e.g., TCA

Television Corp. v. McCollum,

(2d Cir. 2016);

Brownmark Films, LLC v. Comedy Partners,

(7th

Cir. 2012); Leadsinger, Inc. v. BMG Music Pub.,

(9th Cir. 2008). This appeal would appear to present another such

example: 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.

To ascertain fair use, Congress has directed that we

consider the following non-exclusive factors in assessing a fair

use defense:

(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.

. We evaluate fair use on a case-by-case basis and

weigh the factors "together in light of the purposes of copyright."

Núñez v. Caribbean Int'l News Corp.,

(1st Cir.

2000) (quoting Campbell,

).

- 13 - 1.

First, we look to "the purpose and character of the use,

including whether such use is of a commercial nature or is for

nonprofit educational purposes."

(1). As we have

explained:

Our task under the first prong is to assess "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."

Gregory, 689 F.3d at 59–60 (quoting Campbell,

).

Monsarrat argues that his pleading -- even as

supplemented by fairly incorporated documents and concessions --

does not allow us to determine with sufficient certainty Newman's

purpose in reposting Monsarrat's copyrighted work from the Davis

Square LiveJournal forum to Dreamwidth. Indeed, Monsarrat

contends that his complaint plausibly alleges that Newman copied

the thread containing Monsarrat's post "as an integral part of

[Newman's] defamatory statements falsely accusing the Plaintiff of

despicable crimes." To this extent, Monsarrat fairly complains

that the district court overreached when it found that Newman's

reposting of the thread was "solely for historical and

preservationist purposes." Monsarrat, 514 F. Supp. 3d at 391.

- 14 - The problem for Monsarrat is that we need not necessarily

determine Newman's actual purpose in copying the forum posts from

the LiveJournal platform to the Dreamwidth platform to conclude

that he reproduced Monsarrat's work for a fundamentally different

reason than that which led to its creation. 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. So, while

we cannot be sure, given the present record, about the extent to

which Newman's work is transformative, it is at least minimally

so. Cf. Bill Graham Archives v. Dorling Kindersley Ltd.,

(2d Cir. 2006) (displaying copyrighted images in a

timeline, even without additional commentary, was "transformative"

because it was "plainly different from the original purpose for

which they were created").

Another consideration in our assessment of the purpose

and character of Newman's use is whether the "use is of a

commercial nature."

(1). As the Supreme Court has

explained, "[t]he fact that a publication was commercial as opposed

to nonprofit . . . tends to weigh against a finding of fair use,"

Harper & Row Publishers, Inc. v. Nation Enters.,

, 562

- 15 - (1985), although commercial gain alone is not dispositive,

Campbell,

. We have explained, however, that this

element is of greater import "the lesser the transformative nature

of the work." Gregory,

; cf. Núñez,

.

Newman is aided here by Monsarrat's repeated concession

at oral argument that the copyrighted work has no commercial value.

To be sure, we have noted that the commercial/noncommercial inquiry

encompasses not just "dollars and coins" but "other non-monetary

calculable benefits or advantages" as well. Gregory,

. But Monsarrat does not claim that Newman reproduced his

copyrighted post to accrue any profit -- financial or otherwise -

- nor is there any indication of such a benefit on either the face

of the complaint or the copyrighted work and resulting

reproduction.

Monsarrat's only response is to press his claim that

Newman's copying of posts from LiveJournal to Dreamwidth was aimed

at defaming him. He argues that such a purpose -- even if

transformative or noncommercial -- merits no weight because it

implies bad faith on the part of Newman. Yet while Monsarrat

explains how the republication of the allegedly defamatory

comments might be said to be in bad faith for Rule 12(b)(6)

purposes, he offers no cogent rationale for why Newman's

reproduction of the copyrighted work itself (a post Monsarrat

himself authored) was intended to defame Monsarrat. On such a

- 16 - record, "we need not credit a plaintiff's '[t]hreadbare recitals

of the elements of a cause of action, supported by mere conclusory

statements.'" Alston v. Spiegel,

, 571 (1st Cir.

2021) (alteration in original) (quoting Ashcroft v. Iqbal,

(2009)). Thus, regardless of the role that Newman's

state of mind might play in the fair use analysis, we see no

credible allegation that his alleged infringement was in bad faith

as relevant to our fair use inquiry.3

Considering the foregoing, we find that the pleadings

establish that Newman's purpose is noncommercial and at least

marginally transformative. Accordingly, we conclude that the

first factor leans in favor of fair use, although we give it little

weight.

2.

Next, we assess "the nature of the copyrighted work."

(2). This factor "calls for recognition that some

works are closer to the core of intended copyright protection than

3 There is some question whether an alleged infringer's bad faith has much relevance to the fair use analysis. See Blanch v. Koons,

(2d Cir. 2006); cf. Campbell,

n.18. In any event, the kind of bad faith discussed in Harper & Row -- the only authority Monsarrat cites in support of his assertion that bad faith precludes fair use -- contemplates something akin to egregious intentional copying for commercial gain. See 471 U.S. at 562–63 (discussing the defendant's "intended purpose of supplanting the copyright holder's commercially valuable right of first publication" and its knowing exploitation of "a purloined manuscript").

- 17 - others, with the consequence that fair use is more difficult to

establish when the former works are copied." Campbell,

. We consider two elements: (1) whether the copyrighted

work is "factual or creative"; and (2) whether the copyrighted

work has "previously been published." Gregory,

.

The scope of fair use is narrower when works "fall closer to the

creative end of the copyright spectrum than the informational or

factual end" and when they have not previously been published.

at 61–62. Because there is no dispute that Monsarrat's post

was posted publicly on the Davis Square forum prior to Newman's

copying, our inquiry need only address the first element.

Monsarrat argues on appeal that even his unremarkable

post about LiveJournal's abuse policy qualifies as a creative and

literary work under the second fair use factor. He relies on the

fact that the Copyright Office, in issuing a certificate of

registration to Monsarrat for the work, determined that it met the

requisite degree of creativity to satisfy the originality

requirement for copyright protection. Monsarrat contends, in any

event, that it was premature on a motion to dismiss for the

district court to adjudge the nature of his work.

It is plain from the face of this copyrighted work that

it lies much more on the factual and informational side of the

line than near the "core" of copyright protection, Campbell,

. Indeed, as the district court noted, the bulk of

- 18 - Monsarrat's post contains a verbatim quote from the LiveJournal

harassment policy, a publicly available document written by

someone else. The remainder of the post merely consists of brief

workaday prose informing other Davis Square LiveJournal users of

Monsarrat's threatened future actions. Thus, on the basis of the

complaint and the copyrighted work alone, we have no difficulty

concluding that the second factor weighs strongly in favor of fair

use.

3.

Third, we consider "the amount and substantiality of the

portion used in relation to the copyrighted work as a whole."

(3). There is no dispute that Newman copied the whole

of Monsarrat's copyrighted post. Typically, copying an entire

work verbatim will "militate[] against a finding of fair use."

Gregory,

(alteration in original) (quoting Worldwide

Church of God v. Phila. Church of God, Inc.,

, 1118

(9th Cir. 2000)). But we have explained that our assessment "must

be a flexible one, rather than a simple determination of the

percentage used." Núñez,

.

Even verbatim copying can constitute fair use if it is

"consistent with or [no] more than necessary to further the

'purpose and character of the use.'"

(quoting Castle Rock

Ent., Inc. v. Carol Publ'g Grp., Inc.,

(2d Cir.

1998)). Thus, we have held that the third factor is "of little

- 19 - consequence" when a defendant copies an entire work but "copy[ing]

any less than that would have made the [resulting copy] useless."

Monsarrat offers no plausible rebuttal to the contention

that it would have made scant sense for Newman to take just part

of the copyrighted post. Indeed, given that Newman faithfully

duplicated the rest of the thread containing Monsarrat's work,

consisting of more than 400 comments, selectively copying over

only a portion of Monsarrat's post would have misrepresented what

Monsarrat wrote. All in all, the fact that the work was copied

in its entirety adds little if anything to the brief against a

finding of fair use. Accordingly, the third factor favors neither

side.

4.

Finally, we assess "the effect of the use upon the

potential market for or value of the copyrighted work."

(4). The Supreme Court has referred to this factor as "the

single most important element of fair use." See Harper & Row,

. To evaluate the fourth factor, we look to both "the

degree of market harm caused by the alleged infringer's actions"

and "whether unrestricted and widespread conduct of the sort

engaged in by the defendant . . . would result in a substantially

adverse impact on the potential market for the original."

- 20 - Gregory,

(alteration in original) (quoting Campbell,

).

The district court found that this factor weighs in favor

of fair use because "[t]here is no plausible market for the

copyrighted post and thus no likelihood that Newman's reproduction

could have any harmful market consequences." Monsarrat, 514 F.

Supp. 3d at 392. Monsarrat does not contest this assertion in his

briefs and, indeed, expressly conceded at oral argument that there

is no potential market for his work. Rather, Monsarrat contends

that the fourth fair use factor contemplates an assessment of not

just the potential market but also the inherent value of the

copyrighted work. He suggests that Newman's use diminishes

Monsarrat's property interest in the post.

Monsarrat is certainly correct that the fourth element

of the fair use analysis references the "value of the copyrighted

work" and not just the "potential market" for that work.

(4). And we have explained that a work's value "cannot be

reduced to strictly monetary terms." Gregory,

.

But Monsarrat points to no other indicia of value other than

calling the copyright itself proof that he has a property interest

in the work. And if we deemed that the mere copyright endows a

work with intrinsic value sufficient to weigh significantly in the

fair use analysis, such a value would be present in every case,

and thus prove to be largely beside the point in differentiating

- 21 - one case from another. With no other reason to think that the

work has any value, we find that the fourth element weighs strongly

in favor of fair use.

* * *

Three factors weigh in favor of fair use -- including

"the single most important element of fair use," Harper & Row,

-- and one factor is neutral. This leaves us with no

doubt that Newman is entitled to his fair use defense.

Accordingly, the district court's dismissal of Monsarrat's

copyright claim was proper.

IV.

We affirm the judgment of the district court.

- 22 -