Monsarrat v. Newman (D. Mass. 20-cv-10810).

Monsarrat filed suit against Ron Newman last summer, accusing him of defamation and copyright infringement.  Monsarrat had alleged that a Russian social network known as LiveJournal, allows users to post content without restriction, including pornography, obscenities, and defamation.  He says that Newman moderated a discussion group on LiveJournal that republished defamatory posts from a prior social media site, EncyclopediaDramatica, that included defamatory suggestions regarding Monsarrat, including falsely associating Monsarrat with pedophilia.  Monsarrat had previously gone after Newman and EncyclopediaDramatica in both state and federal court, but his claims were denied as time barred.  Monsarrat says that Newman reposted the subject material again in 2017, this time to a different website known as Dreamwidth.  In January, Judge Stearns granted Newman’s motion to dismiss for failure to state a claim.  Monsarrat’s copyright claim was based on the republication of a post made by Monsarrat on the LiveJournal site demanding removal of the offending posts.  Judge Stearns found that, as a matter of law, the republication of the post was covered  by the fair use defense.  He found the republication to be for a different purpose, namely historical preservation as opposed to Monsarrat’s purpose of seeking to obtain deletion o the underlying posts.  He further found that there was no conceivable market for Monsarrat’s original post, meaning that there was no likelihood that Newman’s republication could affect the market for the work.  He found that Newman was shielded from liability on the defamation claim under the fair harbor provisions of the Communications Decency Act.  Newman then moved for attorney’s fees, while Monsarrat filed a notice of appeal.  Judge Stearns has now granted n part Newman’s motion for fees.  He found that Newman’s obtaining dismissal of the copyright claim on the basis of his affirmative defenses demonstrated the flimsiness of Monsarrat’s copyright complaint.  He also found the copyright complaint, which was premised largely on a restatement of LiveJournal’s anti-harassment policy, left no plausible argument that the republication effectuated the same purpose (and thus did not constitute fair use) as the underlying post.  With respect to the defamation claim, Judge Stearns found that Newman’s lawyer raised the safe harbor issue in response to the demand letter from Monsarrat demonstrated that Monsarrat should have been aware of the weakness of that count  Judge Stearns found that an award of fees was warranted.  He did, however, reduce the requested fee amount by half, given that the case did not proceed beyond the motion to dismiss phase, and awarded $29,382 in fees. 

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