Mirroring Qualifies for Section 230–Monsarrat v. Newman

January 24, 2021 · by · in Content Regulation, Copyright, Derivative Liability

This case involves a LiveJournal community (the Davis Square community for Somerville, MA). In 2017, LiveJournal changed its policies. In response, Newman, the community moderator, copied all of the community’s posts and uploaded them to Dreamwidth–an action we used to call “mirroring” in the old days. Monsarrat had posted to the LiveJournal community and objected to the transfer.

Defamation. The court doesn’t specify which posts Monsarrat claims are defamatory, but his defamation claim relates to the posts Newman mirrored. The complaint said Newman is a user of an interactive computer service (a rare case involving an ICS “user” instead of “provider”!), and the defamation claim treats Newman as a publisher.

The only remaining precondition for Section 230 is whether Newman acted as an “information content provider.” The court says Monsarrat didn’t allege that Newman created or developed the content at issue. Monsarrat claimed that Newman took “ownership” of the mirror. Citing Ayyadurai v. Floor64, the court replied that “[r]epublishing an already-existing user-submitted comment, without altering the content of that comment, does not materially contribute to its allegedly defamatory nature.” (Additional cites to Kimzey v. Yelp and Jones v. Dirty World).

Other citations where Section 230 has protected a defendant who made the intentional decision to relocate the content include the email forwarding cases (e.g., Phan v. Pham, Barrett v. Rosenthal) and the D’Alonzo case involving reposting a newspaper article. Other apropos cases include the awful DF Pace v. Baker-White ruling (involving republishing screenshots of social media posts) and the confusing Woodhull v. Meinel ruling.

Copyright. In the transferred archive was a post Monsarrat made in 2010:

Monsarrat sued for copyright infringement of this post. The court says Newman qualifies for fair use.

  • Newman republished it for “historical and preservationist purposes.” Cite to the 2011 gem of a lawsuit over a 23 word email, Stern v. Does. Also, Newman didn’t use the post to generate traffic to the Dreamwidth archive.
  • Monsarrat’s post was fact-like and already published.
  • “Newman copied Monsarrat’s post in full, but a full reproduction is consistent with historical and preservationist purposes.”
  • “There is no plausible market for the copyrighted post.”

Case citation: Monsarrat v. Newman, 2021 WL 217362 (D. Mass. Jan. 21, 2021)