Migrating online forum to new platform to avoid Russian censorship qualifies as fair use

Davis Square in Somerville, Massachusetts, is a awesome place. Between 2010 and 2017, a group of its residents used the Russian-owned social networking platform Live Diary to host a community forum dedicated to topics of interest to the neighborhood. LiveJournal’s decision in 2017 to update its policies to require users to comply with Russian law – which, would haveholds the publishers of blogs with more than 3,000 daily visitors liable for disseminating unverified information or “extremist” content – led the defendant, who was in charge of moderation, to move the forum to dream widtha competing platform with Guiding principles who embrace freedom of expression, transparency and respect. To accomplish the move, Defendant copied old forum threads to Dreamwidth, leaving the original authors, dates, and posts intact. As a result of this migration, plaintiff sued defendant, alleging (1) defamation, arising from defendant’s republication of messages, written by others, accusing him of being a sexual predator, and (2) copyright infringement based on defendant’s unauthorized republication of a single post that plaintiff had contributed to the forum years earlier. The District Court denied both claims and the First Circuit upheld.

Defamation and the CDA

Plaintiff’s defamation claims were barred by Section 230 of the Communications Decency Act, 47 USC § 230, which provides immunity to website providers and users for certain claims (including defamation) arising from content posted by others. Under Section 230, a defendant is exempt from liability 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.

It was undisputed that the defendant was a “user” of an interactive computer service (the first prong), and it was clear that the plaintiff’s claims sought to treat the defendant as the publisher of the allegedly defamatory statements (the third part). Thus, the key question was whether the defendant’s act of republishing the allegedly defamatory messages made him a “provider of informational content” of those messages under the second prong.

Section 230 defines an “information content provider” as “any person or entity responsible, in whole or in part, for the creation or development of information provided via the Internet or any other interactive computer service”. 47 USC § 230(f)(3). The court concluded that the defendant did not fall under this definition:

“Right here, [the defendant] verbatim copied allegedly defamatory messages from LiveJournal to Dreamwidth. He neither encouraged nor coerced the original authors to produce the defamatory information. And, in the manner and form of reposting the posts, he neither offered nor implied that he had his own views on the posts. In short, [the defendant] did nothing to contribute to the illegality of the messages beyond posting them on the new Dreamwidth website.”

In support of its conclusion, the court cites Kimzey versus Yelp! Inc., 836 F.3d 1263 (9th Cir. 2016), where the Ninth Circuit ruled that Yelp! was not responsible for its “downstream distribution” to Google of user-generated content originally posted on Yelp! (including star ratings, which are basically user reviews). The first circuit agreed with the reasoning of Kimzey that just as a provider (like Yelp) or user (like the defendant) of an interactive computer service is exempt from liability under section 230 for defamatory content posted directly on that service, they should also be exonerated for delivering the same content in substantially the same format on a different platform “because this action does not change the origin of the third-party content”.

Copyright Infringement and Fair Use

When Respondent moved the Davis Square forum to Dreamwidth, it copied a thread that included a post Plaintiff had posted on February 6, 2010. In that short post, consisting of just over 100 words, Plaintiff recalled to forum participants LiveJournal’s anti-harassment policy and warned that it would take action if posts violating this policy were not removed promptly. Here is the post, in all its glory:

Like the District Court, the First Circuit held that Defendant’s republication of this message, in the context of the entire thread in which it was originally posted, qualified as fair use. . The following is a brief summary of the court’s analysis of the statutory factors (17 § USC 107):

  1. Purpose and character of use. Plaintiff “reasonably complains[ed] that the district court [had] outdated” in ruling that the plaintiff had republished the thread “solely for historical and preservation purposes”. under Rule 12(b)(6), Respondent’s specific reasons for reposting Plaintiff’s post (and entire forum) on Dreamwidth, his reasons for doing so were clearly different from the original purpose publication of the applicant – that is to say, as an urgent plea to convince forum members to stop harassing him. “So while we cannot be sure, given the current record, the extent to which [the defendant’s] the work is transformative, at least in a minimal way. Further, Defendant’s use of Plaintiff’s position was not commercial, and Plaintiff’s arguments that Defendant acted in bad faith were unconvincing. Accordingly, the first factor favored a finding of fair use.
  2. Nature of the copyrighted work. The second factor weighed “strongly” in favor of fair use. Plaintiff’s “banal” message “lies far more on the factual and informational side of the line than near the ‘heart’ of copyright protection.” Approximately 50% of the message consists of a quote from LiveJournal’s publicly available anti-harassment policy, to which the complainant can claim no rights, and the remainder “consists of brief daily prose” in which the complainant simply warns forum members of potential consequences if they fail to delete the offending posts.
  3. The amount and size of portion used. The third factor was neutral. Although Plaintiff’s post was republished in its entirety – which would generally militate against a finding of fair use – it would have made no sense for Defendant to have copied only part of Plaintiff’s post. “Indeed, since [defendant] faithfully reproduces the rest of the thread containing [plaintiff’s] work, consisting of over 400 comments, selectively copying only part of the requester’s post would have distorted what the requester wrote.”
  4. Effect on the potential market or value of the copyrighted work. The last factor weighed “strongly” in favor of fair dealing since the plaintiff acknowledged during oral argument that there was no potential market for his work, and he was unable to offer an argument. plausible as to the impact of reposting his post on his “value”. .”

With three factors weighing in favor of fair use and one neutral, the court had “no doubt” that the defendant was entitled to his fair use defense.

Monsarrat v. Newman, __ F.4th __, 2022 WL 714426 (1st Cir., Mar. 10, 2022)