Bad Faith Litigator’s Defamation/Copyright Infringement Lawsuit Shot Down By Appeals Court

from the nice-try dept

To talk about game developer/serial litigant Jonathan Monsarrat is to open up several cans of hilarious and repulsive worms. Mike Masnick played catch up on Monsarrat’s past and present legal problems in this lengthy 2013 post, where Monsarrat — founder of video game company, Turbine — was slapped around by Booth Sweet LLP (of Prenda fame) after Monsarrat sent a letter threatening people who wrote about his clearly bogus defamation/copyright infringement lawsuit he had filed in Massachusetts.

Among the many problems with the lawsuit was the fact that copyright infringement suits can’t be filed in state courts. Those are restricted to federal courts (unless you’re an artist with a pre-1972 catalog in dispute). Monsarrat’s lawsuits sought to shut down comments about his other legal problems, those involving police.

This particular legal problem was more problematic than most. Depending on whose account of the events you chose to believe, Monsarrat either attended or hosted a party that involved both alcohol and minors. Here’s one version:

Police made their way inside the apartment and asked the DJ to stop the music. The apartment had two floors and was packed with “what appeared to be teenagers attempting to hide beer and other alcoholic beverages,” according to the report. Patrolman John Thermidor reported at least 25-30 teenagers in the apartment, as well as people on the stairs leading up to the second floor. He asked to talk to an adult, but there was no response from anyone.

A few minutes later, a man came down from the second floor and identified himself as Jonathan Monsarrat, 41, the resident and host of the party, according to the report. Thermidor told him to inform his guests that the party was over and they have to leave, but Monsarrat allegedly became argumentative and refused to comply. He assured Thermidor that there was no alcohol at the party. According to the report, the officer informed him that he had seen teenagers with beer bottles.

Add to this mix several commenters unimpressed by Monsarrat, his legal threats, his legal problems, and his proclivity for engaging with trolls, and you end up with a lot of legal threats and a handful of lawsuits, all of them meritless.

That mix also, at one time, involved Encyclopedia Dramatica, Wikipedia’s very dark twin — one populated by contributors willing to celebrate people’s worst moments and provoke reactions from the subjects of its articles. Monsarrat was one target. A picture of him dressed as a beaver at a costume party was photoshopped to make him look like Pedobear, a nod to reports of his arrest for allegedly hosting an underage drinking party.

Monsarrat sued Encyclopedia Dramatica in 2017, alleging copyright infringement because it had used a photo (allegedly owned by him) to create its Monsarrat/Pedobear meme. A Massachusetts federal court tossed the lawsuit a couple of months after it was filed, noting that Monsarrat had waited way too long to sue the website, exceeding the federal statute of limitations.

The First Circuit Court of Appeals has terminated another Monsarrat legal excursion. This one originally involved a couple of named defendants who ran a message board containing plenty of criticism of Monsarrat. At one point, the libel lawsuit targeted more than 100 defendants. Most of those defendants were discarded once Booth Sweet LLP fired back in response to one of Monsarrat’s legal threats.

But one remained: Ron Newman. The original lawsuit was dismissed but Monsarrat returned to court, wrongly believing that Newman’s transfer of his Davis Square message board from LiveJournal to Dreamwidth restarted the clock on the alleged libel and (yes) copyright infringement claims.

This lawsuit was rejected early last year by the federal court handling it, which found that simply moving the posts to a new host did not make Newman a “publisher” of allegedly defamatory third-party comments, nor was it copyright infringement to move Monsarrat’s copyrighted content to the new host along with the rest of the site’s contents.

First, let’s talk about the copyrighted content. Behold:

Yep. That’s it. If you can’t read/see it, it’s a post Monsarrat made to the Davis Square message board where he cites part of LiveJournal’s abuse policies before threatening other commenters with being reported to the board host for violations. That’s it. And that’s the content Monsarrat claimed was creative enough to be copyrighted. The federal government agreed, granted this “content” protection and gave Monsarrat what he hoped would be the leverage needed to finally stop losing in court.

Well, it didn’t work at the district level. And it didn’t work at the First Circuit Court of Appeals. There is no copyright infringement and moving the content from one host to another didn’t make the message board’s owner any more liable for comments made by others. (h/t Gabriel Malor)

The First Circuit [PDF] says there’s nothing for Monsarrat here. Section 230 immunizes Ron Newman (the Davis Square message board operator) no matter where the third party contents are now located. Moving from one host to the other did not restart the clock on the statute of limitations. Even if it did, see the previous sentence.

The Appeals Court drives this home by not only reminding Monsarrat that the precedent he cites doesn’t say what he wants it to, but that he tried to slip his preferred interpretation by the court by deliberately misquoting the relevant decision.

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.” 129 F.3d 327, 330 (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.

Here’s the relevant part of Zeran:

By its plain language, § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, § 230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.

The First Circuit’s footnote exposes Monsarrat’s failed misdirection:

Monsarrat’s brief omits the word “publish” from its direct quote to Zeran (without using ellipses).

The better part of the Appeal Court’s rejection comes during its handling of Monsarrat’s meritless copyright infringement claim over the message board post he talked the US Copyright Office into treating as content worthy of copyright protection. A hosting platform move several years removed from Monsarrat’s original posting (and several years removed from his subsequent bad faith move to copyright his message board post) does not erase the statute of limitations, nor does it make the claim any more valid.

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.


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.

When you tie all your stupid shit together because you know none of it can possibly survive scrutiny on its own, you end up with little more than a tangled bunch of bullshit that… similarly can’t survive even a cursory examination by a federal court.

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.

The lower court’s booting of Monsarrat’s lawsuit is affirmed. Unless Monsarrat truly believes the Supreme Court is just dying to make the definitive call on his multiple ill-fated grudge matches against internet commenters by a man now possibly known more for trying to silence critics than anything video game-related, this is the end of the line for Monsarrat and his bad faith litigation. But Monsarrat is a man who has shown he can be defeated repeatedly but can never truly be beaten into submission. He’ll be back. But he’ll never get any better at litigating and he’ll never bring better arguments to the table.

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Comments on “Bad Faith Litigator’s Defamation/Copyright Infringement Lawsuit Shot Down By Appeals Court”

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James Burkhardt (profile) says:

I am somewhat surprised there were no discussion of the terms and conditions of the message board. Most message boards I was a part of, including plenty of generic hyperboards-derived message boards, included the standard boiler plate “you provide a perpetual, non-exclusive licence to any copyrights” yada yada yada that I would have expected to be an easy deathblow to the copyright claims.

That said, “I defamed myself and that guy super defamed me by not deleting my random comment from years ago” was a….bold strategy.

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