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Monsarrat v. Zaiger

United States District Court, D. Massachusetts

December 21, 2017



          Patti B. Saris Chief United States District Judge.


         Plaintiff Jonathan Monsarrat originally sued five unnamed Does for copyright infringement as the alleged operators and owners of Encyclopedia Dramatica -- a website he alleged published five of his copyrighted works. Docket No. 1. That complaint also sued Brian Zaiger (“Defendant”), by name, as the alleged administrator of the website. Docket No. 1 at 5.

         After learning through discovery that Defendant was the owner and administrator of Encyclopedia Dramatica, Plaintiff filed an Amended Complaint. Docket No. 58. That complaint is brought solely against Defendant, eliminating the unnamed Does, and alleges infringement of only one copyright, a June 2000 MIT graduation photograph allegedly published on Encyclopedia Dramatica in an edited form.

         For the reasons set forth below, after hearing, the Court ALLOWS Defendant's motion to dismiss (Docket No. 59) the Amended Complaint as time-barred.


         I. Parties

         Plaintiff Jonathan Monsarrat resides in Cambridge, Massachusetts. Plaintiff describes himself as a video game entrepreneur developing a video game that will be marketed to young people. He holds an undergraduate degree in Electrical Engineering and Computer Science from the Massachusetts Institute of Technology (“MIT”), as well as a Master's Degree in Business Administration from its Sloan School of Management.

         Defendant Brian Zaiger is an individual residing in Beverly, Massachusetts. Defendant is alleged to be the administrator and owner of the website Encyclopedia Dramatica. Plaintiff describes Encyclopedia Dramatica as similar in form to Wikipedia, hosting offensive and unsourced articles catering to the “trolling” culture of the internet. Plaintiff alleges that Defendant occasionally has made postings on Encyclopedia Dramatica using various usernames, including “Mantequilla.”

         II. The Photograph

         The Amended Complaint revolves around a single photograph. Plaintiff attended the June 2, 2000 MIT graduation in an MIT mascot costume. Plaintiff flagged down an unknown passerby, handed him a camera, and asked him to take a photograph of Plaintiff. Plaintiff posed with a man and two young girls, whom Plaintiff believes to be the man's daughters. After taking the photograph, the unknown passerby returned the camera to Plaintiff. A copy of the June 2, 2000 photograph (“graduation photograph”) is included as an exhibit to the Amended Complaint. Docket No. 58, Ex. A. That same month, Plaintiff published the graduation photograph on his personal MIT student webpage. Eleven years later, on February 15, 2011, Plaintiff registered a copyright of the photograph.

         Plaintiff alleges that in or about 2008, an anonymous Encyclopedia Dramatica user first created a page about Jonathan Monsarrat. Included in that entry was a digitally altered version of the graduation photograph -- the letters on the mascot's shirt had been changed from “MIT” to “PDB, ” and the mascot had been changed from a beaver into a bear. Plaintiff alleges the changes to the graduation photograph were made to associate Plaintiff with “Pedobear” -- described as an internet meme of a pedophilic bear. Plaintiff alleges that “[t]he bear image has been likened to bait used to lure children or as a mascot for pedophiles.” Docket No. 58 ¶ 8 (internal quotation omitted). At the bottom of the altered graduation photograph was the caption: “Jonmon suits up to express his inner self.” Docket No. 58 ¶ 7.

         Plaintiff alleges that on January 19, 2011, he served Encyclopedia Dramatica's registered agent with a takedown notice asserting copyright infringement. On February 6, 2011, the legal department of Encyclopedia Dramatica allegedly responded to Plaintiff that it had received a Digital Millennium Copyright Act (“DMCA”) “counter notification, ” and that “if Plaintiff gave notice that he filed an action to restrain the alleged infringement, Encyclopedia Dramatica would not permit the original poster to ‘restore' the allegedly infringing works pending outcome of the lawsuit.” Docket No. 58 ¶ 12.

         On February 15, 2011, Plaintiff registered a copyright for the unaltered graduation photograph. Plaintiff alleges that, on some date after October 31, 2011, the Encyclopedia Dramatica page about Plaintiff was taken down. On approximately March 19, 2012, the entire website was shut down. Later that year, the website resurfaced under a new country domain. Plaintiff alleges that Defendant “caused or directed the re-creation of the [] website by copying one or more versions of the prior Encyclopedia Dramatica content from an Internet archive; and at [his] discretion or ...

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