United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
B. Saris Chief United States District Judge.
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.
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.
reasons set forth below, after hearing, the Court
ALLOWS Defendant's motion to
dismiss (Docket No. 59) the Amended Complaint as time-barred.
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.
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,
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
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.
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.
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 ...