Monsarrat v Zaiger: Game Moves to the Next Level
by Susan Basko, esq.
October 20, 2017. Look out, Zaiger! Jonathan Monsarrat filed a flurry of court papers the past few days. He is asking the Court to dismiss the Doe defendants, which is required by the rules if they have not yet been named and served. He is also asking the Court to proceed with only Brian Zaiger as a defendant, as the owner of Encyclopedia Dramatica.
This first document is the Motion where Jonathan Monsarrat asks the Court to amend the Complaint to drop the Does and let him tangle with Brian Zaiger. He requests a hearing, but it is not likely a hearing would be needed since this is a rather rote request.
This next document is the Complaint with only Zaiger's name as a Defendant. This would be the "amended complaint." Are there other changes to the Complaint? We'd have to go back and compare and to be honest, I don't care enough to do that - but if you want to, you can find the original complaint here: MONSARRAT V ZAIGER ORIGINAL COMPLAINT.
(ooooh. . . I did look and they are quite a bit different. I may do an upcoming post with an analysis of what has changed.)
The odd thing about this is that it looks like it is scanned off a paper document. This is odd because the federal courts use electronic filing, and surely Mr. Goren, who is Jonathan Monsarrat's lawyer, must have an electronic file of this Amended Complaint. Why they'd be filing an electronic file of a scanned paper document is quite the mystery -- but hey, they're in Massachusetts, where BLASPHEMY is still a crime on the books -- so anything odd could happen there.
Someone wrote in asking what is blasphemy. Blasphemy is when a person says something that irks God, and God strikes them with lightning or sends locusts or raging fires. The State of Massachusetts is untrusting that God will smote the offending person, and thus allows the State the option of charging the person with a crime. The legislators in Massachusetts are afraid to discuss changing the law, because that might irk God, and they could all be stricken by lightning or charged with a crime, whichever comes first. The first rule of Blasphemy Club is that you can't talk about blasphemy.
This third document, below, is the Memorandum supporting the need for an Amended Complaint. The highlight of this (if there is one) is that at a Scheduling hearing, Mr. Zaiger stated that he is the owner of Encyclopedia Dramatica and that the offending materials were removed off the site, and that he would not settle unless his legal fees were paid by Mr. Monsarrat. These are clueless statements because this garbage about Mr. Monsarrat was up on ED before and he went to the trouble then to get it removed, only to have it reappear years later; and the point of this lawsuit is no doubt to make Zaiger pay for being an internet asshole, the legal qualifications and definitional parameters of which have been well met by Mr. Zaiger, according to experts in that field, several of whom could be called upon to testify at trial.
In addition, Mr. Monsarrat filed several more papers, in which he requests to have several exhibits filed under seal and then explains what they are. Those are the exhibits that are left as blank pages in the Amended Complaint. Those exhibits are the scurrilous postings made "about" Mr. Monsarrat on Encyclopedia Dramatica, including some elements that might be considered child pornography. Since it is illegal to spread such materials around, they were filed under seal.
It's not likely any of this will require a hearing, unless Brian Zaiger files a response objecting to any of this. If he objects to being the only defendant, it would be up to him to name who else is responsible for the content of the site.
Monsarrat v Zaiger is a Copyright infringement lawsuit, where there is no Section 230 immunity for the website or its owners, as there might be in a defamation case. That leaves the responsibility with Brian Zaiger, the owner of Encyclopedia Dramatica (ED). If ED had named an agent for Digital Millennium Copyright Act (DMCA) complaints, then ED would have had the benefits of a safe harbor provision, where the site would have to first be contacted and allowed to remove the allegedly infringing materials. It appears as if ED had a named DMCA agent in the past, but did not have one at the time Monsarrat filed his complaint.
The laws regarding DMCA Agents recently changed. Any site that previously had a named agent was required to file a new form. The good part is that agents are now named on an electronic form and the price was drastically reduced to around $25. You can find the old and new DMCA Directories, as well as the Registration forms, HERE. What this means is that if you register a DMCA Agent, that is, a contact person for your website, then if you are infringing on someone's copyright, they have to first notify your agent to remove the infringing materials. If you do not register a DMCA Agent with the U.S. Copyright Office, then the owner of the Copyright-registered materials can go ahead and sue you. This provision for contacting the DMCA Agent first is called a Safe Harbor, and it can protect you and your website from Copyright lawsuits. It takes about 10 minutes and $25 to name an Agent. You can be the Agent for your own site.
Stay tuned for further adventures in Monsarrat v Zaiger.
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