Saris, C.J.
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
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."
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
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 authorization the October 31, 2011 Encyclopedia Dramatica page [about Plaintiff] was copied and reposted" on the reconstituted website. Docket No. 58 ¶ 19.
Plaintiff alleges that from and after March 2012 Defendant has infringed on Plaintiff's copyrighted MIT graduation photo — in its photoshopped form — for commercial purposes. Docket No. 58 ¶ 20. Plaintiff also alleges Zaiger has used different anonymous acronyms to conceal his identity as owner of the Encyclopedia Dramatica website. Docket No. 58 ¶ 25. Plaintiff further alleges that in January 2013 he sent a DMCA takedown notice regarding the MIT graduation photograph to Defendant's then domain registrar. Docket No. 58 at 10. In May 2013, Plaintiff alleges he sent a similar takedown demand to Defendant's then Romanian agent. Docket No. 58 ¶ 27.
Plaintiff alleges that Cloudflare, Inc., a Delaware corporation, has been the registered Internet Protocol ("IP") address for the Encyclopedia Dramatica website. Docket No. 58 at ¶¶ 30-34. On November 9, 2016, Plaintiff served a DMCA takedown request on Cloudflare, which Plaintiff alleges provides "a so-called `pass-through security service' that acts as a `middleman' that sits between Zaiger's website and the users who interact with it." Docket No. 58 ¶ 31. On February 7, 2017, Cloudflare's Legal Team informed Plaintiff that, "as a reverse proxy, pass-through security service and a content distribution network (CDN) ... [that Cloudflare] is not a hosting provider ... [and does] not have access to our customer's [Encyclopedia Dramatica's] content." Docket No. 58 ¶ 34.
Plaintiff filed this action on March 2, 2017. Docket No. 1. On or about March 22, 2017, Plaintiff alleges Defendant "moved the country registration for the Encyclopedia Dramatica website to Serbia." Docket
On May 20, 2017, the system administrator for Encyclopedia Dramatica, "upon information and belief as authorized and directed by [Defendant] emailed the Plaintiff's counsel, with copy to [Defendant], that `we have removed the [Jonmon] article and protected the page ... [so that] no user can recreate the page. Additionally you have both [Defendant]'s assurance and mine that the article won't be recreated." Docket No. 58 ¶ 42.
A Rule 12(b)(6) motion is used to dismiss complaints that do not "state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "Affirmative defenses, such as the statute of limitations, may be raised in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), provided that the facts establishing the defense [are] clear on the face of the plaintiff's pleadings."
In evaluating a Rule 12(b)(6) motion, this Court must accept the factual allegations in the plaintiff's complaint as true, construe reasonable inferences in their favor, and "determine whether the factual allegations in the plaintiff's complaint set forth a plausible claim upon which relief may be granted."
Under the Copyright Act, no claim for copyright infringement can be brought "unless it is commenced within three years after the claim accrued." 17 U.S.C. § 507(b). A copyright claim accrues "when the plaintiff knows or has reason to know of the act which is the basis for the claim."
The Amended Complaint alleges that "[f]or some unknown periods of time from and after approximately March 2012, Defendant has used Plaintiff's copyrighted June 2000 MIT mascot photograph that had been altered..." on Defendant's website. Docket No. 58 at ¶ 49. Plaintiff's attached screenshot of the alleged infringement from the website is dated May 11, 2013. Docket No. 58, Ex. D. Plaintiff thus knew "of the act which is the basis for the claim,"
Plaintiff advances the argument that accrual does not actually occur until the aggrieved party knows the identity of the infringer. Docket No. 65 at 13-14. However, Plaintiff cites no case for this proposition. Indeed, suits against unknown parties are common. Plaintiff himself filed one in this very matter.
Therefore, Plaintiff's copyright infringement claim is time-barred, at least as of May 11, 2016.
The motion to dismiss is
SO ORDERED.