Jonathan Monsarrat Responds!
Zaiger and Encyclopedia Dramatica Drama!

Jonathan Monsarrat Responds! 
Zaiger and Encyclopedia Dramatica Drama! 
by Susan Basko, esq.

UPDATE: Chief Judge Patti B. Saris has set a hearing on Brian Zaiger's Motion to Dismiss, scheduled for December 5, 2017 at 10:15 a.m. in Courtroom 19 in Massachusetts District Court at 1 Courthouse Way, Boston, Massachusetts 02210. 

In case you missed the earlier episodes of this exciting Lawsuit Adventure, you can find them here:

And Kids! Be sure to get your own Boston Boogie Lawsuit Kit so you can play along at home. The kit includes your own pretend Court Filings that you can send out to people you don't like, a tshirt that looks like a lawyer suit and tie, and a link to your very own website where you can write horrible things about everyone you know!

Jonathan Monsarrat's Response to Brian Zaiger's Motion to Dismiss for Failure to State a Claim (see it below!) basically says FIVE main things:

1) that the Lawsuit was filed on time and is not barred by the 3-year Statute of Limitations on Copyright Infringement claims, because. . . and the "because" is really murky in this Response.  The real answer is that under Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014), applied to the internet, as long as copyright-infringing material was up on the internet within the three years preceding the filing of the lawsuit, the claim accrued within the 3 year statute of limitations.  Though Monsarrat's argument on this point is not clearly stated, he wins this point.  This is called separate accrual, rolling accrual, look-back, and some other names.

2) that Jonathan Monsarrat has Copyright Ownership of the disputed photograph.  He registered Copyright and that creates a presumption of ownership.  Arguing over authorship and ownership is not likely to happen within this motion, but rather, be part of a trial.  If Monsarrat does not own copyright on the photo, who does?

3) that Jonathan Monsarrat is the "author" of the work.  He says he took the photo, even if someone else snapped the shutter.  This is accurate and he wins on this point.  Being the "author" on a work has to do with the creative input and creative control, particularly in a collaborative work.

4) that Fair Use does not include libel  or promotion of child pornography.  This is true.  There are no such Fair Uses.  Brian Zaiger has argued that his use of the photo was Fair Use as a nonprofit Educational use.  That's just ridiculous. That's as if Jeffrey Dahmer's lawyer argued that the human heads in the refrigerator were the makings for hors d'oeuvres.

5) Jonathan Monsarrat is asking the Court to make a ruling that Zaiger's use of the photo is not Fair Use.  Once the judge does that, the lawsuit is basically won by Monsarrat and he can then file a Motion for Summary Judgement and proceed to a determination of damages. 

WHAT HAPPENS NEXT?  Brian Zaiger gets to file a Reply to the Response.  In it, he will likely recap his arguments from his Motion to Dismiss.  He will probably also argue more about how calling a man a pedophile is educational.

Monsarrat Response to Motion to Dismiss 09518387470 by Sue Basko on Scribd

Hollywood Blacklist 2017

Hollywood Blacklist 2017
by Susan Basko, Esq.

With uncanny parallels to the 1950s McCarthy era Hollywood Blacklist of those suspected of being Communists, we have the 2017 Hollywood Blacklist of Men with Errant Libidos.  Who is running this thing?  I imagine people at the big agencies saying, "They took out one of our big comedy guys, let's see what we can find on one of their guys."  

I also imagine those men cast into the Briar Patch rebounding and banding together to form their own Superstudio.  The Weinstein-Spacey-Louis CK-Dustin Hoffman Studio. And whoever else, probably leaving out the ones that were way past their prime entertainment-wise.   The movies and series being suddenly scrapped may be picked up for distribution at a later date in a less conspicuous venue.

The "casting couch" has long been a Hollywood truism. "Casting couch" has been a metaphor for most any sort of sex act induced or coerced by a male in power onto those seeking work in the industry.  Those forced onto the metaphorical casting couch include young actresses, good-looking young men, and child actors. That this has included women being forced to "consent" to watch as a more powerful man masturbates in front of them was previously unknown, at least by me.  While we might have supposed that anyone with such a predilection would be too embarrassed to let others know how creepy they truly were, it turns out, this has not been the case.  Louis C.K. has even stated that he believed his actions were consensual because he asked permission first.  Asking first or not, sexual exhibitionism does not belong in any workplace.   

The utter lack of dignity of exposing one's compulsions, and one's genitals, to unwilling people, is in itself not an act of power or control.  It is an act of being out of control of oneself, which is never powerful.  A genuine act of power involves being in charge of one's own sexuality, being a Master of My Domain, as they said on the old Seinfeld show.

Will Hollywood henceforth be a "safe place"?  Will the Grand Purge of 2017 send a strong message that is passed through the ranks and remembered for decades to come?  Will women and children and young gay men now be safe from unwanted sexual acts?  Will they now feel free to speak up when something does happen? If there is a complaint mechanism set in place, will those that do make complaints find themselves on a blacklist of complainers?  

Will the quality of drama and comedy entertainment suffer if those with errant libidos are dashed from the ranks?  Many of those now being placed on the Blacklist are highly accomplished.  Does having a highly charged, inappropriately mediated sex drive often accompany those with the sort of creative drive it takes to make good drama or comedy?  If only "nice guys" can make it in the future entertainment industry, will the product churned out be banal or lifeless?  Do we need Lotharios to play Lothario?  Or can a Lothario be played by a Mr. Squeaky Clean Nice Guy?  And how were we fooled so long into perceiving Bill Cosby as a Mr. Squeaky Clean Nice Guy? 

And how about edgy comedy?  Must one actually be on the edge to create it?  Is there an audience for demented humor from demented people?  And is that okay? Or must everyone in Hollywood be a nice person making nice comedies for nice people?  And would that be funny?

How the future gets shaped is how we shape it. 

5 Things I Like About the Trump Presidency

5 Things I Like About the Trump Presidency
by Susan Basko, Esq.

There are plenty of things I don't like about the Trump presidency, including the way he has sicked ICE on immigrants, his plans to build a wall, and much more.  For now, I set all this aside. 

 This essay is about 5 things I do like about the Trump presidency.

1. Trump is a political outsider.  This gives hope that in the future, the U.S. may choose presidents and other elected officials from outside the field of politics.  Other nations elect leaders who have been teachers, artists, doctors, etc.  Canada's Prime Minister, Justin Trudeau, was formerly a teacher.  The U.S. government has become too bogged down in a repetition of its logic and bureaucracy and a massive, intrusive, heavy government devoid of caring, culture or finesse.   It's time for some fresh air and light and some new faces and new ideas.

2. Trump tweets.  I like that President Trump tweets.  It is obvious he is tweeting his own tweets from his own ideas as he goes about his daily life. I like this.  This has put him in direct immediate contact with the people.  I don't have to like what he tweets; I like that he communicates freely.  I always found State of the Union addresses somber and boring, with their orchestrated applause punctuating words written by speechwriters, honed until they sounded good, while conveying no specific promises.  Now, we get the President's real thoughts, dished up immediately with no filter.  If nothing else, this has gotten a whole lot of people paying attention, all day long, to the President's ideas.

3. Family.  I like that Donald Trump involves his family in his presidency.  He's got some smart people in his family, so why not call upon them?  I like it.

4. Ivanka Trump.  Ivanka is smart, educated, beautiful, and sophisticated.  She has a gorgeous wardrobe.  She has a rich, ethereally handsome husband.  She has an adorable little daughter, Arabella, who can speak a bit of Mandarin, and a charming little son.  Ivanka brought Arabella to watch a session of the U.S. Supreme Court.  That's a mommy who knows her child is not going to make noise or raise a ruckus in a sedate, formal setting.  Ivanka is America's princess.  Her father is wise to have her as his adviser and send her out to represent the U.S.  

5. Tiffany Trump.  She's Trump's daughter by his former wife, Marla Maples.  Tiffany is sexy, gorgeous, and she's in law school. She is dating a smoking hot, super smart man named Ross Mechanic.  This sizzling couple are a people-watcher's dream.

 The Donald -  Calling it as he sees it. 

* * * *

Zaiger files Motion to Dismiss: Monsarrat v Zaiger

Zaiger files Motion to Dismiss: Monsarrat v Zaiger
by Susan Basko, Esq.

Brian Zaiger filed a Motion to Dismiss Jonathan Monsarrat's Copyright Infringement Complaint.  One of Zaiger's reasons was that the Statute of Limitations has run.  Elsewhere in his Motion, Zaiger states that the allegedly infringing materials were removed from Encyclopedia Dramatica (ED) in April 2017.

Copyright claims must be made within 3 years of the accrual of the claim.  The law gives no guidance as to what "accrual" means.  Courts have developed what is called a "separate accrual" rule.  This means that each time the item is newly distributed or copied, a fresh copyright infringement takes place.  This is also called a rolling accrual.  The offending materials were on ED as recently as April 2017, which would give Monsarrat until April of 2020 to file his lawsuit.  The court looks back from the date of the filing of the lawsuit and sees if any fresh distribution or copying has taken place within the prior 3 years.  A website is a fresh distribution each time any person opens the URL to look at it.  However, a plaintiff can only get damages extending back three years, even if the material was infringed for many years before that.  The timing of when the statute of limitations would toll is often different from the maximum three year time limit on which damages may be sought; these are two different calculations.

Another basis for Zaiger's motion is that his use of the infringing materials is Fair Use and that his website is parody.  Encyclopedia Dramatica is a website that features obscene photos of anuses -- variations on the infamous "goatse" and other photos with no artistic redeeming value.  It is a vile and disgusting site.  This is not parody.  There is not Fair Use that involves the right to place photos of any person onto an obscene website or to use photos to cyberstalk and defame.  Fair Use is not set in stone, but is determined case by case on a set or principles.  Advancing obscenity, advancing defamation, and cyberstalking are not among the principles of Fair Use.  The principles of Fair Use are to advance such things as analysis and critique, use in humor, use in religious ceremonies, use as examples in bonafide educational settings, and de minimis use in other works.  Placing someone's copyright registered materials into a shocking obscene website filled with scandalous defamation and promotion of lewd materials is not likely going to be deemed a Fair Use.

While parody is a Fair Use, it is also well-defined. Creating actual parody requires a knowledge of what it is and a deft creativity that transforms or juxtaposes the Copyright-imbued material with elements that create a secondary meaning.  The stuff on Encyclopedia Dramatica is not parody; it is invasion of privacy, defamation, non-humorous derision meant to extort, coerce, or damage a reputation, all placed into a setting rife with obscenity.

Another factor that makes the stuff on Encyclopedia Dramatica other than parody is that Zaiger has the site set up so that each victim has their own "page" on the site, in their name.  Then, any of the malicious users are invited to post their own lies, photoshopped images, derision, and stalking against that person.  Parody is created as an intentional, creative, thought-out, well-shaped work.  On the contrary, Encyclopedia Dramatica is a dumping ground for any hateful trash spewed out by an assortment of hackers, doxers, stalkers, and deranged personas.

Further removing Encyclopedia Dramatica from any possibility of being parody is that it is set up to look like an online encyclopedia and that it has very strong SEO.  The site shows up in the top of any google search and looks like an authoritative website.  The lies and filth written about the victims on the pages are presented without any humor or creativity.  It is a heavy-handed smear website made to look like an official source of information.

Another thing that makes Encyclopedia Dramatica something other than parody is that the victims of the site have their names sullied by being associated with all this shocking obscenity and piles and piles of character assassinations.  This might be a smear site.  It might be an extortion site.  It is not parody or satire.

Note: I have suggested to the people of Encyclopedia Dramatica that they should have memberships and then all the members could post whatever they want about each other.  Dragging others into their cesspool of hate and filth is not acceptable.

Brian Zaiger advances other reasons why the Complaint should be dismissed, including claiming that Monsarrat does not own Copyright on the materials and /or that the materials cannot have copyright.  When a person registers Copyright, there is a presumption that they own a valid copyright.  It will be an uphill battle to prove otherwise.  Zaiger argues that because Monsarrat appears in the photos, he could not be the author of them.  In this age of selfies and timed cameras, many people are taking pictures of themselves and/or themselves with others.  Further, it may not always be the person that clicks the electronic "shutter" button that authors a photo.  The author can very well be the person who is the "art director," composing and arranging the subjects and having someone else click the shutter.  Take for example in filmmaking, where there may be a Camera Operator and a Director of Photography.  The Camera Operator runs the camera to capture the images and movement set up and arranged by the Director of Photography, or DP.  Which one gets to take credit for what appears on screen?  The Director of Photography.  On a much smaller level, if you and your friends or family are in a tourist spot and you hand your camera or phone to a stranger to take a picture of your group after you all get arranged for a picture, do you think that stranger can come along and claim Copyright ownership over the picture?  Do you think that stranger can prevent you from using the picture or charge you for it?  No, they cannot.  You and your party have traveled to the location, arranged yourselves in front of the scenery, provided the camera or phone, and the stranger agreed to click the shutter.  There is no Work for Hire agreement signed in advance by the stranger who clicked your camera; there does not need to be.  You own the picture because you are the Director of Photography of your own little family vacation photo. The person clicking the shutter is working at your direction to create what you want and with an implied agreement that they are doing so for free, as a favor, and they have no expectation of remuneration or copyright ownership.  Further, the stranger could take a great photo that is cherished forever, or they could have a shaky hand and take a blurry mess, but you could not sue them for failing to do the job right.  There is simply no obligation on either side, other than the stranger must return your camera to you after taking the pictures.

Once again, Zaiger's lawyers are misusing court filings as a way to defame the Plaintiff.  In this filing, they claim that Monsarrat has been deemed "creepy" and then diagnose him as a "hebephile," without any evidence to support this and with no professional expert making such a determination -- just the defendant and his lawyers.  A hebephile is a person mainly sexually attracted to children in the age range of 11 to 14 years old.

In the memo, Zaiger's lawyers have reiterated an alleged email from many years ago, in which Jonathon Monsarrat awkwardly and over-eagerly asked a grown woman named Hannah Rosenbaum on a date. Ms. Rosenbaum decided the just desserts for a man being awkward in making an invitation to a date was to forever memorialize his emails on an obscene, sickening website and to mock and degrade him forevermore.  (And such women often wonder why they are not asked on dates.)   This whole thing adds up to that Jonathan Monsarrat is most likely going to have to file yet another Motion to Strike Zaiger's scurrilous and scandalous pleadings.

Brian Zaiger's court pleadings mirror the irresponsible classless style of Encyclopedia Dramatica.  However, the Court is not run the way ED is, and it will be interesting to see how much Chief Judge Patti Saris tolerates before issuing sanctions.  My guess is not much more.

It will be interesting to read Jonathan Monsarrat's response to the Motion.

This is the Motion to Dismiss.  It is short, leaving the arguments for the longer Memo, shown further below.



Monsarrat v Zaiger: Game Moves to the Next Level

Monsarrat v Zaiger: Game Moves to the Next Level 
by Susan Basko, esq.

UPDATE October 28, 2017.  It is quite hilarious/ pathetic watching Brian Zaiger waste what little money he does have for litigation on doing battle with the basic civility of the Court.  He seems to be trying to turn this court case into an extension of his defamation-shock website, Encyclopedia Dramatica.  But Chief Judge Patti Saris is not having it.

If you recall from the post below, Jonathan Monsarrat filed a Motion requesting to file an Amended Complaint that named only Brian Zaiger as the defendant, and also requested to seal  two exhibits that contained material that is inappropriate to be placed publicly onto the internet anywhere, let alone on ECF, the Electronic Court Filing system.  Mr. Monsarrat had no choice but to file these exhibits, since they are the scandalous defamatory materials "about" Monsarrat that Zaiger had posted on his website, Encyclopedia Dramatica.  The proper protocol in filing exhibits containing improper materials is to file a motion to file them under seal. 

Now, of course the Court was going to allow Jonathan Monsarrat to file an Amended Complaint naming only Brian Zaiger, as the plaintiff is required to remove unnamed Does and is allowed to amend the complaint to clarify and update it.

And of course the Court was going to allow the sealing of scurrilous, harmful exhibits.  Following FRCP 12(f), the Court can strike "any redundant, immaterial, impertinent, or scandalous matter." A party who must file such material is best off to file such material under seal.  Most district courts leave this up to the expected common sense and civility of the lawyers, while at least one district court has codified the expectation in its local rules.  The Federal District of South Carolina Local Rule 13.4.3 (j) states that materials to be sealed includes "information or materials which would otherwise be inappropriate for display or distribution through the PACER or ECF System (including materials with graphic, pornographic, obscene, or scandalous content.)"  Virtually everything on Encyclopedia Dramatica fits one of more of those adjectives.  So, of course the Court was going to allow Jonathan Monsarrat to file the exhibits under seal.  

Rather than respecting the basic civility expected of parties and their lawyers, instead, Brian Zaiger filed a whole flurry of court documents claiming that Jonathan Monsarrat was only trying to seal these scandalous exhibits because he did not want "criticism" of himself to be shown publicly.  And therein lies the crux of the problem -- Brian Zaiger thinks scandalous lies and defamation are "criticism." Brian Zaiger thinks calling a respectable person a "pedophile" is criticism.  Brian Zaiger thinks the victims of his website are required to perpetuate the lies and filth from Encyclopedia Dramatica by posting them publicly while in the course of trying to salvage oneself from Zaiger and his ED cesspool.

So, rather than just accept the inevitable filing of the exhibits under seal, Zaiger filed this stuff:

MEMORANDUM in Opposition re45 MOTION to Seal Document43 MOTION to Amend1 Complaint filed by Brian Zaiger.(Wolman, Jay)
Att: 1   Exhibit 1 - Wolman Declaration,
Att: 2   Exhibit 2 - Compliance Policy,
Att: 3   Exhibit 3 - $160 Million DotCom Icon,
Att: 4   Exhibit 4 - US Patent 7647351,
Att: 5   Exhibit 5 - Answers to Interrogatories - Redacted

and then Monsarrat asked the Court if he could reply to that nonsense:

MOTION for Leave to File by Jonathan Monsarrat.(Goren, Richard)
Att: 1   Exhibit A PROPOSED REPLY

and then Judge Patti Saris granted Monsarrat the right to file that REPLY:

Chief Judge Patti B. Saris: ELECTRONIC ORDER entered granting48 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Geraldino-Karasek, Clarilde)

and then Jonathan Monsarrat took that permission and filed his REPLY to Zaiger's RESPONSE to Monsarrat's Motion to file the scandalous and inappropriate Exhibits under seal (which would always be granted):

REPLY to Response to45 MOTION to Seal Document43 MOTION to Amend1 Complaint filed by Jonathan Monsarrat. (Goren, Richard)

and then Monsarrat also had to file to strike the scandalous matter from Zaiger's filing:

 Emergency MOTION to Strike47 Memorandum in Opposition to Motion, by Jonathan Monsarrat.(Goren, Richard)

and with that, Monsarrat had to file an Affidavit supporting that Motion to Strike the inappropriate materials filed by Zaiger.  By this time, it should be apparent that Zaiger's goal was to have on the open court record materials that were being interposed for the purpose of trying to embarrass or humiliate or scandalize Monsarrat:

AFFIDAVIT in Support re51 Emergency MOTION to Strike47 Memorandum in Opposition to Motion, filed by Jonathan Monsarrat. (Goren, Richard)

Next up, Zaiger filed a Motion to Strike Monsarrat's papers, and included with it a set of Exhibits, each more ludicrous and inappropriate than the next.  Among them was the Wikipedia entry on PedoBear.  That's right -- nothing says "credible" like filing in federal court a picture and write-up on a chubby cartoon bear that molests children.

MEMORANDUM in Opposition re51 Emergency MOTION to Strike47 Memorandum in Opposition to Motion, filed by Brian Zaiger.(Randazza, Marc)
Att: 1   Exhibit A - Harvard Law Record Article,
Att: 2   Exhibit B - Monsarrat v Filcman Exs 15-16,
Att: 3   Exhibit C - Pedobear - Wikipedia,
Att: 4   Exhibit D - Somerville artist arrested - Article,
Att: 5   Exhibit E - Daily Dot Article,
Att: 6   Exhibit F - Emails between counsel,
Att: 7   Affidavit /Declaration of Trey A. Rothell

Next up, Jonathan Monsarrat's lawyer, Richard Goren, filed an Affidavit in support of the Amended Complaint and the Sealing of the scurrilous materials:

AFFIDAVIT of PLAINTIFF'S COUNSEL RICHARD GOREN in Support re45 MOTION to Seal Document43 MOTION to Amend1 Complaint filed by Jonathan Monsarrat.(Goren, Richard)
Att: 1   Exhibit A EMAIL CHAIN

Then Chief Judge Patti Saris endorsed an order allowing Jonathan Monsarrat to file his amended complaint, which is his right and which was inevitable.  When a Judge "endorses" an Order, it means he or she finds the issues and arguments so inevitable or so feeble as to not even require anything other than the word "Granted" or "Denied." In this case, it was inevitable that Jonathan Monsarrat would be allowed to file his Amended Complaint.

Chief Judge Patti B. Saris: Endorsed ORDER entered granting43 MOTION to Amend 1 Complaint (Geraldino-Karasek, Clarilde)

and then, Chief Judge Patti Saris also granted Monsarrat's Motion to Seal the Exhibits that were of a scandalous and inappropriate nature.  This also was inevitable in keeping with the civility and decency of the Court.

Chief Judge Patti B. Saris: Endorsed ORDER entered Allowed45 MOTION to Seal Exhibits C and D (Geraldino-Karasek, Clarilde)

Then the Judge entered an Order saying the Motion to Strike was moot (no longer needed) since Monsarrat had been granted the right to file his Amended Complaint with several exhibits sealed:

Chief Judge Patti B. Saris: ELECTRONIC ORDER entered finding as moot pursuant to orders entered55 and56 as to51 MOTION to Strike (Geraldino-Karasek, Clarilde)

AND FINALLY, Jonathan Monsarrat filed his Amended Complaint with the scandalous exhibits sealed from public view:

AMENDED COMPLAINT against Brian Zaiger, filed by Jonathan Monsarrat.(Goren, Richard)

SO.. How much money did Brian Zaiger spend -- and force Jonathan Monsarrat to spend -- to try to battle off Monsarrat's basic right and requirement to file an Amended complaint?  How much did Zaiger spend trying to force Jonathan Monsarrat to publicly file scandalous materials that defame and degrade himself?  It is beyond mysterious why Zaiger thinks he has the right to have such materials on his website, and even more mysterious why he thinks the federal court system would stoop to his level. 

 I estimate that this nonsense cost the parties well in excess of $10,000, and in addition, used up valuable Court time -- but not too much court time, since this Judge seems to be able to quickly sort though heaps of nonsense.  

In this court case, Brian Zaiger has proliferated his attitude of disrespect for the dignity of others and the decency and civility of society that he has demonstrated thoroughly for years on Encyclopedia Dramatica. There was absolutely no point in trying to keep the scandalous materials unsealed, other than to use them to try to further harass and defame the plaintiff, Jonathan Monsarrat.  How is that pointless maliciousness worth thousands of dollars to Zaiger? I thought he was begging for donations to his litigation fund.  

Zaiger's attempt to turn the court file into a mini version of Encyclopedia Dramatica failed.  

 * * * * * * * 

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.

* * *

Planning Against Terrorism in Protests

Planning Against Terrorism in Protests
by Susan Basko, esq.

On August 12, 2017, a man named James Alex Fields drove his car at a fast speed through a large group of protesters, as seen in the short video above.  The video is credited to Brennan Gilmore, who was present at the protest live streaming video. Mr. Fields has been arrested and charged with murder and other counts.  The protest and terror act took place in Charlottesville, Virginia.

Let's talk about protest planning and how to lessen the opportunities for similar terrorist acts.  People engaging in such violent acts are usually mentally unstable, and their acts in turn inspire other mentally unstable people.  Monkey see, monkey do.  If you are planning a protest now, you need to plan with major safety consideration in mind.

First, notice how the street in the video above is narrow, with low sidewalks and buildings closely lining each side. This bowling alley type set-up gives a driver intent on mowing down people an ideal set up.  The people are condensed and concentrated in the narrow street, with very few places to escape the car racing up from behind.

Plan your location and route in advance of your protest.  Actually go out in person, or use google street view if you cannot go in person.  Look for protective barriers. When you plan a protest, look for such things as:

  • Barriers before a street, to make it more difficult for a driver to enter.
  • High curbs.
  • On a bridge, barriers of at least one foot between the road and sidewalk.
  • Large cement planters and other large objects that can blockade a vehicle.
  • Places to escape to, such as courtyards, other streets, large buildings that are open, parks, beaches, etc. The route should have many escape routes.  
  • Avoid marches and rallies near any multi-story parking garages. These can be accessed by anyone and can be used by a sniper.

Consider asking for a police escort, so that the rear of your march is somewhat protected. However, note that in Charlottesville, the attack car plowed through the crowd of people and then smashed into another vehicle, which then smashed into a third vehicle.  Some of the worst injuries occurred to people sandwiched between the vehicles.  It may be that an attacker is less likely to drive into a marked police vehicle. It depends how brazen the attacker is.  Many such attackers plan to die as part of their attack and they may be attracted to encounters with police.

If you are holding a rally, look for a place that has protective barriers.  Most federal buildings have barriers designed specifically to prevent a car attack.  Let's look at some examples.

Federal Building, Chicago
This picture shows a Federal Building in Chicago.  Notice the large barriers.  Barriers like this should prevent most vehicles from getting past.  However, the barriers here protect only the building and the small adjacent plaza area. There are not such barriers to protect the large plaza area by the Post Office next door, which is where most protests and other public gatherings take place.  

This photo shows another Federal Building across the street.  Notice the barriers.

Plaza outside Post Office in downtown Chicago
This is the adjacent public plaza, in front of the Post Office.  This plaza lacks protection.  This is where many protest rallies are held in Chicago.  Maybe barriers should be erected?  If you hold a protest here, be aware of the dangerous layout. 

Daley Plaza, Chicago
This is Daley Plaza in Chicago, where many protest rallies are held.  Notice how the edges of the plaza are unprotected -- low curb, no barriers.  The center of the plaza is protected by a barrier of concrete benches and planters.  These are probably enough to stop or disable a vehicle.

Daley Plaza, Chicago 

Notice that the plaza center has a variety of types of barriers: concrete benches, concrete planters, steel fencing for a subway staircase, cement barrier walls for the subway, and posts.

STREET MEDICS. Another Safety Planning consideration is to be sure your protest group has trained medics in the crowd, carrying supplies.  At this article, you can see a picture of a terribly injured woman, and a second photo of her after she has been given First Aid by a Street Medic.  This street medic did an amazing job of getting this woman cleaned up and her head bandaged.  In the aftermath of this terrorist attack, having medics on hand to give First Aid while awaiting ambulances and EMTs gave crucial and probably life-saving support.  Don't expect your medics to pay for their own supplies. That should be an expense undertaken by the group.

What to Put in your Street Medic First Aid Kit:

Street Medic Guide:

High quality, experienced live streamers can provide a measure of safety because they can see and identify trouble while it is brewing.  Their videos also provide excellent witness immediately and later during any trial.  At the Charlottesville terrorist attack, live streamers provided clear views of the attack, as well as the color, make and model of the car, and a clear view of the license plate number.  This allowed for certainty in identifying and apprehending the attacker.  People of the Internet had posted the ownership and sales records of the car within minutes of the attack.  Shortly after, there was a whole history of the suspect posted online.  Shortly after, reporters visited his stunned mother.  No doubt, the videos helped shape the criminal charges and will influence any further charges.

  1. Safety First.  Know when to cancel.
  2. Rallies: Look for safety factors in any rally location: barriers, escape routes, lack of multi-story parking lots.
  3. March Routes: Look for high curbs, barriers on bridges between street and sidewalks, avoid narrow, closed-in streets, look for plenty of escape routes, consider asking for police escort.
  4. Street Medics: Recruit well-trained street medics carrying supplies.
  5. Cameras: Invite experienced live streamers and photographers.  

Monsarrat v Zaiger/ Encyclopedia Dramatica
Part 2- The Showdown

Monsarrat v Zaiger/ Encyclopedia Dramatica  
Part 2 - the Showdown  

See the earlier adventures in Part One, here.

Update July 18, 2017:  Today the scheduling hearing was held in the lawsuit that Jonathan Monsarrat, a video game developer, filed against Brian Zaiger, alleged owner of Encyclopedia Dramatica, a smear and harassment website.  Jonathan Monsarrat claims that several of his copyright-registered works were infringed on the website.

  These are the minutes of today's scheduling conference:

Electronic Clerk's Notes for proceedings held before Chief Judge Patti B. Saris: Scheduling Conference held on 7/18/2017...parties filed separate 16.b statements. Court set the following deadlines: Initial Disclosures 8/1/17; Discovery 1/12/18; Motions for Summary Judgment 2/12/18; Opposition due 2/26/18....Summary Jgm Hearing set for 3/22/2018 02:30 PM in Courtroom 19 before Chief Judge Patti B. Saris. Parties do not agree to ADR at this time. (Atty Goren, Atty Randazza, Atty Wolman by telephone)(Court Reporter: Lee Marzilli at (Molloy, Maryellen)

What does all that mean?  There was a scheduling conference with Chief Judge Patti B. Saris.  The three attorneys appeared by telephone. Attorney Goren represents Jonathan Monsarrat.  Attorneys Randazza and Wolman represent Brian Zaiger.  The "parties filed separate 16.b statements," which means the parties were not able to agree upon even the most basic timeline.  

"The parties do not agree to ADR at this time."  "ADR" is alternative dispute resolution.  That means it is a way of trying to resolve a dispute without going to trial.  One of the two main types of ADR is mediation, where the parties meet with a mediator to see if they can agree upon a resolution.  If they do agree to a resolution, it will be written up as a binding agreement or contract and submitted as a court order, where the court will have jurisdiction to enforce the agreement. The other main type of ADR is arbitration. In arbitration, the parties submit themselves to one of more arbitrators who hear evidence and make a binding decision for the parties.  That decision is also turned into a court order and enforced by the court.  The main difference between mediation and arbitration is that in mediation, the parties are free to fashion their own solution, or to walk away with no resolution, while in arbitration, the arbitrator(s) will make a mandatory binding decision.  Many lawyers say arbitration is foolish since it is like a trial, but without the proper rules of evidence and without proper procedures and protections.  On the other hand, arbitration is a lot less expensive than a court trial and much faster, too.  In this situation, the parties do not want to engage in ADR, probably because both of them think they are going to win their planned Motions for Summary Judgement.

The Court also set deadlines.  Initial Disclosures are due 8/1/17.  These disclosures are a list of mandated revelations of fact regarding the parties and the situation. 

 Discovery deadline is 1/12/18/.  Discovery is a process of requesting items from the other side, such as documents, receipts, website logs, etc.  

Discovery also includes depositions, which is where one side calls a party or witness from the other side to be questioned under oath.  Depositions are usually held in a law office conference room.  Depositions have a court reporter present.  The depositions are turned into transcripts.  Often, a deposition will be used to "impeach" a witness at trial, in other words, try to prove that a witness has changed their story since the deposition.  Depositions are extremely expensive.  The costs include the lawyers, the space, the court reporter, and the transcripts.  Many times, parties will decide to settle after some depositions, usually because it becomes apparent just how weak someone's case is or how strong someone else's witnesses are.

Motions for Summary Judgement are due on 2/12/18, with the oppositions to those motions due on 2/16/18.  It sounds as if both parties intend to file a Motion for Summary Judgement.  A Motion for Summary Judgement is when one party claims that there are no issues of material fact and that they are entitled to judgement in their favor as a matter of law.  

Motions for Summary Judgement are rarely granted, for several reasons. First, there are almost always issues of material fact.  Second, courts scrutinize a Motion for Summary Judgement very carefully before granting one, since a good many of them are appealed.   

In this case, it looks like there will be cross motions, meaning each side will be filing a Motion for Summary Judgement. The hearing on the motions will be on 3/22/2018 at 2:30 PM in Courtroom 19 before Judge Patti Saris.

What is likely to be in those motions?  Jonathan Monsarrat laid out in his complaint that he has a court order from a previous time these same copyright registered items were published on Encyclopedia Dramatica.  That court order named someone called Hannah Rosenbaum.  Mr. Monsarrat will most likely be stating in his motion that Ms. Rosenbaum was a representative of the Encyclopedia Dramatica website and that she and Mr. Zaiger are in privity, meaning they represent the same entity.  Mr. Monsarrat will need to use Discovery to find who Ms. Rosenbaum is and what is her relationship to the site and to Mr. Zaiger.  If she is or was any sort of Admin for the site, Mr. Monsarrat might have a chance at the Summary Judgement in his favor.

Brian Zaiger's Motion for Summary Judgement is likely to claim that the use of the items is Fair Use as critique or commentary.  Considering there is a prior court judgement relating to use of the items, the Fair Use argument is weakened, even though his name is not on the previous court order.  The court order apparently covers the exact identical items.

That brings the case to the end of March, 2018.  If one party is granted Summary Judgement, the case will end, but the other side can appeal the judgement.  If neither party is granted a Summary Judgement, the case will move on to the trial phase.  If there is a trial, the earliest that would probably be would be the Summer of 2018, a year from now.

This will be interesting to watch.


This is part 2 of the Big Movement Game where Boston game developer Jonathan Monsarrat is trying to smack down Encyclopedia Dramatica's shitposter overlord, Brian Zaiger, over alleged unauthorized use of Monsarrat's registered Copyright materials on the site.  In this episode, Monsarrat has filed an Answer to Zaiger's Counterlaims, as you can see below. The Answer is mostly admissions and denials of the statements Zaiger made in his Counterclaim, which you can read back at the earlier post HERE.

Monsarrat also adds his own Affirmative Defenses to the Counterclaims.  The only one I find curious, and I have to look into more, is the Third Affirmative Defense, where it is claimed that Zaiger lacks standing to make any of his Counterclaims.  On the face of this, to me this looks like an attempt to force Zaiger to admit he owns Encyclopedia Dramatica (ED) or to state who does own it.  If Zaiger is claiming to be not responsible for what goes down at ED, then he would not have standing to make Counterclaims on behalf of ED.  I could be wrong, but that is how I see the Third Affirmative Defense.  On the other hand, if Zaiger has no responsibility for ED, why is he a defendant?  This door swings both ways and is likely to hit someone hard.  Zaiger claimed in a recent Reddit AMA (Ask Me Anything) to be the owner of ED.  He also claims that his business is being ruined by the lawsuit.

What's Next? The Court has ordered a Scheduling Conference with the judge on July 18, 2017.  Such a conference is where the schedule for motions and discovery is laid out, with a tentative trial date planned.  Before that Conference, it is possible either party might try for a partial Motion for Summary Judgement, though in such a fact-intensive case, the success of any such motion is unlikely.  A motion for summary judgement states that there is no issue as to material facts and that, as a matter of law, the movant it entitled to judgement.  There is almost always a dispute as to facts, which makes the granting of summary judgements rare.