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

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