Small Justice LLC v. Xcentric Ventures LLC

United States Court of Appeals
For the First Circuit

Nos. 15-1506, 16-1085

SMALL JUSTICE LLC; RICHARD A. GOREN; CHRISTIAN DUPONT,
d/b/a Arabianights-Boston, Massachusetts

Plaintiffs, Appellants,

v.

XCENTRIC VENTURES LLC,

Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Torruella, Kayatta, and Barron,
Circuit Judges.

Richard A. Goren, with whom Law Office of Richard Goren was
on brief, for appellants.
Daniel G. Booth and Maria Crimi Speth, with whom Booth Sweet
LLP and Jaburg & Wilk, P.C. were on brief, for appellee.
Paul Alan Levy, Public Citizen Litigation Group, Christopher
Bavitz, Berkman Center for Internet and Society, Mitch Stoltz, Kit
Walsh, Corynne McSherry, on brief for amici curiae Public Citizen,
Inc. and Electronic Frontier Foundation.

October 11, 2017
 BARRON, Circuit Judge. These consolidated appeals

concern a lawsuit that involves a number of claims arising under,

respectively, federal copyright law, state tort law, and

Massachusetts's catch-all consumer protection statute, Mass. Gen.

Laws ch. 93A ("chapter 93A"). The defendant in the suit is

Xcentric Ventures, LLC ("Xcentric"), which operates a website, the

RipoffReport.com ("Ripoff Report"). The named plaintiffs are

Richard Goren ("Goren"), a Massachusetts attorney; Small Justice

LLC ("Small Justice"), a corporate entity that Goren created; and

Christian DuPont ("DuPont").1 The plaintiffs' claims all pertain

to a dispute arising from two reports that DuPont authored and

then posted on the Ripoff Report and that are highly critical of

Goren, who had provided legal representation to a plaintiff in an

unrelated matter in which DuPont was the defendant.

In the first of these appeals, we affirm the District

Court's decision to dismiss the plaintiffs' claims under

1 We note that, on September 2, 2013, the plaintiffs filed an
amended complaint that added DuPont to the case caption as a
plaintiff and that described DuPont as a party to the suit. The
amended complaint, however, did not reference DuPont in the prayer
for relief, even though it did reference Goren and Small Justice.
Xcentric contends on appeal that DuPont was not validly made a
party to the case through the amendment to the complaint. For
reasons that we will explain, we need not decide whether DuPont is
properly a party and so, like the District Court, we simply refer
to the "plaintiffs."
We also acknowledge the helpful amicus brief filed by Public
Citizen, Inc. and Electronic Frontier Foundation.

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Massachusetts law for libel and intentional interference with

prospective contractual relations, and to bar portions of the

plaintiffs' multi-faceted chapter 93A claim from going forward.

We also affirm the District Court's decision to grant summary

judgment to Xcentric as to the remaining claims. In the second

appeal, we affirm the District Court's decision to award attorney's

fees and costs to Xcentric.2

I.

Despite the meandering path of this case, the facts that

give rise to these consolidated appeals are not contested. We

thus begin by laying out the facts found by the District Court in

its rulings on Xcentric's motion to dismiss and on Xcentric's

motion for summary judgment. We then briefly recount the facts

relevant to our resolution of the second appeal, which concerns

the District Court's award of attorney's fees to Xcentric.

A.

Xcentric operates a website called the Ripoff Report.

The website's purpose is to permit consumers "to post free

complaints, called 'reports,' about companies and individuals whom

[sic] they feel have wronged them in some manner." The website

works as follows for one who wishes to post a report on it.

2Throughout the opinion, our discussion of "fees" refers to
both the costs and attorney's fees available under 17 U.S.C. §
505, as well as the costs and attorney's fees discussed in Federal
Rule of Civil Procedure 54(d).

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 Before submitting a report to be posted on the website,

the would-be poster must click through a series of screens. Those

screens ask the user to describe and to categorize the nature of

the complaint that the user wishes to post as a report.

Ultimately, a user attempting to post a report

encounters a final screen that is captioned, "Submit your Report."

Below that caption is a text box. That text box is separately

captioned, "Terms and Conditions," and contains a vertical scroll

bar on the right side. Without employing the vertical scroll bar,

a user who encounters this screen can see the very beginning --

but only the very beginning -- of what is a longer list of terms

and conditions.

One of the "Terms and Conditions" -- which, according to

the District Court, is "not visible unless a user employs the

scroll bar" -- provides: "[b]y posting information or content to

any public area of [the Ripoff Report], you automatically grant,

and you represent and warrant that you have the right to grant, to

Xcentric an irrevocable, perpetual, fully-paid, worldwide

exclusive license to use, copy, perform, display and distribute

such information and content . . . ." As the District Court noted,

in order to post a report, a user is not required to click on a

box indicating that the user has read and agreed to the text set

forth in the text box captioned, "Terms and Conditions."

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 Underneath the text box captioned "Terms and

Conditions," there is additional text that appears without any

caption above it. As is relevant here, at the time in question,

that text stated:

By posting this report/rebuttal, I attest this report is
valid. I am giving Rip-off Report irrevocable rights to
post it on the website. I acknowledge that once I post
my report, it will not be removed, even at my request.
Of course, I can always update my report to reflect new
developments by clicking on UPDATE.

Adjacent to this text is a check box. The parties agree that, to

submit a report to be posted on the website, a user of the Ripoff

Report must click on this check box. The user must then click on

the "continue" button at the bottom of the same screen.

B.

Several years ago, Goren was the subject of two negative

reports that had been posted on the Ripoff Report. The person who

posted the two reports, DuPont, had been the defendant in a lawsuit

in which Goren was representing a party suing DuPont. In the two

postings, DuPont leveled a number of criticisms regarding Goren's

character and conduct.

In response, Goren filed suit in Massachusetts state

court, under Massachusetts state law, for libel and intentional

interference with prospective contractual relations. Goren sought

both money damages and injunctive relief in the form of an order

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"enjoining [DuPont] from continuing to publish" the reports that

DuPont had posted.

DuPont did not defend the lawsuit, and Goren, after first

voluntarily dismissing those counts of the state court complaint

that sought money damages, successfully obtained a default

judgment. The state court granted Goren certain equitable relief

in connection with that default judgment. Specifically, the state

court enjoined DuPont from "continuing to publish or republish"

the two reports that DuPont had posted. The state court also

transferred to Goren "all rights in and to ownership of the

copyright" for each of the two reports that DuPont had posted.

Finally, the state court appointed Goren as DuPont's attorney-in-

fact in order to "execute and deliver a conveyance, transfer, and

assignment of all rights in and to ownership" of DuPont's copyright

in each posting to Goren. Thereafter, Goren assigned to himself

the copyright in the reports that DuPont had posted, which Goren

then assigned to Small Justice.

C.

The plaintiffs next proceeded to file this lawsuit in

federal court in Massachusetts against Xcentric, the owner of the

Ripoff Report. As amended, the plaintiffs' complaint claimed,

with respect to copyright law, a right to a declaration of Small

Justice's ownership of the copyright to the two reports that DuPont

had posted, and copyright infringement. The amended complaint

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also made claims under Massachusetts state law for libel,

intentional interference with prospective contractual relations,

and violations of chapter 93A.

The amended complaint sought both damages and equitable

relief. With respect to equitable relief, the amended complaint

sought a declaratory judgment regarding Small Justice's ownership

of the copyright to each of the postings at issue. The amended

complaint also sought preliminary and permanent injunctions that

would bar Xcentric from "continuing to publish, and/or from

republishing all or any part" of the two reports about Goren that

DuPont had posted on the Ripoff Report, and that would order

Xcentric "to take all steps necessary or appropriate to cause

Google, Yahoo and Bing to delete all cached copies of or links to"

the two negative posts.

Xcentric moved to dismiss the amended complaint in its

entirety. The District Court partially granted that motion.

Specifically, the District Court held that the Communications

Decency Act ("CDA"), 47 U.S.C. § 230, immunized Xcentric from

liability for the plaintiffs' Massachusetts law tort claims, for

libel and intentional interference with prospective contractual

relations, as well as from certain theories of liability set forth

in the plaintiffs' chapter 93A claim.

Section 230 of the CDA provides in part: "No provider

or user of an interactive computer service shall be treated as the

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publisher or speaker of any information provided by another

information content provider." 47 U.S.C. § 230(c)(1) (emphasis

added). Section 230 defines an "interactive computer service"

("ICS") as "any information service, system, or access software

provider that provides or enables computer access by multiple users

to a computer server." Id. § 230(f)(2). Subsection 230(f)(3)

then defines an "information content provider" ("ICP") as "any

person or entity that is responsible, in whole or in part, for the

creation or development of information provided through the

Internet or any other interactive computer service."

Xcentric argued in its motion to dismiss that it was

entitled to immunity under the CDA as an ICS. Xcentric contended

that the claims at issue -- all of which were related to the Ripoff

Report continuing to display DuPont's postings -- treated Xcentric

as a "publisher or speaker of . . . information provided by another

information content provider," see id. § 230(c)(1), namely,

DuPont.

In responding to Xcentric's motion, the plaintiffs did

not dispute that Xcentric was an ICS. The plaintiffs argued

instead that Xcentric was also the ICP with respect to DuPont's

postings by virtue of Xcentric having held itself out as a

copyright holder of DuPont's postings and having "direct[ed]"

internet search engines to display copies of those postings. Thus,

the plaintiffs contended, Xcentric could not assert the immunity

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conferred by the CDA as to the claims at issue, because Xcentric,

as an ICS, was not being treated by those claims as the publisher

of information provided by another ICP. Rather, the plaintiffs

argued, Xcentric was being treated, at most, as the publisher of

information content for which Xcentric itself was the ICP.

In addressing these arguments, the District Court

explained that, under our decision in Universal Commc'n Sys., Inc.

v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007), in order for

Xcentric "[t]o avail itself of [the] immunity" set forth in

§ 230(c)(1), "(1) Xcentric must be a provider or user of an [ICS];

(2) the Plaintiffs' claim is based on information provided by

another [ICP]; and (3) the claim would treat Xcentric as the

publisher or speaker of that information." The District Court

then ruled that Xcentric had made the requisite showing to trigger

CDA immunity as to each of the plaintiffs' claims that Xcentric's

motion to dismiss targeted, save for the plaintiffs' chapter 93A

claim. The District Court ruled that, due to CDA immunity, the

chapter 93A claim could go forward on only one of the three grounds

for finding liability that the District Court determined that the

plaintiffs had identified in that count of their amended complaint.

In finding CDA immunity, the District Court explained

that Xcentric was not properly considered to be an ICP with respect

to DuPont's postings because Xcentric did not "specifically

encourage[] the development of the offensive content" at issue.

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The District Court concluded that the mere acquisition of copyright

to content created by another party -- or the holding of oneself

out as the copyright holder of such content -- does not suffice to

make an entity an ICP under § 230(f)(3). The District Court

similarly concluded that "instructing Google [and other search

engines] to use, or at least by not precluding Google from using,

its automated program to acquire cached copies of the [postings]

. . . does not rise to the level of the 'creation or development

of information' that would render Xcentric an 'information content

provider' under the CDA."

Following the District Court's ruling on the motion to

dismiss, Xcentric filed a one-count breach-of-contract

counterclaim against DuPont. The case then proceeded to discovery

on that counterclaim and also on the plaintiffs' remaining claims,

which consisted of the two copyright-related claims (for,

respectively, a declaration of copyright ownership and a finding

of copyright infringement) and, in part, the chapter 93A claim.

D.

In due course, Xcentric moved for summary judgment on

the plaintiffs' remaining claims. The District Court granted that

motion in full.3

3 Subsequent to the District Court's summary judgment order,
Xcentric moved for, and was granted, dismissal of its breach of
contract counterclaim.

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 First, the District Court concluded that the plaintiffs'

copyright infringement claim failed because the District Court

determined that DuPont had "transferred copyright ownership to

Xcentric by means of an enforceable browsewrap agreement."4

According to the District Court, DuPont made that transfer pursuant

to the Ripoff Report's terms and conditions, which provided, in

part, that a user of the site agreed to "grant . . . to Xcentric

an irrevocable, perpetual, fully-paid, worldwide exclusive license

to use, copy, perform, display and distribute" the user's posting.

Even though DuPont may not have seen the full terms and conditions

prior to submitting his postings (given the configuration of the

website), the District Court reasoned, DuPont was on inquiry notice

of those terms and conditions because of the vertical scroll bar

to the right of the text box, which was captioned "Terms and

Conditions", and because of the "conspicuously visible" hyperlinks

at the bottom of each page in the submission process to the

website's "terms of service."

4 As described by the District Court: "There are two types of
contracts formed online: 'clickwrap' and 'browsewrap' agreements.
Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1175-76 (9th Cir.
2014). In a clickwrap agreement, users must select a check box or
radio button to indicate that they agree to the website's terms
and conditions. Id. In contrast, browsewrap agreements do 'not
require the user to manifest assent to the terms and conditions
expressly. A party instead gives his assent simply by using the
website.' Id. at 1176."

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 In addition, the District Court granted summary judgment

to Xcentric on the plaintiffs' claim for a declaratory judgment

that Small Justice owned the copyright to DuPont's two postings.

Finally, the District Court addressed what remained of

the plaintiffs' chapter 93A claim. Specifically, on the sole

remaining theory of chapter 93A liability, the plaintiffs

contended that it was a violation of chapter 93A § 11 for Xcentric

to inform users that it would never take down a posting for any

reason, and simultaneously to market a program, known as the

Corporate Advocacy Program ("CAP"), through which Xcentric offered

to assist customers in changing their "search engine listings . . .

from a negative to a positive."5 The plaintiffs also alleged, in

support of this ground for suing under chapter 93A, that Xcentric

marketed an "arbitration" program, through which Xcentric offered

to redact false statements contained in postings on the Ripoff

Report website. In granting summary judgment to Xcentric as to

this remaining theory of chapter 93A liability, the District Court

concluded that the plaintiffs had not shown that either the CAP or

the arbitration program caused them any injury.

5 Chapter 93A § 11 provides a private cause of action for
"[a]ny person who engages in the conduct of any trade or commerce
and who suffers any loss of money or property . . . as a result of
the use or employment by another person who engages in any trade
or commerce of an unfair method of competition or an unfair or
deceptive act or practice." The plaintiffs do not dispute the
applicability of Section 11 to the chapter 93A count of their
amended complaint.

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 Subsequent to issuing this initial summary judgment

ruling, however, the District Court appended a footnote to that

ruling that further addressed the nature of the intellectual

property interest that DuPont had conveyed to Xcentric. The

footnote first explained that insofar as 17 U.S.C. § 204 required

"a written and signed conveyance" for DuPont to transfer a

copyright to Xcentric, then DuPont's checking of the box on the

"Submit your Report" page did not suffice to effect the transfer

of the copyright in the postings from DuPont to Xcentric.6

Accordingly, and notwithstanding the District Court's initial

ruling -- issued prior to its adding of the footnote -- that

appeared to hold the opposite, the District Court found "Xcentric

was not the owner of the copyright to [DuPont's postings]."7

The footnote went on to hold, however, that when DuPont

checked the box on the "Submit your Report" page he conveyed an

irrevocable nonexclusive license to "display [his postings] in

perpetuity" to Xcentric, because 17 U.S.C. § 204's requirement for

617 U.S.C. § 204 provides, in part, that a transfer of
copyright must be effected by an "instrument of conveyance, or a
note or memorandum of the transfer . . . in writing and signed by
the owner."
7In the subsequently appended footnote, the District Court
did not separately address the plaintiffs' declaratory judgment
claim, wherein the plaintiffs sought to have Small Justice declared
the owner of the copyright, presumably because the District Court's
ruling granting summary judgment regarding copyright infringement
obviated the need to resolve that issue.

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a "written and signed conveyance" does not apply to a nonexclusive

license.8 Because Xcentric possessed an irrevocable nonexclusive

license to display DuPont's postings, the District Court found,

DuPont had "waived his right to sue Xcentric for infringement where

its use did not exceed the scope of that license."

E.

We still have one more aspect of this saga to recount.

Following the District Court's order granting Xcentric's summary

judgment motion, which was issued on March 27, 2015, Xcentric moved

on April 10, 2015 to recover attorney's fees and costs from the

plaintiffs under 17 U.S.C. § 505. Section § 505 permits the

"prevailing party" in a copyright suit to recover costs, which

include a "reasonable attorney's fee." 17 U.S.C. § 505.

Before the District Court had ruled on that motion,

however, the plaintiffs, on April 24, 2015, filed a notice of

appeal from the summary judgment order, and we docketed that appeal

as case number 15-1506. Thereafter, on September 30, 2015, the

District Court denied Xcentric's April 10 fees award motion, but

did so "without prejudice to refilling [sic] with supporting

documentation."

8 As 17 U.S.C. § 101 makes clear, such a license does not
constitute a transfer of copyright ownership, which is the subject
of 17 U.S.C. § 204.

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 Following that order on September 30, Xcentric, on

October 20, 2015, filed a renewed fees motion. The District Court

then granted that renewed motion on December 31, 2015, awarding

Xcentric over $123,000 in attorney's fees and over $1,000 in costs.

On the same date, the District Court also granted Xcentric's

separate motion, filed on October 23, 2015, in which Xcentric

requested that the plaintiffs be required to post a $30,000 appeal

bond for case number 15-1506, pursuant to Rule 7 of the Federal

Rules of Appellate Procedure, in order to proceed with that appeal.

The plaintiffs then separately appealed the rulings on

the fees and appeal bond orders. We docketed this appeal as case

number 16-1085. However, on the same day that the plaintiffs filed

their fees appeal, the plaintiffs also filed motions with the

District Court seeking to stay the fees award order pending their

appeal and to vacate the bond order. We, thereafter, notified the

plaintiffs that the notice of appeal for 16-1085 would not become

effective until the District Court disposed of the post-judgment

motions.

On May 2, 2016, the District Court denied the plaintiffs'

motions to stay the fees award and vacate the bond order. The

District Court also issued additional findings in which it further

addressed the discretionary factors identified in Fogerty v.

Fantasy, 510 U.S. 517, (1994), in support of the District Court's

December 31, 2015 fees award. That same day, the plaintiffs'

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notice of appeal in case number 16-1085 became effective. On June

1, 2016, the plaintiffs amended their notice of appeal in case

number 16-1085 to add appellate review of the denial of their

motions to stay the fees award pending appeal and to vacate the

bond order, as well as the issuance of the May 2, 2016 additional

findings in support of the fees award.9

We then, for purposes of oral argument, consolidated

this appeal with appellate case number 15-1506. We now consider

each appeal in turn.

II.

We start with the portion of the first appeal in which

the plaintiffs challenge the District Court's ruling granting

Xcentric's motion to dismiss as to the plaintiffs' libel and

intentional interference with prospective contractual relations

claims, as well as to certain aspects of the plaintiffs' chapter

93A claim.10 The District Court premised its ruling granting the

9 On January 4, 2017, this Court entered an order affirming
the District Court's order imposing an appeal bond and denying the
plaintiffs' motion to vacate the appeal bond. We, therefore, do
not address the appeal bond herein.
10 Xcentric contends that the plaintiffs' appeal is limited
to the specific order they noticed in the notice of appeal filed
on April 24, 2015 -- the District Court's summary judgment
decision, rather than its earlier decision to grant, in part,
Xcentric's motion to dismiss on the basis of immunity under the
CDA. We need not decide this issue, however. See Parkview
Adventist Med. Ctr. v. United States, 842 F.3d 757, 760 (1st Cir.
2016) (non-Article III jurisdictional defects may be bypassed if
the merits clearly favor the party asserting the defect).

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motion on the immunity that it found that § 230 of the CDA conferred

on Xcentric. We review that ruling de novo, asking "whether the

well-pleaded factual allegations, viewed in the light most

favorable to the plaintiff, state a claim for which relief can be

granted." Germanowski v. Harris, 854 F.3d 68, 71 (1st Cir. 2017)

(citing Ocasio-Hernández, v. Fortuño-Burset, 640 F.3d 1, 7 (1st

Cir. 2011)). For the reasons that follow, we affirm.

The plaintiffs appear to concede that the Ripoff Report

qualifies as an ICS under § 230 and, thus, that Xcentric enjoys

immunity under that section from claims that would treat it "as

the publisher or speaker of any information provided by another

[ICP]," 47 U.S.C. § 230(c)(1). See Klayman v. Zuckerberg, 753

F.3d 1354, 1358 (D.C. Cir. 2014) ("[A] website does not create or

develop content when it merely provides a neutral means by which

third parties can post information of their own independent

choosing online."). However, the plaintiffs contend that Xcentric

may not claim CDA immunity under § 230 because the plaintiffs

contend that those postings do not constitute "information

provided by another [ICP]." 47 U.S.C. § 230(c)(1).

According to the plaintiffs, Xcentric became the ICP

with respect to those postings in either of two ways. First,

Xcentric allegedly became the ICP by claiming "ownership of the

exclusive rights of copyright" in DuPont's postings and -- pursuant

to that claimed copyright -- "initially publish[ing], and

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continu[ing] to publish, [DuPont's] defamation on its Ripoff

Report website." Second, Xcentric allegedly became the ICP of the

information at issue because, "even assuming the initial

publication to be immune, Xcentric authorizes and directs Google

and other search engines to make copies of [the postings]." The

plaintiffs thus argue that Xcentric became an ICP when those

"search engines display copies of the defamation on their servers."

We do not agree. As we explained in Lycos, immunity

under § 230 should be "broadly construed." 478 F.3d at 418-19.

In fact, we noted there that Congress has expressed a "policy

choice . . . not to deter harmful online speech through

the . . . route of imposing tort liability on companies that serve

as intermediaries for other parties' potentially injurious

messages." Id. at 418(quoting Zeran v. Am. Online, Inc., 129 F.3d

327, 330-31 (4th Cir. 1997))(omissions in original). Given that

legislative policy choice, we do not see how we can construe the

CDA's definition of an ICP -- which provides that an ICP is a

"person or entity that is responsible . . . for the creation or

development of information[,]" 47 U.S.C. § 230(f)(3) -- to

encompass Xcentric in this case.

Such a construction of this statutory definition of an

ICP would flout Congress's intent by wrongly preventing an ICS

like Xcentric from claiming immunity. Lycos, 478 F.3d at 418. As

the plaintiffs recognize, Xcentric did not alter the content of

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the information DuPont posted such that Xcentric could be said to

have been "responsible for . . . creat[ing] or develop[ing]" that

content by reason of having actually authored it, whether in whole

or in part. In addition, as the District Court found, nothing in

the amended complaint indicates that Xcentric, simply by holding

itself out as the copyright holder of the postings or by directing

search engines to cache DuPont's postings on their websites,

"specifically encourage[d]" the content set forth in DuPont's

postings.

In fact, a sister circuit has rejected the view that an

ICS, by merely providing such direction to search engines with

respect to information the ICS has not altered, becomes an ICP of

that information. See Kimzey v. Yelp! Inc., 836 F.3d 1263, 1270-

71 (9th Cir. 2016) ("Yelp is not liable for disseminating . . .

[user-generated] content in essentially the same format to a search

engine, as this action does not change the origin of the third-

party content." (citing Ascentive, LLC v. Op. Corp., 842 F. Supp.

2d 450, 476 (E.D.N.Y. 2011))); see also Ayyadurai v. Floor64, Inc.,

No. 17-10011-FDS, 2017 WL 3896668, *17 (D. Mass. Sept. 6, 2017)

(analyzing cases from other circuits which determined that

"republishing and commenting upon user generated content, does not

constitute 'creation or development.'" (citation omitted)). And

we do not see why that conclusion should differ if the ICS also

represents that it holds the copyright. Nor are we aware of any

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precedent that requires a contrary conclusion. Accordingly, we

affirm the District Court's ruling on the motion to dismiss.

III.

We now consider the District Court's order granting

summary judgment to Xcentric. Our review here, too, is de novo.

Santos-Rodríguez v. Seastar Sols., 858 F.3d 695, 697 (1st Cir.

2017). In undertaking that review, we must assess "the record in

the light most favorable to the nonmovant and resolv[e] all

reasonable inferences in that party's favor." Id.

A.

We start with the portion of the summary judgment order

concerning the plaintiffs' two copyright claims. As to the

copyright infringement claim, the District Court concluded,

through the footnote that it appended to its initial ruling

granting summary judgment to Xcentric, that Xcentric could not be

liable for infringement due to the nonexclusive license that

Xcentric had received from DuPont. The District Court concluded

that "DuPont conveyed a nonexclusive, irrevocable license to

Xcentric to display the [two postings]" when DuPont clicked the

check box next to the accompanying text stating that a user who

posts on the Ripoff Report agrees to give an "irrevocable right[]"

to Xcentric to display his postings on the Ripoff Report website.

As a result, the District Court held, even if Xcentric was not

"the owner of the copyright to [DuPont's postings]," Xcentric could

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nevertheless "display them in perpetuity" without infringing

DuPont's copyright.

In arguing otherwise, the plaintiffs do not dispute that

"[u]ses of the copyrighted work that stay within the scope of a

nonexclusive license are immunized from infringement suits." John

G. Danielson, Inc. v. Winchester-Conant Props., Inc., 322 F.3d 26,

40 (1st Cir. 2003) (citing Graham v. James, 144 F.3d 229, 236 (2d

Cir. 1998)). The plaintiffs also do not contend, at least in their

opening brief, that Xcentric exceeded the scope of the nonexclusive

license, insofar as Xcentric had that license.11 Instead, the

plaintiffs contend that Xcentric did not obtain a valid

nonexclusive license to display DuPont's postings for two reasons.

First, the plaintiffs argue that Xcentric offered no

consideration for the irrevocable nonexclusive license that the

District Court ruled Xcentric had been given by DuPont. The

plaintiffs thus argue that, in consequence, no valid contract

11 In their reply brief, for the first time, the plaintiffs
argue the scope of the nonexclusive license was only "to post [the
defamatory report] on the website" and that Xcentric exceeded that
scope of the license by "add[ing] its notice of copyright ownership
to each report, tag[ging] the report with codes and instructions
to allow Google and other third-party search engines to index and
also to display copies of it extrinsic to the website." But,
arguments developed for the first time in a reply brief are waived.
See Braintree Labs., Inc. v. Citigroup Glob. Markets Inc., 622
F.3d 36, 44 (1st Cir. 2010) (finding waived an argument cursorily
mentioned in appellant's opening brief, as even "[t]he slight
development in the reply brief does nothing to help matters, as
arguments raised there for the first time come too late to be
preserved on appeal").

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existed that could have conveyed the license to Xcentric. In

support of this contention, the plaintiffs point to the website's

terms and conditions, which the plaintiffs contend were "subject

to change by Xcentric, at any time" and without notice to DuPont,

and that "it is undisputed that Xcentric [has redacted information]

from posted reports and has removed reports upon the request of

the author." The plaintiffs thus argue that the only possible

promises that Xcentric made to give something in consideration for

the license were "illusory" and, thus, in fact "Xcentric promised

nothing" and, therefore, "gave no consideration."

The problem with this argument, however, is that, even

if consideration is necessary in order for a party to grant an

irrevocable nonexclusive license, see 3 Nimmer on Copyright § 10.03

(Rev. ed. 2017)(explaining that "consideration is necessary to

render a nonexclusive license irrevocable"), performance can

itself constitute consideration sufficient to establish a binding

contract. And, in this case, the plaintiffs concede that Xcentric

did actually post the reports at issue. Thus, given that

performance, the plaintiffs offer no authority or persuasive

argument as to why there is insufficient consideration for the

conveyance of the irrevocable nonexclusive license in this case.

See 3 Williston on Contracts § 7:15 (4th ed. 2008) ("[T]hat the

purported consideration is invalid will not cause a subsequent

performance to be likewise invalid . . . . [A] performance which

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has been rendered needs no consideration though the promise to

give it originally did. Since the performance has been rendered

. . . and . . . received as the consideration for the promise, the

promise thereby becomes binding.").

Second, the plaintiffs contend that the irrevocable

nonexclusive license is unenforceable on public policy grounds.

The plaintiffs' argument here is that Xcentric's promise not to

remove any postings -- even if the postings are libelous -- is

contrary to the public policy "against per se libel." But, while

the plaintiffs contend that there is a "strong public policy

against per se libel[,]" the plaintiffs offer no basis for

concluding that this public policy provides a reason to hold the

nonexclusive license itself invalid. The fact that one holds such

a license does not in and of itself protect one from liability for

libeling another. Furthermore, even assuming that DuPont's

postings were per se libelous, no aspect of copyright law protects

the holder of such a license from liability for libel, and nothing

in the District Court's opinion suggests otherwise. Thus, the

plaintiffs' assertion that there is a public policy against per se

libel fails to show that this nonexclusive license may not be

enforced.

There remains only the other copyright claim to address:

the declaratory judgment claim in which the plaintiffs argue the

copyright to DuPont's two postings belongs to Small Justice and

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not to Xcentric. The plaintiffs contend that the District Court

erred insofar as it granted summary judgment to Xcentric on the

ground that Xcentric had acquired the copyright to each of DuPont's

postings.12 But the plaintiffs advance this argument only in

connection with their claim that there was no agreement that ever

effected a valid transfer of copyright and, thus, that DuPont and

not Xcentric "retained ownership of the exclusive rights of

copyright to the defamatory postings".13 We thus deemed waived any

independent contention that the District Court erred in not issuing

a ruling as to whether Small Justice validly holds copyright to

DuPont's postings. See United States v. Zannino, 895 F.2d 1, 17

12In light of the District Court's subsequently appended
footnote, it is not clear that the District Court actually issued
a ruling as to whether Small Justice, in fact, holds the copyright
to DuPont's postings. Rather, the District Court appears to have
concluded only that Xcentric is not the copyright holder.
13
The plaintiffs' only request for a declaration of ownership
in their amended complaint was a request for a declaration
confirming Small Justice's ownership of the copyright to each of
the two posts at issue. After the District Court's summary
judgment ruling and appended footnote issued, DuPont moved to
further amend the complaint to include a request for a declaration
that DuPont owned the copyright for each of the postings or,
alternatively, a declaration that the nonexclusive license DuPont
allegedly granted Xcentric was unenforceable as contrary to public
policy. The District Court denied DuPont's motion, as judgment
had already entered and DuPont failed to provide an adequate reason
for his delay in seeking the amendment, which was prejudicial to
Xcentric, "given that the Plaintiffs were aware of the facts
underlying their claim when they filed their first two complaints."
The plaintiffs did not appeal the denial of the motion to amend.

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(1st Cir. 1990). And, therefore, we need not consider this issue

further.14

B.

We turn, then, to the last remaining portion of the

plaintiffs' summary judgment challenge. This portion concerns the

plaintiffs' claim that, contrary to the District Court's ruling,

Xcentric violated chapter 93A § 11 by "advertising and operation

of its reputation restoration business." In briefing to the

District Court, the plaintiffs described the chapter 93A claim

more particularly as one that seeks to hold Xcentric liable for

its "solicitation of victims who have been defamed by works that

Xcentric has published under color of its [claimed copyright]

ownership to pay Xcentric to restore their reputation on search

engines." To support this contention on appeal, the plaintiffs

point to Xcentric's "alternative commercial fee based solutions

for the subjects of false and/or defamatory reports" -- the CAP

and the arbitration program -- "whereby for some undisclosed fee

14 We thus need not address the question of whether the
Massachusetts state court decision violated Rule 54(c) of the
Massachusetts Rules of Civil Procedure, which requires that "[a]
judgment by default shall not be different in kind from . . . that
prayed from in the demand for judgment," nor whether that court's
judgment transferring DuPont's copyright to Goren pursuant to a
default judgment is a valid transfer of copyright under 17 U.S.C.
§ 201(e). We likewise need not address whether a browsewrap
agreement may satisfy the writing requirement in 17 U.S.C. § 204.

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Xcentric would 'restore [a subject's] reputation," "by redaction

or removal of a defamatory report."

The problem for the plaintiffs, however, is that, as the

District Court correctly ruled, causation -- both "factual" and

"proximate" -- is a required element of a chapter 93A claim. Walsh

v. TelTech Sys., Inc., 821 F.3d 155, 160 (1st Cir. 2016) (citing

Hershenow v. Enterprise Rent-A-Car Co. of Bos., 840 N.E.2d 526,

535 (Mass. 2006), and McCann v. Davis, Malm & D'Agostine, 669

N.E.2d 1077, 1079 (Mass. 1996)). Moreover, as the plaintiffs

concede, with respect to a chapter 93A § 11 claim, plaintiffs must

demonstrate a causal link between Xcentric's allegedly "unfair or

deceptive" business practices and a "loss of money or property" by

the plaintiffs. Mass. Gen. Laws ch. 93A § 11. Yet the plaintiffs

do not explain how the CAP or the arbitration program caused them

any such loss.

In particular, the plaintiffs do not point to any

evidence in the record that DuPont's initial postings were

motivated or in any other way caused by the existence of CAP or

the arbitration program. Nor do the plaintiffs point to any

evidence in the record that Xcentric's Ripoff Report business

depends on individuals in Goren's position paying to participate

in one or both of the programs. Thus, the plaintiffs do not link

the money or property that they allegedly lost due to the postings

themselves to the CAP or to the arbitration program. In addition,

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the plaintiffs do not challenge the District Court's finding that

they did not incur the cost of participating in either Xcentric's

CAP or its arbitration program. Accordingly, we see no error in

this aspect of the District Court's summary judgment ruling.15

IV.

We turn, then, to the second of the consolidated appeals

at issue. In this appeal, the plaintiffs challenge the District

Court's decision to award over $123,000 in attorney's fees and

over $1,000 in costs to Xcentric. The plaintiffs argue that the

District Court erred in three different ways in awarding fees to

Xcentric. First, the plaintiffs contend, pursuant to Federal Rule

of Civil Procedure 54(d)(2)(B), that Xcentric's fees motion was

untimely. Next, the plaintiffs contend that Xcentric is not a

"prevailing party" under 17 U.S.C. § 505 and thus is not entitled

to a fees award. Third, the plaintiffs argue that the District

Court incorrectly applied the factors the Supreme Court identified

15 In support of their contention that the District Court
erred in granting summary judgment with respect to their chapter
93A claim, the plaintiffs appear to argue that a misrepresentation
at one point in the litigation by Xcentric regarding the specific
text stating the terms of the clickwrap agreement, though later
corrected, should be added to the analysis of pre-suit acts
referred to in the amended complaint for motion to dismiss
purposes. As an initial matter, and especially in light of the
correction, it is not clear that Xcentric's conduct, as alleged,
constitutes bad faith. But in any event, and more importantly, we
fail to see how Xcentric's litigation conduct, which is clearly
outside the scope of the amended complaint constitutes an
actionable claim under chapter 93A as pleaded.

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in Fogerty, to guide analysis of whether fees should be awarded in

a particular instance.

The parties agree that we review the District Court's

rulings on the fees award for abuse of discretion. See Airframe

Sys., Inc. v. L-3 Commc'ns Corp., 658 F.3d 100, 108 (1st Cir.

2011). And, for the reasons we now lay out, we reject each of the

plaintiffs' arguments for finding such an abuse. Accordingly, we

affirm the District Court's fees award.16

A.

With respect to the plaintiffs' argument concerning the

timeliness of Xcentric's fees motion, Rule 54 requires that a

motion for attorney's fees "be filed no later than 14 days after

the entry of judgment," "unless . . . a court order provides

otherwise." Fed. R. Civ. P. 54(d)(2)(B).17 As the plaintiffs

16 The plaintiffs separately appeal the District Court's
denial of the plaintiffs' motion to stay, pending appeal, the
execution of the December 31, 2015 fees award. However, as the
only arguments that the plaintiffs make on appeal that could bear
on this issue -- insofar as it is not now moot -- concern the
merits of the fees award, we reject this challenge by the
plaintiffs for the same reasons that we reject their challenge to
the fees award.
17 The parties' assume that Rule 54(d)(2) is applicable to
Xcentric's fees motion under § 505, and we proceed on that
assumption. See Evolution, Inc. v. Suntrust Bank, No. Civ. A. 01-
2409-CM, 2005 WL 1936019, at *1 (D. Kan. Aug. 8, 2005); Video-
Cinema Films, Inc. v. Cable News Network, Inc., Nos. 98 Civ.
7128(BSJ), 98 Civ. 7129(BSJ), 98 Civ. 7130(BSJ), 2003 WL 1701904,
at *2 (S.D.N.Y. Mar. 31, 2003); Mattel, Inc. v. Radio City Entm’t,
210 F.R.D. 504, 505 (S.D.N.Y. 2002); Brewer-Giorgio v. Bergman,
985 F. Supp. 1478, 1482 (N.D. Ga. 1997).

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concede, Xcentric first filed a motion for fees on April 10, 2015,

which was -- the plaintiffs agree -- within 14 days of the District

Court's March 27, 2015 summary judgment order. Thus, the

plaintiffs premise their challenge to the timeliness of the fees

motion on the following additional facts.

First, the plaintiffs point out, the District Court did

not rule on Xcentric's April 10 motion until September 30, 2015

and, in doing so, dismissed that motion. Second, the plaintiffs

note, Xcentric then filed a renewed fees motion on October 20,

2015, which was obviously more than 14 days after the District

Court's March 27 summary judgment order and more than 14 days after

the District Court's denial of Xcentric's April 10 fees motion.

Accordingly, the plaintiffs contend that the only operative fees

motion before us -- which is the renewed fees motion that the

District Court granted on December 31, 2015 -- was not timely filed

under Rule 54.

But the plaintiffs are clearly wrong. The District Court

denied Xcentric's timely filed April 10 fees motion in its

September 30 order "without prejudice to refilling [sic] with

supporting documentation."18 Thus, in denying the timely-filed

18Though the District Court denied the plaintiffs' motion for
a lack of "supporting documentation," notably the Advisory
Committee on the Federal Rules of Civil Procedure has stated that
Rule 54 "does not require that the [fees] motion be supported at
the time of filing with the evidentiary material bearing on the

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April 10 fees motion, the District Court issued "a court order

provid[ing] otherwise," id., with respect to the timing for filing

a renewed fees motion. And, thereafter, Xcentric filed a renewed

motion less than a month later.

Significantly, the District Court's September 30 order

did not provide an express time limit for Xcentric to file such a

renewed fees motion. And, insofar as the September 30 order

contained an implicit reasonableness requirement as to the timing

of the filing of such a renewed fees motion, we see no basis for

concluding that Xcentric's renewed fees motion was filed so late

as to be out of compliance with any such implied deadline. We

thus reject the argument that the fees award was premised on a

motion that was untimely under Rule 54 or in any other respect.

Cf. Pierce v. Barnhart, 440 F.3d 657, 664 (5th Cir. 2006) (finding

that, where a district court denied plaintiffs' attorney's fees

motion without prejudice, but also without a stated deadline for

refiling, "the district court gave the plaintiffs the opportunity

to refile their [fees motion] at a later date, even if their

refiling[] fell outside of the fourteen-day time period prescribed

fees. This material must of course be submitted in due course,
according to such schedule as the court may direct in light of the
circumstances of the case. What is required is the filing of a
motion sufficient to alert the adversary and the court that there
is a claim for fees, and the amount of such fees (or a fair
estimate)." Advisory Committee Note to 1993 Amendment of Fed. R.
Civ. P. 54(d)(2)(B).

- 30 -
by Rule 54(d)" and "[i]n essence, the district court provided no

time limitations for the plaintiffs' second . . . attorney's fees

[motion], which was well within the court's discretion under Rule

54(d)").

B.

We also reject the plaintiffs' contention that Xcentric

is not a "prevailing party" under 17 U.S.C. § 505.19 Specifically,

the plaintiffs argue that the District Court erred in failing to

analyze whether, under the Supreme Court's construction of § 505

in Buckhannon Bd. & Care Home, Inc. v. West Virginia Dept. of

Health & Human Res., 532 U.S. 598, 604-05 (2001), a "material

alteration of the legal relationship of the parties," coupled with

a "judicial imprimatur on the change" had occurred. According to

the plaintiffs, the District Court resolved the parties' copyright

dispute on standing grounds "without reaching the merits of

ownership."

As we have observed, however, even if a "copyright case

[is] won because the defendant failed to answer the complaint or

[is] lost because of a discovery violation by the plaintiff . . .

surely the winner could claim attorney's fees and costs" under

19Section 505 provides: "In any civil action under this title,
the court in its discretion may allow the recovery of full costs
by or against any party other than the United States or an officer
thereof. Except as otherwise provided by this title, the court
may also award a reasonable attorney's fee to the prevailing party
as part of the costs." Id. (emphasis added).

- 31 -
§ 505. InvesSys, Inc. v. McGraw-Hill Cos., 369 F.3d 16, 20 (1st

Cir. 2004); cf. CRST Van Expedited, Inc. v. EEOC, 136 S. Ct. 1642,

1646, 1951 (2016) (noting that the Court has interpreted "the term

'prevailing party' in various fee-shifting statutes [including

§ 505] . . . in a consistent manner" and holding that under a

different fees statute, a party "may prevail even if the court's

final judgment rejects [the opposing party's] claim for a nonmerits

reason"). We thus do not see how this contention by the plaintiffs

provides a basis for finding that the District Court abused its

discretion in concluding that Xcentric was a "prevailing party"

under § 505.

C.

Finally, the plaintiffs contend that the District Court

abused its discretion in applying the nonexclusive Fogerty factors

that the Supreme Court has identified to guide district courts in

awarding attorney's fees. Here, too, we disagree.

In Fogerty, the Supreme Court identified the following

"nonexclusive factors" that courts should consider in making

awards of attorney's fees under § 505, provided that "such factors

are faithful to the purposes of the Copyright Act and are applied

to prevailing plaintiffs and defendants in an evenhanded manner":

"frivolousness, motivation, objective unreasonableness (both in

the factual and in the legal components of the case) and the need

in particular circumstances to advance considerations of

- 32 -
compensation and deterrence." 510 U.S. at 534 n.19. On appeal,

the plaintiffs contend that the District Court erred in applying

these factors in several respects.

First, the plaintiffs contend that their litigation

advanced the purposes of the Copyright Act, and thus that the

District Court's application of the Fogerty factors was not

"faithful to the purposes" of that Act. The plaintiffs base this

contention on the fact that their lawsuit clarified for future

litigants that "the writing requirement of 17 U.S.C. § 204 makes

a browsewrap agreement insufficient to effectuate a transfer of

copyright." The plaintiffs further contend that this litigation

raised a number of other "novel and complex issues."20 And,

finally, the plaintiffs argue that they litigated the case in good

faith and that the District Court was wrong to conclude that the

factors of compensation and deterrence supported Xcentric's fees

award.

The Supreme Court has emphasized, however, that "§ 505

confers broad discretion on district courts and, in deciding

whether to fee-shift, they must take into account a range of

20 Those issues included (1) "[w]hether DuPont granted
Xcentric an exclusive license when he checked the box"; (2)
"[w]hether the copyright assignment from DuPont to Goren and Small
Justice pursuant to the Superior Court judgment was a valid
transfer of copyright"; (3) "[t]he scope of the copyright Xcentric
claimed to own (but did not)"; and (4) "[w]hether an [ISP] that
claims copyright ownership over defamatory content becomes
responsible for it, thus eliminating its [CDA] immunity."

- 33 -
considerations beyond the reasonableness of litigating positions."

Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979, 1988 (2016).

We, too, have explained that review of a district court's

application of the Fogerty factors is "extremely deferential,"

such that "we will set aside a fee award only if it clearly appears

that the trial court ignored a factor deserving significant weight,

relied upon an improper factor, or evaluated all the proper factors

(and no improper ones), but made a serious mistake in weighing

them." T-Peg, Inc. v. Vermont Timber Works, Inc., 669 F.3d 59,

61-62 (1st Cir. 2012) (citation and quotation marks omitted).

After all, "the trial court is in the best position to gauge the

bona fides of a request for fees." Spooner v. EEN, Inc., 644 F.3d

62, 70 (1st Cir. 2011). And, here, we conclude that with respect

to the Fogerty factors, the District Court did not abuse the broad

discretion that § 505 confers in awarding fees to Xcentric.

As in T-Peg, the District Court "provided plenty of

reasoning in support of its award" -- offering "explanation and

analysis" that was "not just reasonable but thoughtful." 669 F.3d

at 63-64. Regarding whether the plaintiffs' claims "were

objectively unreasonable under Fogerty," the District Court

explained that, although it was "not prepared to say that the

[plaintiffs'] claims were wholly without merit, or that

[p]laintiffs' appeal regarding same [was] frivolous," "the legal

and factual basis for same" was "at best questionable." And this

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conclusion tracked the District Court's detailed analysis in its

order granting Xcentric's motion for summary judgment on the

copyright-related claims.

With regard to "[t]he Fogerty factors of compensation

and deterrence," moreover, the District Court concluded that the

fees award was supported by "[t]he protracted nature of the case,

lasting more than two years," and because "Xcentric [, as the

defendant,] litigated without the prospect of an award of damages"

and that "the award it [sought] regarding fees and costs would

vindicate its defense on the merits." The District Court further

concluded that the "degree of success Xcentric obtained also

support[ed] an award," as "Xcentric prevailed on all of

[p]laintiffs' claims," and "Xcentric's sole counterclaim was

dismissed not on the merits, but on its own motion."

The plaintiffs also contend that the fees award is

problematic because they litigated in good faith. However, we

have explained that Fogerty "expressly rejected the practice of

requiring a showing of . . . bad faith before a prevailing [party]

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could be awarded attorney's fees." See Airframe Sys., 658 F.3d at

108. We thus affirm the fees award.21

V.

For the foregoing reasons, we affirm the District

Court's March 2014 partial grant of Xcentric's motion to dismiss,

the District Court's March 2015 grant of summary judgment in favor

of Xcentric, the District Court's December 31, 2015 fees award

order, and the District Court's May 2, 2016 orders related to the

fees award.

21
The plaintiffs separately contend that the District Court
abused its discretion by making a finding as to prevailing hourly
rates that they contend was impermissibly based solely on
Xcentric's attorneys' affidavits. The plaintiffs, however, do not
dispute that Xcentric submitted a 2013 survey done by the American
Intellectual Property Law Association documenting prevailing rates
in the Boston area, or that Xcentric referenced recent fee awards
made by federal district judges in Massachusetts. We thus conclude
that the District Court did not abuse its discretion in concluding
that the record reflects that "actual attorney rates billed were
less than prevailing rates."

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