Aaron Greenspan, pro se, sued defendants, including Columbia
Pictures, over Benjamin Mezrich’s book The
Accidental Billionaires: The Founding of Facebook: A Tale of Sex, Money,
Genius, and Betrayal along with the movie The Social Network.
Greenspan, a 2004 Harvard grad, wrote Authoritas: One Student’s Harvard Admissions and the Founding of the
Facebook Era, which he self-published in 2008. Greenspan alleged copyright infringement, false
advertising, unfair competition, and defamation.
Greenspan allegedly developed an original website called
houseSYSTEM with a component website called The Facebook in 2003. Mark Zuckerberg’s Facebook then incorporated
some of Greenspan’s ideas, while Zuckerberg systematically excluded Greenspan
from any recognition. Adding insult to
injury, Google refused to advertise Authoritas
because the subtitle included the word Facebook (this seems to conflict with
current policy; I wonder if he’d get a different result today). Greenspan, evidently no shrinking violet,
responded by petitioning to cancel two of FB’s registered marks. In 2009, Greenspan reached a confidential
settlement with Zuckerberg and FB.
Meanwhile, in 2008, Mezrich had contacted Greenspan for help
with Mezrich’s own book. Greenspan
declined to help other than to point him to the Authoritas website. When
Mezrich’s book was published in 2009, Authoritas
was listed as a secondary source.
All three works (Authoritas,
Accidental Billionaires, and The Social Network) detail meetings
between Larry Summers and Harvard students.
Authoritas describes a meeting
involving Greenspan, while the others describe one with Cameron and Tyler
Winklevoss. Greenspan alleged that similarities between the two accounts “including
descriptions of the reception area, the receptionist's conduct, Summers'
office, Summers' conduct and manner, the appearance and conduct of Summers'
assistant, and the response of the students in the meetings” evidenced
infringement. He also identified
similarities between the account of Zuckerberg's statement in an Administrative
Board hearing in the movie and his account of his own frustrations in Authoritas.
Access was plainly not the issue. Greenspan identified several other
similarities in his attempt to identify actionable copying, including the dual
use of “Founding of Facebook” in the book titles; chapter headings “[The Cars
of] Harvard Yard” and “Veritas”; and so on.
According to Greenspan, Accidental
Billionaires’s retelling of students waiting outside Summers’s office—“sitting
next to each other on a couch that felt as old as Massachusetts Hall itself”...
“[t]he entrance to the building was perpendicular to University Hall, where the
legendary statute of John Harvard stood ...”—was similar to an account in Authoritas—“I was sitting on a plush
beige sofa in an office in Massachusetts Hall, a small rectangular building
lodged snugly next to Harvard Yard's Johnston Gate.” Likewise, in Accidental Billionaires a receptionist says, “The president will
see you now,” while in Authoritas she
says, “The President will see you in a moment.”
The other “similarities” are of the same order. The alleged similarities relating to Summers
tend to show him in an unsympathetic light, though that is hardly news. (Accidental
Billionaires: “The disdain in
Summers’s voice was palpable”; “his chubby hand”; “He ... stared at the
brothers with pure distaste in his eyes.
‘Why are you here?’”; “‘So what do you want me to do about it?” Authoritas:
“I had never observed such palpable impatience before”; “he was fat, chubby,
and slow”; “His tone indicated that I was already being ridiculed”; “‘Well,
Aaron, what do you want me to do?’”)
The subtitles/chapter titles weren’t copyrightable;
“founding of” is a cliché, “Harvard Yard” is the name of a location, and
“Veritas” is simply the Latin translation of the word “truth.” Similarly, “the president will see you,” was
an uncopyrightable cliché used to convey the idea that an individual is ready
for a meeting. Nor were “palpable” and
“chubby” protected, since copyright doesn’t protect fragmentary words and
phrases or expression dictated by functional considerations.
Copyright won’t protect the idea of waiting for a meeting,
the fact that Summers’s office was in Massachusetts Hall, or the fact that
there was furniture therein, but would protect Greenspan’s original expression
describing these things through the choice to include particular details. Similarly, Greenspan had no claim to the
ethnicity of Summers’s assistant, only to original expression describing her
taking notes. Fragmented phrases like
“what do you want me to do?” were unprotected, but Greenspan’s original
expression of Summers’s “unwelcoming manner and inability to see the students’
point of view” would enjoy copyright protection. And so on.
But even if these fragments could suggest that there was
actual copying, that’s not enough for substantial similarity. The similarities here stemmed from ideas rather than
expression. For example, “the idea of an
assistant taking notes and the fact of her ethnicity create the impression of
similarity between the two works." But no reasonable jury could conclude that enough expression had been sufficiently copied to infringe. Both sides described the layout of Summers’s
office by including certain pieces of furniture, but “the use of the desk,
shelves, and computer fall within the doctrine of scenes a faire as inherent
characteristics of an office and thus do not lead to a plausible inference of
infringement. The defendants' choice additionally to include antique-looking
side tables and an Oriental carpet as compared to the plaintiff's expression
including dark African masks undercuts any notion that the copying was so
extensive that an ordinary observer could conclude that there was unlawful
appropriation.”
Knocking on Summers was also noninfringing: “Although both
Greenspan and the defendants use similar phrases to express the idea of
Summers’ unwelcoming manner, his inability to see the students’ point of view,
and the students being upset at the system …, the five sentences that convey
these ideas are quantitatively and qualitatively insubstantial in the context
of Authoritas as a whole. Any copying
claimed … simply was not so extensive that an ordinary observer could conclude
that the defendants unlawfully appropriated the plaintiff's original
expressions.” All those things are
ideas, and “similar phrases” is just another way of saying that Greenspan was
seeking protection for scattered words.
The court noted that the parties used “similar aspects” (of
the world?) to express two different meetings with Summers, “including
describing the reception area, Summers' office, Summers' conduct and manner,
Summers' assistant's appearance and conduct, and the students' responses in the
meetings.” It seems to me that most of
these things would naturally have stayed constant from meeting to meeting—even
the student responses (speaking as someone who’s met with many students)—and
thus the descriptions would be similar because
the facts were the same. But in any
event, the court held, the meetings were “very minimal” parts of the works as a
whole, so any similarity was quantitatively and qualitatively insignificant. No
reasonable observer could find unlawful appropriation of original
expression. (Indeed, I do not see that
the court has identified original expression in these fragments, as opposed to
longer chunks of description which would be protectable.)
The court then turned to the Lanham Act claims, with a
random statement that “facts supporting bad faith” must be alleged to state an
unfair competition claim. Greenspan alleged that defendants falsely called Accidental Billionaires
nonfiction--which was wrong because it didn’t properly convey Greenspan’s role
in the origins of Facebook--bought 5-star reviews of the book, and
bulk-purchased it to put it on the bestseller list. Citing answers.com, the court said that “nonfiction
only means that the literature is based on true stories or events, not that
every statement is in fact demonstrably true.”
Greenspan didn’t allege that Accidental
Billionaires wasn’t based on true events.
He did list a bunch of errors in the book—the misuse of logarithm for
algorithm, the attribution of the wrong House to Zuckerberg, a name misspelling,
“there was no bookshelf behind the president's desk in Massachusetts Hall,”
etc. None of that made the book not
nonfiction. As the court pointed out,
two books may both be nonfiction even if they have different accounts of the
same events.
The other allegations were conclusory, and there was no
allegation that buying 5-star reviews or boosting sales numbers would influence
consumers’ buying decisions (though that’s likely true). Finally (and many other courts would have
started here), there were no allegations that the alleged misrepresentations
harmed Greenspan’s business by causing him to lose sales or goodwill.
Greenspan finally claimed defamation based on statements in Accidental Billionaires, omissions in
both works, and Mezrich’s statements in a C–SPAN interview. He alleged that Accidental Billionaires called him “Grossman” rather than
Greenspan, and used the pejorative terms “kid”/“some kid.” The book’s statement that “hardly anyone had
paid any attention to [Greenspan’s website] ... And Grossman’s site wasn't
particularly slick,” allegedly implied that his work was irrelevant and of poor
quality. This selective omission of his
role in the book and film, he alleged, withheld proper recognition from him,
amplified by Mezrich’s repeated claims that the book was “true.” (Greenspan had good reason to want his name
corrected, and it does appear that the current edition of the book has his name
right, according to Amazon’s “search inside the book” feature.)
The court held that the challenged statements in the book
weren’t reasonably susceptible of defamatory meaning. The use of the wrong name wouldn’t say
anything about Greenspan’s role, or lack thereof, in Facebook’s origins; it
wouldn’t tend to injure his reputation or subject him to scorn, hatred,
ridicule or contempt. Nor would “kid” do
so. Even an implication of immaturity or
inexperience wouldn’t be defamatory, especially in the context of descriptions
of college students. Greenspan didn’t
allege facts to show that the omission of his role in the origins of Facebook
would lead a reasonable reader to conclude that he was irrelevant (hunh?), but
even if that were a plausible inference, that still wouldn’t hold him up to
scorn, hatred, ridicule or contempt. Being robbed of proper recognition doesn’t
constitute a defamation claim. Indeed,
Greenspan didn’t claim that public unawareness damaged his reputation and
career, but rather that the damage occurred when he tried to correct the record
(and was shunted aside).
The statements in the book were also nonactionable opinion: “Then
the Greenspan kid had gone on to develop something called houseSYSTEM that had
some social elements involved in it. Greenspan had even added a Universal House
Facebook into his site, which Mark had checked out; hardly anyone had paid any
attention to it, as far as Eduardo knew ... And Greenspan's site wasn't
particularly slick, and wasn't about pictures and profiles. Mark's idea was
really different.” Opinion based on
disclosed or assumed nondefamatory facts is nonactionable, even if the opinion
is unjustified and unreasonable. The
qualifier “as far as Eduardo knew” cautioned the reader that Eduardo might not
know everything and prevented any implication of undisclosed defamatory facts. “Merely because a person signed up on a
website does not necessarily mean that the person was paying attention to the
website; whether or not anyone paid attention to Greenspan's site is a
subjective inquiry not amenable to an objective true or false resolution.” Thus, no reasonable reader would receive an
assertion of fact about the quality of Greenspan’s work. Likewise, “wasn't particularly slick” was “a
figurative and hyperbolic communication for which there is no objective
evidence to prove or disprove its falsity.”
Nor were the C-SPAN statements defamatory: “There's been a
lot of lawsuits, not just Eduardo and the Winklevosses. There's that other big
one, there's this kid, who was involved in some sort of lawsuit, about the name
‘face book.’ I don't remember how that worked out. I stand by the books. And,
you know, the things that people point out, like, this is a perfect example of
it. It's a person who has a personal beef—with Zuckerberg or with Facebook, and
they're bringing it out in the way they can in this conversation. It really has
very little to do with my book.”
Reasonable listeners couldn’t conclude that Mezrich was implying an
undisclosed defamatory fact about Greenspan’s motives. Mezrich disclosed that
he knew about the lawsuit but couldn’t remember the outcome, and that was
clearly the basis for his opinion about Greenspan’s motives for attacking Accidental Billionaires. “Whether or not this was the plaintiff's
motive cannot objectively be proven as true or false.” The defamation claims, like everything else,
were dismissed.
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