Facebook, Fact, and Fiction: News, History, and Greenspan v. Random House
With its share price dropping another $0.65 at close yesterday, some writers are calling the recent Facebook IPO “the end of Facebook.” Yet while pundits are discussing its impending downfall, earlier this month in Greenspan v. Random House, Inc., the District Court of Massachusetts considered, and dismissed, a lawsuit over the origin of Facebook. Greenspan involves a copyright claim related to the story of Facebook’s founding in 2003, and reaffirms the fundamental copyright concept that facts are not copyrightable subject matter.
The case arose in 2011, two years after Random House published The Accidental Billionaires: The Founding of Facebook: a Tale of Sex, Money, Genius and Betrayal by Benjamin Mezrich (Random House: 2009). The book is a fictionalized account of Facebook’s founding, and served as the basis for the academy award winning film The Social Network (Columbia Pictures: 2010). The Plaintiff, Aaron Greenspan, who was a Harvard classmate of Facebook Founder Mark Zukerberg, self-published his memoirs about the Facebook founding in 2008 entitled Authoritas: One Student’s Harvard Admissions and the Founding of the Facebook Era (Aaron Greenspan through Think Press: 2008). In his book, Greenspan showed how he indirectly helped create Facebook through his efforts in developing an original website called “houseSYSTEM” with a component website called “The Facebook.”
Greenspan brought forward three claims in his complaint: (1) copyright infringement, particularly in regard to similarities between scenes appearing in all three works where students meet with the Harvard University President, Lawrence Summers; (2) Unfair Competition under the Lanham Act; and (3) Defamation, for being either left out from, renamed, or recast in the Mezrich book and subsequent film.
As outlined in 17 U.S.C. § 102, Copyright subsists in “original works of authorship fixed in any tangible medium of expression … form which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Literary works, such as novels and poems, are a protected category of “original works.” § 106 outlines the exclusive rights for owners of such works, including the right to reproduce the work [§ 106(1)], distribute copies of the work [§ 106(3)], and prepare derivative works based upon the copyrighted work [§106(2)]. Copyright infringement occurs when someone other than the owner does any of the actions outlined in § 106 without the owner’s permission [§ 501(a)], and is not otherwise protected by fair use or other exceptions in the act.
In his complaint, Greenspan alleged that The Accidental Billionaires was an unauthorized derivative of his book and thus violated his copyright in Authoritas. He specifically cited a scene involving a meeting between the Harvard University President, Lawrence Summers, and students, which appears in both books and the film. In Greenspan’s version, Greenspan is the student in the meeting, while in both Mezrich’s book and the subsequent film, Greenspan is replaced by the Winkelvoss twins. While this character substitution is a glaring difference between the two versions (and formed the basis for part of Greenspan’s defamation claim), Greenspan placed the locus of his copyright infringement claim in the alleged substantial similarity between the two accounts of the meeting. Particularly he claimed that Mezrich’s descriptions of the reception area, the receptionist’s conduct, the President’s office, the President’s conduct and manner, the President’s assistant’s appearance, conduct, and manner, and the behavior of the students in the meeting, were substantially similar to his own [the full list appears on pages 12 – 15 of the decision].
To bring a successful claim for copyright infringement, a plaintiff must show that (1) he or she had ownership of a valid copyright; and (2) the defendant copied “constituent elements of the work that are original.” Feist Publications, Inc. v. Rural Telephone Service Co., Inc, 499 U.S. 340, 361 (1991). On the second inquiry, the plaintiff must show both actual copying, inferred from actual or implied access to the work, and substantial similarity between the two works because of the amount of original expression copied. Johnson v. Gordon, 409 F.3d 12, 18 (1st Cir. 2005).
In Greenspan, the judge analyzed each of the nine claimed similarities in the scene, dismissing each. The judge concluded that each description was an expression of an uncopyrightable element, such as a cliché phrase, single-word translation, fragmentary word and phrase, or a functional element within a mis-en-scene. This part of the judge’s analysis seems to boil down to a fundamental copyright principle: there is no copyright in facts.
This essential ruling underlay SCOTUS’s decision in International News Service v. Associated Press, 248 U.S. 215 (1918) which celebrates its 94th birthday this year. In that case, AP sued INS for “poaching” its news wire stories by sending stories already published by AP on the east coast to its west coast publications to break first. Justice Pitney, writing for the majority, ruled that INS’s actions did not violate any copyright, since there are no copyrights in current events. He thus concluded that while there may have been an unfair competition claim considering the nature of both INS’s and AP’s business, no one entity could claim a monopolistic copyright over the facts driving the story (though the original expression of such facts could be copyrighted).
In Greenspan’s case, he fought a loosing battle on two fronts. First, Greenspan represented his book as memoir: the recording of facts as he perceived them to create a historical record. Since facts cannot be copyrighted, any basic information about the location of an event, the contents of a room, the appearance of a person, or statements made by individuals, should not be copyrightable. Period. Second, Mezrich admitted that he used Authroitas as a secondary source in researching what became his version of the story about the founding of Facebook, and included a citation to Authroitas in the bibliography to The Accidental Billionaire. Thus, he drew on Greenspan’s account of the meeting in the same way any historical fiction writer draws on memoirs, letters, and reports from the era they write about. [author’s note: admittedly, The Accidental Billionaire was marketed as “nonfiction,” however, the judge made clear in the Lanham Act claim discussion that “nonfiction” “only means that the literature is based on true stories or events, not that every statement is in fact demonstrable true.”]
In a short, The Accidental Billionaire is to Mark Zukerberg what The Other Boleyn Girl is to Mary Boleyn (Queen Elizabeth I’s aunt): both assembled from non-fiction sources, they sketch the biography of person of historical interest. The controversy with Billionaire however, is that it didn’t happen in 16th century England, it happened in 20th century America, and the players still strut the stage. Aye. There’s the rub.
By cutting off Greenspan’s copyright claim at the motion to dismiss stage, the judge sent a strong message that while individuals may have copyright in their expression of facts, the facts themselves are building blocks in the construction of an original work, and cannot be protected by copyright.
Let’s hope the First Circuit agrees.