Greenspan v. Random House, Inc.

• Decision Date: 09 May 2012
• Docket Number: Civil Action No. 11–12000–RBC.
• Citation: 2012 Copr.L.Dec. P 30251,859 F.Supp.2d 206
• Parties: Aaron GREENSPAN, Plaintiff, v. RANDOM HOUSE, INC., Mezco, Inc., Benjamin Mezrich, Columbia Pictures Industries, Inc. a/k/a Sony Pictures a/k/a Columbia Tristar Motion Picture Group, Defendants.
• Court: U.S. District Court — District of Massachusetts

859 F.Supp.2d 206

2012 Copr.L.Dec. P 30,251

Aaron GREENSPAN, Plaintiff,

v.RANDOM HOUSE, INC., Mezco, Inc., Benjamin Mezrich, Columbia Pictures Industries, Inc. a/k/a Sony Pictures a/k/a Columbia Tristar Motion Picture Group, Defendants.

Civil Action No. 11–12000–RBC.¹

United States District Court, D. Massachusetts.

May 9, 2012.

Aaron Greenspan, Palo Alto, CA, pro se.

Marvin N. Cable, Law Offices of Marvin Cable, Northampton, MA, for Plaintiff.

Bradley H. Ellis, Stephen G. Contopulos, Sidley Austin LLP, Los Angeles, CA, Gordon P. Katz, Benjamin M. McGovern, Holland & Knight, LLP, Dustin F. Hecker, Posternak, Blankstein & Lund, Boston, MA, Kevin T. Baine, Megan A. Hughes, Williams & Connolly LLP, Washington, DC, for Defendants.

MEMORANDUM AND ORDER ON MOTION OF RANDOM HOUSE, INC., MEZCO, INC., AND BENJAMIN MEZRICH TO DISMISS WITH PREJUDICE (# 17) AND DEFENDANT COLUMBIA PICTURES INDUSTRIES, INC.'S MOTION TO DISMISS COMPLAINT (# 22)

ROBERT B. COLLINGS, United States Magistrate Judge.

I. Introduction

Events anent the creation of Facebook in 2003–2004 and the website's subsequent development have been the subject of a great deal of written commentary, a movie and substantial litigation. This case, filed seven years after Facebook was launched, is perhaps the latest example of this phenomenon.

On November 18, 2011, pro se plaintiff Aaron Greenspan (“Greenspan”) filed a five-count complaint seeking damages and injunctive relief against defendants Random House, Inc. (“Random House”), Mezco, Inc. (“Mezco”), Benjamin Mezrich (“Mezrich”), and Columbia Pictures Industries, Inc. a/k/a Sony Pictures a/k/a Columbia Tristar Motion Picture Group (collectively, “Columbia Pictures”). Greenspan, a 2004 graduate of Harvard University, is the author of a book entitled Authoritas: One Student's Harvard Admissions and the Founding of the Facebook Era ( “Authoritas”). (# 1 ¶¶ 16, 26) Random House, a New York corporation, is the publisher of a book, The Accidental Billionaires: The Founding of Facebook: A Tale of Sex, Money, Genius, and Betrayal (“ The Accidental Billionaires ”), authored by Mezrich ². (# 1 ¶¶ 2, 4, 17) According to the allegations of the complaint, The Accidental Billionaires “is an unauthorized derivative of [Greenspan's] non-fiction book Authoritas.” (# 1 ¶ 2)

Mezco ³ and Random House purportedly “sold derivative rights, including motion picture rights, in The Accidental Billionaires to” Columbia Pictures, a Delaware corporation registered to do business in Massachusetts. (# 1 ¶¶ 3, 20) Columbia Pictures made and released a movie, The Social Network (“The Film”), based on The Accidental Billionaires. (# 1 ¶ 3)

As a result of the defendants' actions, the plaintiff has advanced claims of copyright infringement in violation of the United States Copyright Act, 17 U.S.C. §§ 101 et seq. (Count I, II, III), unfair competition and false advertising in violation of section 42(a) of the Lanham Act, 15 U.S.C. § 1125(a) (Count IV), and a state law claim of defamation (Count V).

Defendants Mezrich, Mezco, and Random House have moved to dismiss with prejudice all counts of the complaint pursuant to Fed.R.Civ.P. 12(b)(6) ( # 17), and have filed a memorandum of law (# 18) and an affidavit (# 19) in support of their motion. Defendant Columbia Pictures separately has filed a Rule 12(b)(6) motion (# 22) together with a memorandum of law (# 23) and an affidavit (# 24) in support thereof. The plaintiff has submitted a combined response to the defendants' dispositive motions (# 29) along with a memorandum in law (# 29) and certain exhibits ⁴ (# 29 Exh. A–E). With leave having been granted ( see Electronic Order entered 02/13/12), both Columbia Pictures and Mezrich, Mezco and Random House filed reply briefs. (# # 39, 40) Oral argument was heard on February 16, 2012, and at this juncture the motions to dismiss are ready for decision.

II. The Facts

According to the allegations of the complaint, while an undergraduate at Harvard University in 2003, Greenspan developed an original website called houseSYSTEM with a component website called The Facebook. (# 1 ¶ 23) Thereafter plaintiff's classmate, Mark Zuckerberg (“Zuckerberg”), developed a website, now called Facebook, Inc. (“Facebook”), which incorporated some of Greenspan's ideas. (# 1 ¶ 23) A resounding success after its launch, Zuckerberg's Facebook has hundreds of millions of users worldwide. (# 1 ¶ 24) Greenspan alleges that “Zuckerberg systemically excluded Plaintiff from any recognition for contributions to his success and from the company Plaintiff had indirectly helped create.” (# 1 ¶ 25) Moreover, the plaintiff's public opposition to Zuckerberg's failure to address privacy and security problems on Facebook purportedly impaired Greenspan's own career prospects. (# 1 ¶ 25)

In order to clear the controversy surrounding the origins of Facebook, Greenspan wrote his memoir, Authoritas. (# 1 ¶ 26) An attempt to have Authoritas published by the Doubleday division of Random House was rejected. (# 1 ¶ 28) On June 1, 2008, Greenspan self-published Authoritas; a copyright on the book had been registered in the plaintiff's name with the United States Copyright Office on April 13, 2008. (# 1 ¶ 29)

Google, Inc. (“Google”) refused to advertise Authoritas because the subtitle included the word “Facebook,” which Google considered to be a trademark. (# 1 ¶ 30) Greenspan responded by petitioning the United States Trademark Office to cancel two of Facebook's registered trademarks for the term FACEBOOK. (# 1 ¶ 30) In May of 2009, Greenspan, his company Think Computer Corporation, Zuckerberg and Facebook reached a confidential settlement. (# 1 ¶ 31)

At the end of July, 2008, defendant Mezrich contacted Greenspan seeking the plaintiff's assistance on a book about the origins of Facebook. (# 1 ¶ 32) The plaintiff declined to help Mezrich, but instead referred him to the website for Authoritas. (# 1 ¶ 33) On July 14, 2009, Random House published the book penned by Mezrich entitled The Accidental Billionaires. (# 1 ¶ 36) Authoritas was listed as a secondary source in The Accidental Billionaires. (# 1 ¶ 38) Columbia Pictures produced the Film based on The Accidental Billionaires and released it on October 1, 2010. (# 1 ¶¶ 55, 61)

All three works, Authoritas, The Accidental Billionaires and the Film, detail certain meetings between Lawrence Summers, former president of Harvard University, and Harvard students. (# 1 ¶ 62) In Authoritas the meeting described involved the plaintiff while in The Accidental Billionaires and the Film, the students involved were Cameron and Tyler Winklevoss. (# 1 ¶ 62)

Further facts shall be added during the course of the discussion as necessary.

III. The Standard of Review

A Rule 12(b)(6) motion to dismiss challenges a party's complaint for failing to state a claim. In deciding such a motion, a court must “ ‘accept as true all well-pleaded facts set forth in the complaint and draw all reasonable inferences therefrom in the pleader's favor.’ ” Haley v. City of Boston, 657 F.3d 39, 46 (1 Cir., 2011) (quoting Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1 Cir., 2011)). “[T]he complaint must ‘contain sufficient factual matter ... to state a claim to relief that is plausible on its face.’ ” Haley, 657 F.3d at 46 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (further internal quotations and citation omitted) (alteration in original)). When considering a motion to dismiss, a court “may augment these facts and inferences with data points gleaned from documents incorporated into the complaint, matters of public record, and facts susceptible to judicial notice.” Haley, 657 F.3d at 46 (citing In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 15 (1 Cir., 2003)).

IV. Discussion

A. Copyright Infringement

The first three counts of the complaint, claims for copyright infringement, contributory copyright infringement, and vicarious copyright infringement respectively, shall be addressed in tandem.

To succeed on a claim of copyright infringement Greenspan must show that (1) he had “ownership of a valid copyright,” and (2) the defendants copied “constituent elements of the work that are original.” Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). The plaintiff's registration of Authoritas with the U.S. Copyright Office “constitutes prima facie evidence of ownership and originality of the work as a whole.” Johnson v. Gordon, 409 F.3d 12, 17 (1 Cir., 2005). Since the defendants have not challenged the validity of Greenspan's copyright in Authoritas, the first requirement for a copyright infringement claim is not at issue here.

The motions to dismiss address the second requirement, to wit, whether Greenspan alleges sufficient facts to establish, or from which it could plausibly be inferred, that the defendants copied his original work. This second element of a copyright infringement claim involves a two-step inquiry. Airframe Systems, Inc. v. L–3 Communications Corp., 658 F.3d 100, 105–06 (1 Cir., 2011); Situation Management Systems, Inc. v. ASP. Consulting LLC, 560 F.3d 53, 58 (1 Cir., 2009); Johnson, 409 F.3d at 18. As explained by the First Circuit, in order to establish actionable copying:

First, the plaintiff must show that copying actually occurred. This showing entails proof that, as a factual matter, the defendant copied the plaintiff's copyrighted material. Second, the plaintiff must establish that the copying is actionable by proving that the copying of the copyrighted material was so extensive that it rendered the infringing and copyrighted works substantially similar.

Johnson, 409 F.3d at 18 (internal citations and quotation marks omitted); Airframe Systems, 658 F.3d at 105;Situation Management, 560 F.3d at 58.

“In other words, ‘[n]ot all “factual” copying constitutes legally actionable copyright infringement’; the actual copying must be extensive enough to...