IP in Movies: The Social Network (2010)

As Jean-Luc Godard said, “Every film is the result of the society that produced it”. Cinema is a mirror of society. When the art of motion picture makes direct or indirect reference to a diversity of intellectual property (IP) issues — such as access to knowledge and social justice, freedom of creation and freedom of enterprise, counterfeiting or infringement, negotiation and settlement agreement —, this ascertains that IP has become tremendously important in our societies.

The Social Network (2010)

David Fincher

David Denby, from The New Yorker, wrote about The Social Network (David Fincher, 2010): “a movie that is absolutely emblematic of its time and place” (David Denby, Influence People, David Fincher and “The Social Network”, The New Yorker, October 4, 2010). That explains in itself why I have decided to start this series “Intellectual Property in Movies” with The Social Network. The story focuses on the famous legal battle between the founders of ConnectU (called “Harvard Connect” in the fiction) and the founders of Facebook, which raises copyright issues worthing billions of dollars..

ConnectU v. Facebook

The Social Network relates the high-profile and long-running dispute between the founder of Facebook (Mark Zuckerberg) and the founders of ConnectU (Cameron Winklevoss, Tyler Winklevoss and Divya Narendra). A large number of the public records are made available on Justia.com (see ConnectU Inc., v. Facebook Inc., and al.). According to articles from The Harvard Crimson, the dispute started in 2004 (Timothy J. McGinn, “Lawsuit Threatens To Close Facebook. ConnectU LLC seeks damages for Zuckerberg’s alleged breach of contract”, The Harvard Crimson, September 13, 2004; “Online Facebooks Duel Over Tangled Web of Authorship”, The Harvard Crimson, May 28, 2004).

In 2008, the parties participated in mediation and eventually entered into a settlement agreement. Usually, unless agreed otherwise by the parties, the content of a settlement agreement should remain undisclosed. However, for some reasons, public records reveal that “[a]t the conclusion of the mediation, the parties reached a settlement that called for the transfer of 100% of the outstanding shares of ConnectU, Inc. to Facebook, and for Facebook to transfer cash and certain shares of Facebook stock to the ConnectU Founders [and] that all parties get mutual releases as broad as possible and all cases are dismissed with prejudice.” (Facebook, Inc. v. Pacific Northwest Software, Inc., 640 F.3d 1034, 1037 (9th Cir. 2011).

Should Mere Ideas Be Protected by Intellectual Property?

Several scenes of The Social Network raise a question that concerns one of the pillars of intellectual property: should mere ideas be subject to appropriation? There is a worldwide consensus that a creation of any kind is eligible to intellectual property at the condition — among others — that the work is set out in some tangible form. A copyrightable work must also show a certain level of originality or creativity. As explained by Robert P. Merges, “[i]n copyright law, a work must be “original” to secure protection. The originality requirement protects against someone who wants to reclaim something in the public domain—an already-published book or movie. It further protects against private appropriation of broad plot elements or standards motifs that have come into common usage—so-called scenes a faire.” (Robert P. Merges, Justifying Intellectual Property, Harvard University Press, 2011).

“We have an idea we want to talk to you about”

(21min. 32s. — 24 min. 26s.)

The Winklevoss brothers and their partner Divya come to Mark and unfold the idea of developing a social network called “Harvard Connection”. They describe it with the following functionalities: users can “create [their] own page. Interests, bio, friends, pics, etc. And then people can go online, see your bio, request to be your…” The next word (was it “friend”?) was subtly cut off from the dialogue. We also know from this scene that the trio has been working on the project “for a while” and that two programmers have already put some efforts in it, which suggests that they should already have some lines of code.

The excerpt also makes reference to “an app for an MP3 player that recognizes {the user’s] taste in music“. Mark says he uploaded it for free after having rejected an offer from Microsoft. The Harvard Crimson narrates the story of this software called “Synapse”. It had an immediate success, and several companies made offers, but Mark and his acolyte Adam d’Angelo declined all of them, including one from Microsoft (S.-F. Brickman, “Not-so-artificial Intelligence”, The Harvard Crimson, October 23, 2003).

“We have an idea we want to talk to you about” (David Fincher, The Social Network, 2010) © Director: David Fincher • Producers: Scott Rudin Dana Brunetti Michael De Luca Ceán Chaffin • Screeplay: Aaron Sorkin

The Cease-and-Desist Letter

(47min. 30sec. — 48min. 48sec.)

As Eduardo and Mark are having a beer discussing monetizing possibilities, Eduardo discovers a cease-and-desist letter left on the chimney. The letter was issued by the legal representative of Cameron, Tyler and Divya’s. The wording (“to steal an idea” or “intellectual property theft“) clearly indicates that the founders of Harvard Connect pressure Mark to shut down thefacebook.com. The dialogue is amusing and interesting: “a guy who builds a nice chair doesn’t owe money to everyone who ever has built a chair, okay? They came to me with an idea, I had a better one“, Mark says. Just another way to spell out that the originality requirement “protects against private appropriation of broad plot elements or standards motifs that have come into common usage—so-called scenes a faire.” (Robert P. Merges, Justifying Intellectual Property, Harvard University Press, 2011). Mark also ensures that he didn’t use any of their code or anything.

Cease and desist letter (David Fincher, The Social Network, 2010) © Director: David Fincher • Producers: Scott Rudin Dana Brunetti Michael De Luca Ceán Chaffin • Screenplay: Aaron Sorkin

A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001)

The judicial decision referred above is certainly one of the most popular decisions related to the law of information technologies. Napster was cofounded by Shawn Fanning and Sean Parker in 1999. As a pioneer P2P platform allowing people to share their MP3 files, Napster changed the music industry forever. However, the company was facing several law suits and it was eventually ordered to shut its services down.

“There’s not a lot of money in free music…”

(58min. 04sec. — 1h. 00min. 15sec.)

Sean Parker joined Facebook in 2004 as its founding president. In this excerpt, he is having a discussion with a student from Stanford. After having revealed that he has founded Napster (described here as “an Internet company that let folks download and share music for free“), he has to admit that “[t]here’s not a lot of money in free music, even less when you’re being sued by everyone who’s ever been to the Grammys“. Later on, he comes across thefacebook.com…

Sean Parket and Napster (David Fincher, The Social Network, 2010) © Director: David Fincher • Producers: Scott Rudin Dana Brunetti Michael De Luca Ceán Chaffin • Screenplay: Aaron Sorkin

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