Greenspan v. Random House - Thomson Reuters News & Insight
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2012 WL 2989930 (C.A.1) Page 1<br />
For Dockets See 12-1594<br />
United States Court of Appeals, First Circuit.<br />
Aaron GREENSPAN, Plaintiff-Appellant,<br />
v.<br />
RANDOM HOUSE, INC., Mezco, Inc., Benjamin<br />
Mezrich, a/k/a Benjamin Mezrick, Columbia Pictures<br />
Industries, Inc., a/k/a Sony Pictures, a/k/a Columbia<br />
Tristar Motion Picture Group, Defendants-Appellees.<br />
No. 12-1594.<br />
July 13, 2012.<br />
Appeal from the United States District Court for the<br />
District of Massachusetts in Case No. 11-CV-12000,<br />
Magistrate Judge Robert B. Collings<br />
Brief of Defendants-Appellees <strong>Random</strong> <strong>House</strong>, Inc.,<br />
Mezco, Inc., and Benjamin Mezrich<br />
Gordon P. Katz, Benjamin M. McGovern, Holland &<br />
Knight LLP, 10 St. James Avenue, Boston, MA 02166,<br />
(617) 523-2700, Stephen G. Contopulos, Bradley H. Ellis,<br />
Sidley Austin LLP, 555 West Fifth Street, Suite<br />
4000, Los Angeles, CA 90013, (213) 896-6000, Attorneys<br />
for Defendants-Appellees, <strong>Random</strong> <strong>House</strong>, Inc.,<br />
Mezco, Inc., and Benjamin Mezrich.<br />
*I RULE 26.1 CORPORATE DISCLOSURE STATE-<br />
MENT<br />
Pursuant to Rule 26.1 of the Federal Rules of Appellate<br />
Procedure, Defendants-Appellees Benjamin Mezrich,<br />
Mezco, Inc., and <strong>Random</strong> <strong>House</strong>, Inc., by and through<br />
its undersigned counsel, submits the following corporate<br />
disclosure statement.<br />
I. Corporate Disclosure Statement of <strong>Random</strong> <strong>House</strong>,<br />
Inc.<br />
<strong>Random</strong> <strong>House</strong>, Inc. states that it is wholly owned by<br />
Bertlesmann Publishing Group, Inc., which is in turn<br />
owned by Bertlesmann, Inc., which is in turn owned by<br />
Bertlesmann A.G. Each of these companies is privately<br />
held. However, Group Bruxelles Lambert S.A., a com-<br />
pany traded on the Brussels Stock Exchange, owns in<br />
excess of ten percent (10%) of Bertlesmann A.G.<br />
II. Corporate Disclosure Statement of Mezco, Inc.<br />
Mezco, Inc. states that it has no parent company and no<br />
publicly-held corporation owns more than ten percent<br />
(10%) of its stock.<br />
*ii TABLE OF CONTENTS<br />
I. STATEMENT OF THE CASE ... 1<br />
A. Proceedings ... 2<br />
II. STATEMENT OF THE FACTS ... 3<br />
III. SUMMARY OF ARGUMENT ... 5<br />
IV. ARGUMENT ... 6<br />
A. The Standard Of Review ... 6<br />
1. The Motion To Dismiss ... 6<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.<br />
2. The Motion For Leave To File An Amended Complaint<br />
... 7<br />
B. This Court Should Affirm The District Court's Dismissal<br />
Of The Complaint ... 8<br />
1. The District Court Appropriately Held That Plaintiff<br />
Failed To State Any Copyright Claims ... 8<br />
2. There Is No Probative Similarity Between Authoritas<br />
And The Accidental Billionaires ... 12<br />
3. There Is No Substantial Similarity Between Authoritas<br />
And The Accidental Billionaires ... 20<br />
C. Plaintiff Fails To State A Claim For Copyright Infringement<br />
Arising Out Of The Social Network As The<br />
Complaint Fails To Allege Facts Showing Either Probative<br />
Similarity Or Substantial Similarity ... 26<br />
1. Plaintiff Advances No Argument That The Film In-
2012 WL 2989930 (C.A.1) Page 2<br />
fringed His Work ... 26<br />
2. The Complaint Fails To State A Claim For Copyright<br />
Infringement Arising Out Of The Film ... 26<br />
D. The District Court Properly Dismissed The Defamation<br />
Claims ... 28<br />
*iii 1. The Statements in the Book About Which<br />
Plaintiff Complains Are, As A Matter Of Law, Not Capable<br />
Of Defamatory Meaning And/Or Are Protected<br />
Opinion ... 28<br />
a. References To Plaintiff By The Wrong Last Name<br />
Are Not Capable of Defamatory Meaning ... 29<br />
b. Referring To Plaintiff As “Kid” Is Not Defamatory ...<br />
29<br />
c. The Statements That “Hardly Anyone Paid Attention”<br />
To Plaintiff's Web Site And That His Website “Wasn't<br />
Particularly Slick” Are Not Capable Of Defamatory<br />
Meaning, And Are Protected Expressions Of Opinion In<br />
Any Case ... 30<br />
2. The Purported “Omission” Of Plaintiff From The<br />
Book And The Film Is Not Capable of Defamatory<br />
Meaning, And Cannot Be “Of And Concerning”<br />
Plaintiff In Any Event ... 31<br />
E. Plaintiff's Defamation Claim Based On The November<br />
6, 2011 C-Span Interview Fails ... 35<br />
F. The District Court Properly Dismissed Plaintiff's Unfair<br />
Competition And False Advertising Claims ... 37<br />
G. The District Court Correctly Concluded It Would Be<br />
Futile To Allow Plaintiff To Amend His Complaint ...<br />
42<br />
1. Leave To Amend A Pleading Need Not Be Granted<br />
Where, As Here, The Amendment Would be Futile ...<br />
43<br />
2. Plaintiff Adds No Additional Facts To His Claims<br />
For Copyright Infringement ... 44<br />
3. Plaintiff Fails To Allege Any Additional Facts That<br />
Rescue His Doomed Lanham Act Claim ... 44<br />
4. Plaintiff Cannot Allege Facts Supporting A RICO<br />
Claim ... 46<br />
5. Allowing Plaintiff To Amend His Defamation Claims<br />
Would Be Futile ... 48<br />
*iv a. Plaintiff Alleges No New Facts That Save His<br />
Explicit Defamation Claim ... 48<br />
b. Plaintiff's Proposed Amended Claim For Defamation<br />
By Omission Does Not Satisfy The “Of And Concerning”<br />
Standard For Defamation ... 49<br />
6. Plaintiff Cannot Make Out A Claim For Unjust Enrichment<br />
... 50<br />
7. Plaintiff Cannot Allege Facts Stating A Claim For<br />
Fraud ... 51<br />
V. CONCLUSION ... 52<br />
Cases<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.<br />
*v TABLE OF AUTHORITIES<br />
ACA Financial Guaranty Corp v. Advest, Inc., 512 F.3d<br />
46 (1st Cir. 2008) ... 7<br />
Ahmed v. Rosenblatt, 118 F.3d 886 (1st Cir. 1997) ... 7<br />
Applera Corp. v. Michigan Diagnostics, LLC, 594<br />
F.Supp.2d 150 (D. Mass. 2009) ... 38<br />
Ardorno v. Crowley Towing and Transportation Co.,<br />
443 F.3d 122 (1st Cir. 2006) ... 43<br />
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173<br />
L.Ed.2d 868 (2009) ... 6, 41<br />
Ayala-Sepulveda v. Municipality of San German, 671<br />
F.3d 24 (1st Cir. 2012) ... 26, 27<br />
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.<br />
Ct. 1955, 167 L.Ed.2d 929 (2007) ... 6, 44, 52<br />
Bessette v. Avco Financial Services, Inc., 230 F.3d 439
2012 WL 2989930 (C.A.1) Page 3<br />
(1st Cir. 2000) ... 47<br />
Blatty v. New York Times, 42 Cal.3d 1033, 728 P.2d<br />
1177 (1986) ... 34<br />
Brown v. Hartlage, 456 U.S. 45, 102 S.Ct. 1523, 71<br />
L.Ed.2d 732 (1982) ... 32<br />
Cashmere & Camel Hair Mfrs. Institute v. Saks Fifth<br />
Ave., 284 F.3d 302 (1st Cir.), cert. denied, 537 U.S.<br />
1001 (2002) ... 38, 41, 44<br />
Cavalier v. <strong>Random</strong> <strong>House</strong>, Inc., 297 F.3d 815 (9th Cir.<br />
2002) ... 18, 22, 25<br />
CMM Cable Rep, Inc. v. Ocean Coast Props., Inc., 97<br />
F.3d 1504 (1st Cir. 1996) ... 10<br />
*vi Cole v. Westinghouse Broadcasting Co., 386 Mass.<br />
303, 435 N.E.2d 1021 (1982) ... 30, 31, 37<br />
Computer Associates Intern., Inc. v. Altai, Inc., 982<br />
F.2d 693 (2d Cir. 1992) ... 11<br />
Cytologix Corp. v. Ventana Medical Systems, Inc., 2006<br />
WL 2042331 (D. Mass. July 20, 2006) ... 45<br />
Damon v. Moore, 520 F.3d 98 (1st Cir. 2008) ... 28, 29,<br />
49<br />
Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14<br />
L.Ed.2d 22 (1965) ... 52<br />
Driscoll v. Bd. of Trustees of Milton Academy, 70 Mass.<br />
App. Ct. 285, 873 N.E.2d 1177 (2007) ... 34<br />
Dunn v. Brown, 2011 WL 4499007 (D. Mass. Aug. 16,<br />
2011) ... 50<br />
Federal Trade Commission v. Klesner, 280 U.S. 19, 50<br />
S.Ct. 1, 74 L.Ed. 138 (1929) ... 45<br />
Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340,<br />
111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) ... 8, 10, 12<br />
Franklin v. Ciroli, 865 F. Supp. 947 (D. Mass. 1994) ...<br />
27<br />
Frappier v. Countrywide Home Loans, Inc., 645 F.3d 51<br />
(1st Cir. 2011) ... 50<br />
Gates Rubber Co. v. Bando Chemical Industries, Ltd., 9<br />
F.3d 823 (10th Cir. 1993) ... 11<br />
Hayduk v. Lanna, 775 F.2d 441 (1st Cir. 1985) ... 52<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.<br />
In re Compact Disc, 456 F.Supp.2d 131 (D. Me. 2006)<br />
... 47<br />
*vii John G. Danielson, Inc. v. Winchester-Conant<br />
Properties, Inc., 322 F.3d 26 (1st Cir. 2003) ... 50<br />
Johnson & Johnson v. Carter-Wallace, Inc., 631 F.2d<br />
186 (2d Cir. 1980) ... 41, 42, 43<br />
Johnson v. Gordon, 409 F.3d 12 (1st Cir. 2005) ...<br />
passim<br />
Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984) ...<br />
22<br />
Lyons v. Globe <strong>News</strong>paper Co., 415 Mass. 258, 612<br />
N.E.2d 1158 (1993) ... 31<br />
Maine State Bldg. & Constr. Trades Council v. U.S.<br />
Dep't of Labor, 359 F.3d 14 (1st Cir. 2004) ... 7<br />
Mass. Eye & Ear Infirmary v. QLT Phototherapeutics,<br />
Inc., 552 F.3d 47 (1st Cir. 2009) ... 50<br />
Matthews v. Freedman, 157 F.3d 25 (1st Cir. 1998) ...<br />
10<br />
McCabe v. Rattiner, 814 F.2d 839 (1st Cir. 1987) ... 31<br />
McNamee v. Jenkins, 52 Mass. App. Ct. 503, 754<br />
N.E.2d 740 (2001) ... 34, 35, 40<br />
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241<br />
94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) ... 32<br />
New England Tractor-Trailer Training of Conn., Inc. v.<br />
Globe <strong>News</strong>paper Co., 395 Mass. 471, 380 N.E.2d 1005<br />
(1985) ... 33, 35<br />
Puerto Rico Ports Authority v. Umpierre-Solares, 456<br />
F.3d 220 (1st Cir. 2006) ... 8
2012 WL 2989930 (C.A.1) Page 4<br />
Quaglia v. Bravo Networks, 2006 WL 3691667 (1st Cir.<br />
Dec. 15, 2006) ... 10<br />
*viii Roman-Cancel v. United States, 613 F.3d 37 (1st<br />
Cir. 2010) ... 8<br />
Rosemont Enterprises, Inc. v. <strong>Random</strong> <strong>House</strong>, Inc., 366<br />
F.2d 303 (2d Cir. 1966) ... 26<br />
Schatz v. Republican State Leadership Committee, 669<br />
F.3d 50 (1st Cir. 2012) ... 6, 7<br />
Sharratt v. Housing Innovations, Inc., 310 N.E.2d 343<br />
(1974) ... 33<br />
Sipple v. Chronicle Publishing Co., 154 Cal.App.3d<br />
1040, 201 Cal. Rptr. 665 (1984) ... 52<br />
Taylor v. American Chemistry Council, 576 F.3d 16 (1st<br />
Cir. 2009) ... 51<br />
Wytrwal v. Saco School Bd., 70 F.3d 165 (1st Cir. 1995)<br />
... 26<br />
Yankee Candle Co., Inc. v. Bridgewater Candle Co.,<br />
LLC, 259 F.3d 25 (1st Cir. 2001) ... 9, 20<br />
Yohe v. Nugent, 321 F.3d 35 (1st Cir. 2003) ... 31, 37<br />
Statutes<br />
15 U.S.C. § 1125(a) ... 44<br />
18 U.S.C. § 1961(1) ... 47<br />
Other Authorities<br />
Fed. R. App. P. 28(i) ... 5<br />
Fed. R. Civ. P. 9(b) ... 47, 52<br />
Fed. R. Civ. P. 12(b)(6) ... 6, 43<br />
Fed. R. Civ. P. 15(a) ... 43<br />
*IX REASONS WHY ORAL ARGUMENT<br />
SHOULD NOT BE HEARD<br />
Defendants-Appellees <strong>Random</strong> <strong>House</strong>, Inc., Mezco,<br />
Inc., and Benjamin Mezrich respectfully submit that,<br />
because the district court's orders granting appellees'<br />
motions to dismiss pursuant to Federal Rule of Civil<br />
Procedure 12(b)(6) and denying appellant's motion for<br />
leave to amend are plainly correct and implicate no unsettled<br />
questions of law, oral argument is unnecessary.<br />
I. STATEMENT OF THE CASE<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.<br />
This case is the latest front in plaintiff-appellant Aaron<br />
<strong>Greenspan</strong>'s years long campaign for public recognition<br />
of his supposed role in the creation of facebook.com<br />
(“Facebook”). While plaintiff's crusade was previously<br />
aimed directly at Facebook, Inc. and its founder Mark<br />
Zuckerberg, who plaintiff contends stole from him the<br />
idea for Facebook, plaintiff has now turned his focus to<br />
defendants-appellees, the author (“Mezrich”) and publisher<br />
(“<strong>Random</strong> <strong>House</strong>”) of the book The Accidental<br />
Billionaires (the “Book”) and the producer (“Columbia<br />
Pictures”) of the film The Social Network (the “Film”).<br />
The core of plaintiff's case is that defendants told the<br />
story of the founding of Facebook without giving him<br />
the credit he believes he is due, and that they copied<br />
scattered elements from plaintiff's book Authoritas: One<br />
Student's Harvard Admissions and the Founding of the<br />
Facbook Era (“Authoritas”), which tells plaintiff's life<br />
story, including his version of Facebook's founding.<br />
This appeal represents nothing more than plaintiff's improper<br />
attempt to dragoon the legal system, including<br />
this Court, into forcing defendants to tell plaintiff's version<br />
of history, and it should be denied.<br />
The Complaint includes claims for copyright infringement<br />
(claims one through three), unfair competition and<br />
false advertising (claim four), and defamation (claim<br />
five). As to copyright infringement, plaintiff alleges that<br />
the depictions in the Book and the Film of a meeting<br />
between two Harvard students, the Winklevoss twins,<br />
and former Harvard University president Lawrence<br />
Summers infringes the description in Authoritas of<br />
plaintiff's own separate and unrelated meeting with<br />
Summers. As to the defamation claims, the Complaint<br />
points to certain references to plaintiff in the Book, but<br />
focuses on an alleged defamation by omission based on<br />
the Book's purported failure to accurately describe<br />
plaintiff's contributions to the creation of Facebook, and<br />
the Film's failure to mention him at all. The Complaint
2012 WL 2989930 (C.A.1) Page 5<br />
also alleges defamation based on statements Mezrich<br />
made in a November 6, 2011 interview on C-SPAN. Finally,<br />
the Complaint alleges that defendants violated the<br />
Lanham Act by marketing the Book as “nonfiction” and<br />
allegedly by buying “five-star” ads and boosting the<br />
Book onto the best-sellers list through bulk purchases.<br />
In the proposed First Amended Complaint (“FAC”),<br />
plaintiff added, based on allegations substantially similar<br />
to those in the Complaint, RICO, unjust enrichment,<br />
and fraud claims.<br />
A. Proceedings<br />
On November 18, 2011, plaintiff filed his Complaint in<br />
the United States District Court for the District of Massachusetts.<br />
Defendants <strong>Random</strong> <strong>House</strong>, Mezco, and<br />
Mezrich filed a motion to dismiss the Complaint with<br />
prejudice, and defendant Columbia Pictures filed a separate<br />
motion to dismiss. Plaintiff filed his opposition to<br />
the motions on January 17, 2012, and defendants filed<br />
reply memoranda on February 14, 2012. Oral argument<br />
was held on the motions to dismiss on February 16,<br />
2012. On February 20, 2012, while defendants' motions<br />
were pending, plaintiff filed a motion for leave to file<br />
an amended complaint, and attached the FAC. Defendants<br />
opposed plaintiff's motion. On May 9, 2012, Magistrate<br />
Judge Robert G. Collings issued orders granting<br />
defendants' motions to dismiss, and denying plaintiff's<br />
motion for leave to file an amended complaint. On May<br />
10, 2012, plaintiff filed this appeal.<br />
II. STATEMENT OF THE FACTS<br />
While a student at Harvard University, plaintiff developed<br />
a website called “houseSYSTEM,” which included<br />
a feature he called “The Facebook.” A15-16, ¶<br />
23. Plaintiff's classmate, Zuckerberg, developed the<br />
website Facebook.com. For years, plaintiff has sought<br />
public recognition for what he believes to be his contributions<br />
to Facebook. See A16, ¶ 25; A30, ¶ 76.<br />
In October 2007, plaintiff met with an editor at <strong>Random</strong><br />
<strong>House</strong> to pitch the manuscript for his book Authoritas.<br />
After <strong>Random</strong> <strong>House</strong> declined to publish the<br />
manuscript, plaintiff eventually self-published the book.<br />
Authoritas is plaintiff's life story, including his development<br />
of houseSYSTEM and his belief that Zuckerberg<br />
copied his ideas when he created Facebook. Authoritas'<br />
six page prologue depicts a meeting plaintiff had with<br />
then-Harvard University President Lawrence Summers<br />
concerning how he was treated by Harvard's Office of<br />
General Counsel over certain violations relating to his<br />
houseSYSTEM website. Authoritas at 1-6.<br />
In 2008, plaintiff petitioned the United States Patent and<br />
Trademark Office to cancel Facebook's registered trademarks<br />
for the term “Facebook.” A17, ¶ 30. In May,<br />
2009, plaintiff settled that matter with Facebook and<br />
Zuckerberg. Id., ¶ 31.<br />
In 2008, Mezrich began working on the Book, which<br />
depicts Zuckerberg's creation of facebook.com, and his<br />
founding, along with fellow Harvard student Eduardo<br />
Saverin, of Facebook, Inc. The Book focuses on the relationship<br />
between Zuckerberg and Saverin, as well as<br />
Zuckerberg's interaction with fellow Harvard students<br />
Tyler and Cameron Winklevoss.<br />
Chapter 16 of the Book depicts a meeting between the<br />
Winklevosses and Summers at Summers' office in early-<br />
2004. The meeting concerned the Winklevosses' complaint<br />
that Zuckerberg stole the idea for Facebook from<br />
them.<br />
The Accidental Billionaires was developed into a motion<br />
picture, The Social Network. Plaintiff “does not appear<br />
explicitly by name” in the Film, and no character<br />
in the Film “is intended to represent Plaintiff.” A28, ¶<br />
66.<br />
On November 6, 2011, C-SPAN televised an interview<br />
of Mezrich. During the interview, plaintiff's father<br />
called into the program and stated his belief that the<br />
Book is inaccurately described as nonfiction. In response,<br />
Mezrich stood by the description of The Accidental<br />
Billionaires as nonfiction.<br />
III. SUMMARY OF ARGUMENT [FN1]<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.<br />
FN1. Mezrich, Mezco, and <strong>Random</strong> <strong>House</strong> also<br />
adopt by reference the arguments in the brief of<br />
Defendant-Appellee Columbia Pictures. See
2012 WL 2989930 (C.A.1) Page 6<br />
Fed. R. App. P. 28(i).<br />
Through his Complaint, plaintiff tries to convert his belief<br />
that he has not been afforded proper credit for his<br />
supposed contributions to the invention of Facebook into<br />
claims for copyright infringement, defamation, false<br />
advertising and unfair competition. However, as the district<br />
court held, plaintiff cannot allege facts sufficient to<br />
support any of these claims.<br />
As to copyright, the district court correctly found no<br />
substantial similarity between Authoritas and the Book<br />
or the Film. Indeed, plaintiff has not identified any actionable<br />
similarities at all, and has instead pointed to a<br />
random scattering of unprotectible facts, ideas, isolated<br />
words and phrases, and scenes a faire. As to the Film,<br />
plaintiff does not advance any argument to the contrary<br />
in his brief.<br />
The court also correctly dismissed the defamation<br />
claims, as none of the references to plaintiff in the Book<br />
are negative, much less capable of defamatory meaning,<br />
and are for the most part non-actionable opinion. The<br />
fact of “omission” of plaintiff from the Book and the<br />
Film is likewise not capable of defamatory meaning,<br />
and does not render either work “of and concerning”<br />
plaintiff.<br />
Plaintiff also fails to state a claim under the Lanham<br />
Act, as he cannot allege any legally cognizable injury,<br />
does not identify any “commercial advertisement” containing<br />
a misrepresentation of fact, and cannot show<br />
that any purported misrepresentation was material.<br />
The district court also correctly denied plaintiff's motion<br />
for leave to amend the complaint, which added<br />
mostly argument and only a few, legally-irrelevant<br />
facts. The additions neither save plaintiff's old claims,<br />
nor support his new claims.<br />
IV. ARGUMENT<br />
A. The Standard Of Review<br />
1. The Motion To Dismiss<br />
This Court “give[s] de novo review to a Rule 12(b)(6)<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.<br />
dismissal, using the same criteria as the district court.”<br />
Schatz v. Republican State Leadership Committee, 669<br />
F.3d 50, 55 (1st Cir. 2012).<br />
To survive a motion to dismiss, a complaint must allege<br />
“enough facts to state a claim to relief that is plausible<br />
on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.<br />
544, 570, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007).<br />
When applying the Twombly standard, the court should<br />
first “isolate and ignore statements in the complaint that<br />
simply offer legal labels and conclusions or merely rehash<br />
cause-of-action elements.” Schatz at 55; Ashcroft<br />
v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173<br />
L.Ed.2d 868 (2009) (a complaint is insufficient if it<br />
provides only *7 “labels and conclusions[,] a formulaic<br />
recitation of the elements of a cause of action[, or] naked<br />
assertions devoid of further factual enhancement”).<br />
The court should then “take the well-pled (i.e. nonconclusory,<br />
non-speculative) facts as true, drawing all<br />
reasonable inferences in the pleader's favor, and see if<br />
they plausibly narrate a claim for relief.” Schatz at 55.<br />
“Plausible” is more than “merely possible” and<br />
“gauging a pleaded situation's plausibility is a ‘content<br />
specific’ job that compels [the court] ‘to draw on’ [its]<br />
‘judicial experience and common sense.’ ” Id., citing<br />
Iqbal, 129 S.Ct. at 1949-50. When reviewing the Complaint,<br />
the court may consider documents attached to or<br />
incorporated into it, facts susceptible to judicial notice<br />
and concessions plaintiff may have made in response to<br />
the motions to dismiss. Schatz at 55-56.<br />
2. The Motion For Leave To File An Amended Complaint<br />
Denial of leave to amend is reviewed “for abuse of discretion,<br />
deferring to the district court for any adequate<br />
reason apparent from the record. Maine State Bldg. &<br />
Constr. Trades Council v. U.S. Dep't of Labor, 359 F.3d<br />
14, 18 (1st Cir. 2004). One such “adequate reason” is<br />
the futility of the amendment. ACA Financial Guaranty<br />
Corp v. Advest, Inc., 512 F.3d 46, 56 (1st Cir. 2008).<br />
While liberal interpretation of pro se pleadings allows a<br />
court to intuit the correct cause of action where sufficient<br />
facts are pled, it “does not insulate a party from<br />
complying with procedural and substantive law.”
2012 WL 2989930 (C.A.1) Page 7<br />
Ahmed v. Rosenblatt, 118 *8 F.3d 886, 890 (1st Cir.<br />
1997) (pro se pleading should be dismissed where “the<br />
formal elements of the claim were stated without the requisite<br />
supporting facts”). Nor does pro se status allow<br />
the court to consider facts not alleged or incorporated in<br />
the Complaint, as plaintiff urges. Appellant's Opening<br />
Brief (“AOB”) 32; AOB Addendum 1 (“Add. 1”) at 28<br />
n.10.<br />
As to both motions, this Court is not bound by the district<br />
court's reasoning, and may affirm on “any ground<br />
made manifest by the record.” Roman-Cancel v. United<br />
States, 613 F.3d 37, 41 (1st Cir. 2010); Puerto Rico<br />
Ports Authority v. Umpierre-Solares, 456 F.3d 220, 224<br />
(1st Cir. 2006).<br />
B. This Court Should Affirm The District Court's<br />
Dismissal Of The Complaint<br />
1. The District Court Appropriately Held That<br />
Plaintiff Failed To State Any Copyright Claims<br />
To plead a claim for copyright infringement, a “plaintiff<br />
must allege plausible facts demonstrating (1) ownership<br />
of a valid copyright, and (2) copying of constituent elements<br />
of the work that are original.” Feist Publ'ns, Inc.<br />
v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct.<br />
1282, 113 L.Ed.2d 358 (1991); Johnson v. Gordon, 409<br />
F.3d 12, 18 (1st Cir. 2005). Only the second element,<br />
whether plaintiff has adequately alleged “wrongful<br />
copying,” is at issue here. Johnson, 409 F.3d at 18.<br />
*9 Determining whether there has been wrongful copying<br />
involves a two-step process. The first addresses<br />
whether the alleged infringer actually copied protected<br />
material. Id. Where there is no direct evidence of copying,<br />
this prong may be satisfied through evidence that<br />
the defendant had access to the copyrighted work and<br />
that “the two works are so similar that the court may infer<br />
that there was factual copying.” Id., quoting Lotus<br />
Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807, 813 (1st<br />
Cir. 1995). [FN2] This degree of similarity is called<br />
“probative similarity.” Id.<br />
FN2. For purposes of the underlying motion to<br />
dismiss and this appeal only, access is as-<br />
sumed.<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.<br />
The second inquiry, reached only if probative similarity<br />
is established, addresses whether the copying is legally<br />
actionable. Id. The answer to that question turns on<br />
whether the copying is “so extensive that it rendered the<br />
infringing and copyrighted works substantially similar.”<br />
Yankee Candle Co., Inc. v. Bridgewater Candle Co.,<br />
LLC, 259 F.3d 25, 33 (1st Cir. 2001). To determine substantial<br />
similarity, this Court uses the “reasonable observer”<br />
test, which asks “whether the accused work is so<br />
similar to the plaintiff's work that an ordinary reasonable<br />
person would conclude that the defendant unlawfully<br />
appropriated the plaintiff's protected expression by<br />
taking material of substance and value.” Yankee Candle,<br />
259 F.3d at 33; see also Johnson, 409 F.3d at 18.<br />
*10 The most fundamental tenet of copyright law is that<br />
it protects only the original expression of an idea, not<br />
“the ideas themselves or banal expressions of them.”<br />
Johnson, 409 F.3d at 19. Because of this<br />
“idea/expression” dichotomy, when applying both the<br />
“probative similarity” and “substantial similarity” tests,<br />
the court must consider only the protected expressive<br />
elements. Id. at 18. Therefore, “a court must engage in<br />
dissection of the copyrighted work by separating its original,<br />
protected expressive elements from those aspects<br />
that are not copyrightable because they represent unprotected<br />
ideas or unoriginal expressions.” Id. at 19. (“the<br />
requirement of originality cuts across both of these similarity<br />
criteria”); see also Matthews v. Freedman, 157<br />
F.3d 25, 27 (1st Cir. 1998).<br />
A number of rules flow from this basic principle, three<br />
of which have particular relevance here. First, “there<br />
can be no valid copyright in facts,” Feist, 499 U.S. at<br />
345. This is true of all facts, “scientific, historical, biographical,<br />
and news of the day.” Id. at 348 (citation and<br />
internal quotation omitted). Second, “copyright law<br />
denies protection to fragmentary words and phrases,” as<br />
such elements “do not exhibit the minimal level of creativity<br />
necessary to warrant copyright protection.”<br />
CMM Cable Rep, Inc. v. Ocean Coast Props., Inc., 97<br />
F.3d 1504, 1519 (1st Cir. 1996). Third, “stock scenes or<br />
elements that necessarily flow from a common idea” --<br />
“scenes-a-faire” -- also cannot form the basis of a copy-
2012 WL 2989930 (C.A.1) Page 8<br />
right claim. Id. at 1522 n.25; see also Quaglia v. Bravo<br />
Networks, 2006 WL *11 3691667 at *1 (1st Cir. Dec.<br />
15, 2006) (unpublished), quoting MyWebGrocer, LLC v.<br />
Hometown Info, Inc., 375 F.3d 190, 194 (2d Cir. 2004)<br />
(“Scenes a faire are unprotectible elements that follow<br />
naturally from a work's theme rather than from an author's<br />
creativity”).<br />
Relying on cases from the Tenth and Second Circuits,<br />
plaintiff seeks to avoid these rules, advocating for a “a<br />
holistic analysis involving ‘selection and/or arrangement’<br />
of facts, including ‘otherwise nonprotected information’.”<br />
AOB 15. However, plaintiff's own authorities<br />
for what would be a significant departure from this<br />
Court's long-settled analytical framework do not support<br />
him. In Gates Rubber Co. v. Bando Chemical Industries,<br />
Ltd., 9 F.3d 823 (10th Cir. 1993), the court did<br />
suggest that, at least in the context of computer software,<br />
a preliminary unfiltered comparison of the works<br />
may aid a court in discerning a pattern of copying that<br />
might otherwise not be obvious. But the court was clear<br />
that “[s]uch a preliminary step does not obviate the ultimate<br />
need to compare just the protected elements of the<br />
copyrighted program with the alleged infringing program.”<br />
Id. at 841. In Computer Associates Intern., Inc.<br />
v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992), the Second<br />
Circuit announced a construct -- the<br />
“Abstraction-Filtration-Comparison” test -- for determining<br />
substantial similarity in computer programs that<br />
emphasizes the need to filter out unprotectible material.<br />
Id. at 706-711. These courts, then, do not deviate from<br />
this Court's mandate, derived from the “predicate *12<br />
requirement of originality” -- the sine qua non of copyright<br />
law, Feist, 499 U.S. at 348 --, that an overall impression<br />
of similarity does not demonstrate unlawful<br />
copying if that impression “flows from similarities as to<br />
elements that are not themselves copyrightable.” Johnson,<br />
409 F.3d at 19.<br />
Although he neither alleged it in the Complaint nor<br />
made the argument below, plaintiff now contends that<br />
his selection and arrangement of facts are protectible<br />
and that it is those elements that Mezrich copied. AOB<br />
14. It is true that the selection and arrangement of otherwise<br />
unprotectible facts in a nonfiction work such as a<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.<br />
compilation can provide the required originality to merit<br />
protection for those elements. See Feist, 499 U.S. at<br />
349. But here there is no such similarity between Authoritas<br />
and either the Book or the Film. Instead, they<br />
are remarkably dissimilar, and application of the probative<br />
and substantial similarity tests leads to only one<br />
conclusion -- the copyright infringement claims fail.<br />
2. There Is No Probative Similarity Between Authoritas<br />
And The Accidental Billionaires<br />
Most, but not all, of the purported similarities between<br />
the works relate to a single scene in each book describing<br />
meetings with Harvard president Lawrence Summers.<br />
A19, ¶ 39. In his prologue and on page 285,<br />
plaintiff depicts a meeting he had with Summers to<br />
complain about his treatment at the hands of Harvard's<br />
Office of General Counsel, which had accused him of<br />
improprieties in connection with his houseSYSTEM<br />
website. Chapter 16 of the Book describes a meeting<br />
*13 between Summers and the Winklevoss twins who<br />
were there to complain about Zuckerberg's alleged<br />
breach of Harvard's honor code by, according to the<br />
twins, stealing their concepts when he developed Facebook.<br />
The descriptions of the meetings are nothing<br />
alike. Therefore, no inference of copying arises. For this<br />
reason alone, plaintiff's copyright infringement claims<br />
fail. [FN3]<br />
FN3. Based on his direct infringement claim,<br />
plaintiff also attempted to allege claims for vicarious<br />
and contributory infringement. Because<br />
they depend on the direct infringement claim,<br />
they fail along with it.<br />
The first step in the court's analysis is to filter out unprotectible<br />
material. In this case, that eliminates most, if<br />
not all, of the similarities plaintiff cites because the purported<br />
similarities are nothing more than unprotected<br />
facts and ideas or single words or fragments of words<br />
and phrases that in almost every case are not similarly<br />
expressed in any event. For example, plaintiff points to<br />
the subtitle of The Accidental Billionaires, which includes<br />
the phrase “The Founding of Facebook,” and the<br />
subtitle to Authoritas, which includes the phrase “the<br />
Founding of the Facebook era.” These are unprotectible
2012 WL 2989930 (C.A.1) Page 9<br />
banal expressions that here convey different ideas -- the<br />
creation of a company and the beginning of an era in<br />
time.<br />
Plaintiff alleges that the title of Chapter 2 of the Book,<br />
“Harvard Yard,” was copied from the title of Chapter 11<br />
of Authoritas, “The Cars of Harvard Yard.” The titles<br />
convey different ideas, and the phrase “Harvard Yard”<br />
is not protectible.<br />
*14 Plaintiff contends that the description of the<br />
Winklevoss twins sitting on a couch in a reception area<br />
outside Summers' office before their meeting begins is<br />
similar to his description of himself sitting inside Summers'<br />
office after his meeting with Summers has already<br />
started. But, even if protectible, plaintiff's expression is<br />
not remotely similar to the material in The Accidental<br />
Billionaires to which he compares it. In Authoritas,<br />
plaintiff is in Summers' office “sitting on a plush beige<br />
sofa in Massachusetts Hall, a small rectangular building<br />
lodged snugly next to Harvard Yard's Johnston Gate.”<br />
Authoritas at 1. In The Accidental Billionaires, the<br />
Winklevosses are waiting in the reception area “sitting<br />
next to each other on a couch that felt as old as Massachusetts<br />
Hall itself, being gawked at by a receptionist.”<br />
Book at 123.<br />
Similarly, at page 285 of Authoritas, plaintiff describes<br />
a woman telling plaintiff that Summers is ready to see<br />
him: “ ‘The President will see you in a moment,’ the<br />
woman smiled.” Focusing on the words, “the woman”<br />
and “the president will see you,” plaintiff alleges that<br />
the following two sentences found at page 124 of The<br />
Accidental Billionaires were copied from his work:<br />
Authoritas The Accidental Billionaires<br />
Chapter 24 title: Veritas Chapter 16 title: Veritas<br />
“There was a computer with a sleek flat screen on a<br />
desk on the other side of the room, and the dark<br />
African masks resting on the shelves to my left were<br />
silently watching me think.” Pg.1<br />
“The President paused to think, tapping his foot under<br />
the table. I had never observed such palpable impatience<br />
before.” Pg.3<br />
“The woman grabbed the receiver, nodded, and then<br />
glanced in their direction. ‘The president will see you<br />
now.’ ” These fragmentary words and phrases are nothing<br />
more than unprotectible clichéd language commonly<br />
used to convey the idea that an individual is ready for a<br />
meeting.<br />
*15 Next, plaintiff notes that in his book he alludes to<br />
Summers' office as the embodiment of power by writing<br />
that the “deep shade of red” of the walls “by virtue of<br />
their location in Harvard's inner sanctum defined the<br />
word crimson,” Authoritas at 1, and compares his allusion<br />
to the direct reference in The Accidental Billionaires<br />
to Summers' office as the “ultimate power on campus.”<br />
Book at 124. The expression is again radically different.<br />
In Authoritas, plaintiff refers to an assistant motioning<br />
him “to a small sofa that was positioned across from a<br />
giant armchair,” Authoritas at 285, and compares that to<br />
the receptionist in The Accidental Billionaires waving<br />
the Winklevosses “both in [to the office], pointing to<br />
the chairs in front of the desk.” Book at 125. This is unoriginal<br />
expression that is in any event not similar.<br />
The remainder of the 21 examples of similarities called<br />
out in the Complaint are of the same ilk -- inapt comparisons<br />
between expressions of different ideas,<br />
scattered bits of unprotectible ideas, phrases, fragments<br />
and common stock scenes that alone or together do not<br />
give rise to an inference of copying:<br />
“There were bookshelves lining one wall, a huge<br />
wooden desk, a bunch of antique-looking side tables,<br />
and a small sitting area atop an Oriental carpet. On<br />
the desk, Tyler noticed a Dell desktop computer.”<br />
Pg.125<br />
“The disdain in Summers's voice was palpable.”<br />
Pg.126<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.
2012 WL 2989930 (C.A.1) Page 10<br />
“My tone of voice carried a mixture of disgust and<br />
disbelief . . .” [FN4] Pg.5<br />
“A minute or two later, the President himself walked<br />
into the room, followed by an African-American woman.”<br />
Pg.285<br />
“Nope, other door,” the assistant motioned . . .” Pg.6<br />
“I felt positively sickened. The President believed<br />
The Harvard Crimson--the same newspaper that had<br />
insinuated that he was fat, chubby, and slow--more<br />
than he believed an undergraduate who had taken the<br />
time to share a real concern at his office hours.” Pg.6<br />
“ ‘What can I do for you?’ he said. From the moment<br />
the sound of the first word left his mouth and entered<br />
my ear, I knew that our meeting would be nothing<br />
less than a verbal train wreck. His tone indicated that<br />
I was already being ridiculed.” Pg.1<br />
“There was a woman sitting across from me, notebook<br />
in hand, ready to record my thoughts and emotional<br />
state so that in ten or twenty or a hundred<br />
years, someone might dig them out of a dusty filing<br />
cabinet.” Pg.1<br />
“ ‘Nope, other door,’ the assistant motioned, pointing<br />
behind me, and setting my cheeks on fire.' ” Pg.6<br />
“I sat, dumbfounded. After five very long second,<br />
sitting like a pigeon on his couch, I regained my<br />
composure.” Pg.4<br />
“ ‘I know what the man said,’ I snapped in my mind.<br />
Outwardly, I swallowed.” Pg.4<br />
“The President's mouth twisted into a smile. ‘Well,<br />
Aaron, what do you want me to do?’ ” Pg.4<br />
“My hatred for the system--my teachers, my classes,<br />
my so-called friends, my activities--had reached new<br />
levels.” [FN6] Pg.89<br />
“ ‘There are no real channels to go through at Harvard<br />
to make a site like this.’ ” Pg.5<br />
“As they entered the office, Summers was sitting in a<br />
leather chair behind his desk, a phone pressed against<br />
his ear. A few feet away sat his executive assistant--a<br />
pleasant-looking African American woman.” Pg.125<br />
“It was truly depressing. The President of the university<br />
was telling them that they were on their own.<br />
The administration was washing its hands of the<br />
whole thing.” Pg.130-131<br />
“Slowly, Summers leaned forward, and his chubby<br />
hand...” [FN5] Pg.126<br />
“He leaned back in his chair--put his feet up on his<br />
desk, and stared at the brothers with pure distaste in<br />
his eyes.<br />
‘Why are you here?’ ” Pg.126<br />
“He glanced at the African American woman, who<br />
was dutifully taking notes; she'd already written<br />
Summers's question down across the top of a blank<br />
sheet of lined notebook paper.” Pg.126<br />
“Tyler coughed, his face turning red.” Pg.126<br />
“After he let a few seconds pass, so the man could at<br />
least pretend to reread their letter, Tyler cleared his<br />
throat.” Pg.128<br />
“ ‘So what do you want me to do about it.’ ” Pg.128<br />
”He felt...betrayed. By this man, by the system, by<br />
the university itself.” Pg.130<br />
“ ‘The university isn't equipped to handle a situation<br />
like this.’ ” [FN7] Pg.130<br />
“ ‘I do not see the instance of disrespect here,’ the “ ‘I've read your complaint. And I've read Mark's re-<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.
2012 WL 2989930 (C.A.1) Page 11<br />
President said flatly. I was shocked.” Pg.2 sponse. I don't see this as a university issue.’ ”<br />
Pg.129<br />
“ ‘What President Summers means is not that you are<br />
‘enjoying’ the fight,' his assistant said looking at<br />
President Summers, and then at me. There was an<br />
awkward silence.” Pg.4<br />
“Tyler stared at the man in shock.” [FN8] Pg.128<br />
”It was obvious from his silence that he didn't care<br />
what Tyler and Cameron did about the situation.”<br />
Pg.130<br />
“There was only one thing to do.” ”The only thing left, Tyler realized, was to go after<br />
Mark themselves.” Pg.131<br />
“ ‘I have to get out of here.’ ” Pg.6 “Eduardo felt the walls closing in. around him. He<br />
had to get out of there.” [FN9] Pg.230<br />
FN4. Contrary to the Complaint, these two phrases do not appear on the same page. The reference to Summers<br />
tapping his foot is on page 3, while the reference to “tone of voice” appears on page 5. Moreover, plaintiff's description<br />
of these two phrases as “[t]he narrator describ[ing] the personality” of President Summers is patently<br />
false. A21, Item 9. The statement regarding “tone of voice” refers to plaintiff's tone of voice, as demonstrated by<br />
the use of the pronoun “my” in his first-person narrative.<br />
FN5. Plaintiff takes these two phrases from different pages in The Accidental Billionaires in an attempt to manufacture<br />
similar “rhetorical styles.” A22, Item 11.<br />
FN6. Here, plaintiff goes so far as to pull a statement from an entirely different place in his book, page 89,<br />
where he is expressing his opinion of his high school.<br />
FN7. The statements express entirely distinct ideas: in Authoritas, the student complaining that Harvard had no<br />
process to allow for creation of a website as plaintiff had created, and in The Accidental Billionaires, the president<br />
observing that Harvard was not equipped to deal with a dispute between students over ownership of ideas.<br />
Contrary to the allegations of the Complaint, then, this statement in The Accidental Billionaires is made by Summers.<br />
Thus, plaintiff's description of the purported “identical expression” as “[t]he student posits the possibility<br />
that the situation is unprecedented” is plainly false. A23, Item 18.<br />
FN8. As demonstrated by the fact that the reference to Tyler's shock appears on the page before Summers' statement,<br />
it was not caused by Summers' statement. Plaintiff cannot juxtapose “random similarities scattered<br />
through out the works” to create the illusion of similarity where none exists. Cavalier v. <strong>Random</strong> <strong>House</strong>, Inc.,<br />
297 F.3d 815, 825 (9th Cir. 2002).<br />
FN9. Here, plaintiff has randomly plucked a phrase from page 230 of the Book that refers to a different character,<br />
Eduardo Saverin, and that has no connection whatsoever to the Winklevosses' meeting with Summers, described<br />
at pages 122-131.<br />
*19 These examples prove the opposite of what plaintiff<br />
intends: there is nothing protectible in the phrases and<br />
sentences he haphazardly rips from the books, no inference<br />
of copying can be drawn from them, and therefore,<br />
“probative similarity” does not exist. [FN10]<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.<br />
FN10. Plaintiff asserts that the district court ignored<br />
some of these alleged similarities. AOB<br />
15. He is wrong. The court considered each of
2012 WL 2989930 (C.A.1) Page 12<br />
them, but selected only some of them to discuss<br />
in detail. As to the rest, the district court<br />
noted in a footnote that they were insufficient<br />
to demonstrate probative similarity. AOB Add.<br />
1 at 12 n.6.<br />
In his brief, plaintiff adds a few examples, and recasts a<br />
few others, but they only serve to provide the exclamation<br />
point to the conclusion that there is no “probative<br />
similarity.” For example, plaintiff compares his observation<br />
that Summers' receptionist spent a lot of time<br />
sending Instant Messages using “AIM running on Windows<br />
98” with Tyler Winklevoss's observation that the<br />
receptionist was playing with her Rolodex and his mental<br />
question “[a]nd who still used Rolodexes, anyways?”<br />
AOB 16. The similarity is difficult to see.<br />
The district court's analysis could have ended here, and<br />
this Court's analysis should end here. There is no similarity<br />
between the two works, let alone “a sufficient degree<br />
of similarity [] between [Authoritas] and [The Accidental<br />
Billionaires] to give rise to an inference of actual<br />
copying.” Johnson, 409 F.3d at *20 18. However,<br />
contrary to plaintiff's assertion that the district court<br />
gave his case short shrift, AOB 10, the court indulged in<br />
the inference that if certain of plaintiff's allegations<br />
were taken as true, they “may demonstrate a sufficient<br />
degree of similarity to allow the court to find that there<br />
is probative similarity between the defendants' works<br />
and the plaintiff's protected expressions.” AOB Add. 1<br />
at 18-19. [FN11] The district court then applied the substantial<br />
similarity test and correctly concluded that the<br />
works were not substantially similar.<br />
FN11. The district court referenced six of<br />
plaintiff's examples which, according to the<br />
court, if taken as true “may” have demonstrated<br />
probative similarity. However, the court then<br />
dismisses the similarities in two of those examples<br />
as springing from the underlying ideas<br />
themselves, and a third as falling within the<br />
doctrine of scenes-a-faire, and therefore, not<br />
protectible. AOB Add. 1 at 20, 22. The court,<br />
then, had no need to consider them at all either<br />
when determining whether to proceed to the<br />
next step in the analysis or when applying the<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.<br />
substantial similarity test. That the district<br />
court chose to do so evidences a particularly<br />
liberal interpretation of the Complaint.<br />
3. There Is No Substantial Similarity Between Authoritas<br />
And The Accidental Billionaires<br />
No reasonable reader viewing the works as a whole, or<br />
even focusing on the descriptions of the Summers meetings<br />
alone, “would conclude that the defendant unlawfully<br />
appropriated the plaintiff's protected expression by<br />
taking material of substance and value.” Yankee Candle,<br />
259 F.3d at 33.<br />
The books are not remotely similar, let alone substantially<br />
similar. The Accidental Billionaires is about the<br />
origins of Facebook, focusing on the *21 relationship<br />
between Zuckerberg and Saverin, and how that relationship<br />
deteriorated into open conflict. Important secondary<br />
characters include the Winklevosses and Sean Parker,<br />
Facebook's first president. The book is written in the<br />
third-person, and tells the story, at various times, from<br />
the perspectives of Saverin, Parker, and Tyler Winklevoss.<br />
In contrast, Authoritas is about plaintiff's life story,<br />
starting with his childhood. As plaintiff tells his readers,<br />
“[t]his book is about the strange events that have unfolded<br />
in my life, limited as it has been, and specifically, it<br />
is an attempt to answer a question that troubled me for<br />
some time after I completed my education. . . . My<br />
question is, how was it possible for such a wonderful<br />
education to be so horrible?” Authoritas at xii.<br />
Plaintiff's search for the answer to his question is expressed<br />
solely from his perspective and is written in the<br />
first-person. The book does not address the origins of<br />
Facebook until page 286 and then it focuses on<br />
plaintiff's belief that Zuckerberg copied the idea for<br />
Facebook from houseSYSTEM. It does not describe<br />
Zuckerberg's relationship with Saverin and only briefly<br />
addresses Zuckerberg's dispute with the Winklevosses.<br />
Neither are the descriptions of the two meetings that are<br />
the focus of the Complaint similar. First of all, they are<br />
different meetings, occurring months apart, concerning<br />
different participants -- other than Summers --, and dif-
2012 WL 2989930 (C.A.1) Page 13<br />
ferent *22 topics. To the extent there are any commonalities,<br />
they are unprotectible elements common to any<br />
meeting and are not expressed in similar fashion.<br />
Not surprisingly, then, plaintiff looks to random bits<br />
and pieces of the meetings in his failed attempt to show<br />
any similarity at all. However, plaintiff cannot allege<br />
substantial similarity by pointing to random similarities<br />
scattered throughout the works. See Cavalier, 297 F.3d<br />
at 825 (“random similarities scattered throughout the<br />
works” are “inherently subjective and unreliable”);<br />
Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9th Cir.<br />
1984) (same).<br />
On appeal, plaintiff shifts his focus and heavily relies<br />
on his selection and arrangement of facts, arguing that it<br />
is those elements that are appropriated in The Accidental<br />
Billionaires. The randomness in plaintiff's selection<br />
of alleged instances of copying, the fact he has found it<br />
necessary to compare the expression of different ideas,<br />
to pull sentences from different parts of the works and<br />
put them together before making his comparison, to reorder<br />
the facts, and, in some instances, to flat out misrepresent<br />
the import of the passages defeat the notion<br />
that this case implicates any protectible selection or arrangement<br />
of facts from Authoritas. But even if plaintiff<br />
could demonstrate some protectible -- that is original -selection<br />
and arrangement of facts, he could not, and<br />
has not demonstrated that those elements were copied in<br />
The Accidental Billionaires. Only a few examples make<br />
the point.<br />
*23 Plaintiff notes that “[b]oth meetings begin after a<br />
waiting period with a smiling receptionist.” AOB 17.<br />
[FN12] But the authors describe the meetings in entirely<br />
different ways. Plaintiff begins at page 1 as his meeting<br />
has already started and proceeds chronologically to the<br />
end. Not until 285 pages later does he describe the period<br />
before the meeting starts when he meets the smiling<br />
“office worker.” In contrast, the depiction in the Book is<br />
all in one place and proceeds chronologically from the<br />
waiting period in the reception area to the end of the<br />
meeting.<br />
FN12. Plaintiff's descriptions of the content of<br />
the books is suspect. In Authoritas, there is no<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.<br />
“receptionist” who greets plaintiff, but rather a<br />
secretary. He does not describe her as<br />
“smiling.” After waiting nearly an hour, he is<br />
called into the president's office by an “office<br />
worker,” evidently someone other than the secretary.<br />
The office worker smiles as she shows<br />
plaintiff into the office and directs him to his<br />
seat on the sofa. All of this is described on<br />
page 285, whereas the meeting itself is described<br />
on pages 1 through 6. In contrast,<br />
Mezrich begins his depiction of the meeting<br />
with the waiting period, describing a receptionist<br />
who, when alerted that the president would<br />
see the Winklevosses, points them to a door.<br />
As they get up off of the couch, one of the<br />
twins smiles at her and she smiles back. Book<br />
at 124-25.<br />
Moving to the content of the meetings themselves,<br />
plaintiff points out that he and Mezrich both describe<br />
the location of the president's office, the sofas on which<br />
the students sat, and the fact that the office is the center<br />
of authority of the university. AOB 16-17. First, these<br />
are all natural things to describe that flow from the<br />
scene itself; that is, they do not evidence any original<br />
selection of facts. As to arrangement, plaintiff's problem<br />
is that his description of the sofa and the location of the<br />
office come after plaintiff is sitting in Summers' office<br />
and his *24 meeting has already started. Authoritas at 1.<br />
In The Accidental Billionaires, the Winklevoss twins<br />
are sitting on a sofa in a reception area before their<br />
meeting begins. Book at 123-124. Moreover, plaintiff's<br />
description of the sofa, and indirect mention of the<br />
power of the office by way of the red color of the walls<br />
are almost immediately adjacent to each other. Authoritas<br />
at 1. In contrast, Mezrich's direct statement that the<br />
twins were waiting in the reception area of “the ultimate<br />
power on campus” is separated from the opening scene<br />
where they are sitting on the couch by nearly a page of<br />
text. Book at 123-124.<br />
Next plaintiff compares his own apprehensiveness expressed<br />
in the thought that “our meeting would be nothing<br />
less than a verbal train wreck” with the Winklevosses'<br />
“looming sense of dread.” AOB 17. Once again,
2012 WL 2989930 (C.A.1) Page 14<br />
not only is the expression of the ideas entirely different,<br />
they come at entirely different points in the respective<br />
meetings. In plaintiff's depiction of his meeting, he expresses<br />
his apprehensiveness immediately after Summers<br />
first speaks to him. Authoritas at 1. Mezrich<br />
voices the Winklevoss's “looming sense of dread” while<br />
they are still in the waiting room before they have even<br />
met Summers. Book at 124.<br />
Plaintiff then compares a string of ordinary words,<br />
phrases and ideas such as “the woman smiled” to “[a]t<br />
least she smiled back,” “the president will see you now”<br />
to “the president will see you in a moment,” and<br />
“[w]hat can I do for you” to “[w]hy are you here,” the<br />
fact that both books mention a computer on a desk, that<br />
*25 Summers was accompanied by an African-American<br />
assistant who took notes at the meeting, and the use<br />
in both works of “palpable,” “the man,” and “the system.”<br />
AOB 17-18. First, plucking stray words and<br />
phrases from the texts and juxtaposing them cannot<br />
form the basis of a claim based on the selection and arrangement<br />
of facts. Cavalier, 297 F.3d at 825. Second,<br />
there is no originality in the selection or arrangement of<br />
the things plaintiff mentions. There is nothing original<br />
about a receptionist -- smiling or not -- greeting visitors<br />
to the president of Harvard, or the fact of a computer on<br />
a desk, or that the president was accompanied by an assistant<br />
who took notes. Even the fact that the assistant<br />
in both meetings is African-American does not show<br />
copying given that the meetings occurred within months<br />
of each other, so the assistant was likely the same person.<br />
There is also nothing original about a meeting that<br />
begins with the logical question, “how can I help you.”<br />
In short, no reasonable reader could conclude that Authoritas<br />
and The Accidental Billionaires are substantially<br />
similar in their selection and arrangement of facts.<br />
[FN13]<br />
FN13. Plaintiff makes two final meritless arguments.<br />
First, he takes issue with the district<br />
court's conclusion that even had Mezrich<br />
copied the respective accounts of Summers' reactions<br />
to the students and manner and the descriptions<br />
of the students' responses in the<br />
meeting with Summers, the five sentences that<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.<br />
comprise these elements “are quantitatively and<br />
qualitatively insubstantial in the context of Authoritas<br />
taken as a whole.” AOB Add. 1 at 23.<br />
Plaintiff's argument is of no moment, however,<br />
because his allegations show neither probative<br />
nor substantial similarity. Thus, there is nothing<br />
to measure for its quantitative or qualitative<br />
relevance to his book as a whole. Second,<br />
plaintiff argues that Mezrich authored a rival<br />
book to his and notes that through plaintiff's<br />
website Mezrich had access to plaintiff's research<br />
material. Plaintiff then cites Rosemont<br />
Enterprises, Inc. v. <strong>Random</strong> <strong>House</strong>, Inc., 366<br />
F.2d 303 (2d Cir. 1966) for the proposition that<br />
one cannot appropriate the work of another's<br />
labor to publish a rival work. Untethered as it<br />
is from any allegation in the Complaint, the argument<br />
adds nothing to save the copyright<br />
claims.<br />
*26 C. Plaintiff Fails To State A Claim For Copyright<br />
Infringement Arising Out Of The Social Network<br />
As The Complaint Fails To Allege Facts Showing<br />
Either Probative Similarity Or Substantial Similarity<br />
1. Plaintiff Advances No Argument That The Film<br />
Infringed His Work<br />
Plaintiff makes no argument that the Film infringed Authoritas<br />
and his Statement of Issues does not address the<br />
Film at all as it relates to his copyright claims. Therefore,<br />
his claim for copyright infringement based on the<br />
Film is waived. See Wytrwal v. Saco School Bd., 70<br />
F.3d 165, 168 n.1 (1st Cir. 1995) (“claims not included<br />
in statement of issues have, on appeal, been abandoned<br />
and are waived”); Ayala-Sepulveda v. Municipality of<br />
San German, 671 F.3d 24, 30 n.5 (1st Cir. 2012)<br />
(arguments not made in party's opening brief are<br />
waived).<br />
2. The Complaint Fails To State A Claim For Copyright<br />
Infringement Arising Out Of The Film<br />
To the extent plaintiff has properly appealed the dismissal<br />
of those claims, as with the Book, the Film has a
2012 WL 2989930 (C.A.1) Page 15<br />
different focus (the conflict between Zuckerberg and<br />
*27 Saverin) and follows different characters<br />
(Zuckerberg, Saverin, Parker, and the Winklevosses)<br />
than Authoritas, which focuses on plaintiff's personal<br />
story.<br />
Moreover, plaintiff's claim is based on just two scenes:<br />
the meeting between the Winklevosses and Summers,<br />
and a scene in which Zuckerberg, at his Harvard Administrative<br />
Board hearing, states that he deserves<br />
“recognition” from the Board. A27, ¶¶ 62-63. As to the<br />
first, the claim is entirely derivative of plaintiff's claim<br />
against the Book and fails for all of the same reasons.<br />
See A27, ¶ 62 (alleging that the scene is “based upon<br />
Defendant Mezrich's account”).<br />
As to the second, there is no parallel scene in Authoritas<br />
, and it never describes plaintiff making a similar statement<br />
to anyone. Rather, plaintiff writes about his<br />
“frustration about Harvard University's unacknowledged<br />
‘proof that [he] had voluntarily informed the Admissions<br />
Office of multiple vulnerabilities in their systems.’<br />
” Id., ¶ 63. However, plaintiff acknowledges that<br />
the similarity is not in the expression, but instead in the<br />
underlying “idea” or “plot element,” neither of which is<br />
protected by copyright. Id.; Johnson, 409 F.3d at 19<br />
(“copyright law . . . does not safeguard either the ideas<br />
themselves or banal expressions of them”); Franklin v.<br />
Ciroli, 865 F. Supp. 947, 950 (D. Mass. 1994) (“courts<br />
have recognized that a copyright will not protect plots,<br />
subplots or themes”).<br />
*28 Thus, plaintiff fails to allege sufficient facts showing<br />
either probative similarity or substantial similarity<br />
between The Social Network and his book. The district<br />
court properly dismissed his infringement claims arising<br />
out of the Film.<br />
D. The District Court Properly Dismissed The Defamation<br />
Claims<br />
1. The Statements in the Book About Which Plaintiff<br />
Complains Are, As A Matter Of Law, Not Capable<br />
Of Defamatory Meaning And/Or Are Protected<br />
Opinion<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.<br />
The elements of a defamation claim are (1) a false statement<br />
(2) of and concerning the plaintiff which is (3)<br />
capable of damaging plaintiff's reputation, and (4)<br />
which caused economic loss or is actionable without<br />
such loss. Damon v. Moore, 520 F.3d 98, 103 (1st Cir.<br />
2008). Words are defamatory if they “hold the plaintiff<br />
up to scorn, hatred, ridicule or contempt, in the minds of<br />
any considerable and respectable segment in the community.”<br />
Id. The court decides the “threshold question”<br />
of whether, as a matter of law, the “communication is<br />
reasonably susceptible of defamatory meaning.” Id. A<br />
communication “can only be ruled defamatory if it<br />
would lead ‘a reasonable reader’ to conclude that it conveyed<br />
a defamatory meaning.” Id. at 103-04.<br />
Plaintiff's defamation claims against the Book are of<br />
two types: that certain statements defamed him, and that<br />
the “selective omission of Aaron <strong>Greenspan</strong>'s role” in<br />
the founding of Facebook has defamed him. As to the<br />
former, although he largely fails to address them in his<br />
brief, in his Complaint plaintiff alleges that the *29<br />
Book refers to him using the wrong name, calls him a<br />
“kid,” and observes that “hardly any one paid attention”<br />
to his website, which was not “particularly slick.”<br />
[FN14]<br />
FN14. The references to plaintiff are found at<br />
pages 80, 84, 96 and 115 of the Book.<br />
a. References To Plaintiff By The Wrong Last Name<br />
Are Not Capable of Defamatory Meaning<br />
Plaintiff cannot base a defamation claim on the inadvertent<br />
reference to him in the hardcover edition of The<br />
Accidental Billionaires as “Grossman.” [FN15] Grossman<br />
is simply a different, albeit inaccurate, surname,<br />
and plaintiff offers no cogent explanation why mistakenly<br />
referring to him with this particular name holds<br />
him up “to scorn, hatred, ridicule or contempt.”<br />
FN15. These typos were corrected in the paperback<br />
edition of the Book.<br />
b. Referring To Plaintiff As “Kid” Is Not Defamatory<br />
Plaintiff alleges that referring to him as “that Aaron
2012 WL 2989930 (C.A.1) Page 16<br />
<strong>Greenspan</strong> kid” and “some kid named Aaron <strong>Greenspan</strong>”<br />
defames him. See A24, ¶ 47. However, as the district<br />
court correctly found, the term “kid” refers to a<br />
“young person” and is not disparaging. AOB Add. 1 at<br />
33; Damon, 520 F.3d at 105 (“words are to be read in<br />
their natural sense”). This is particularly true in the context<br />
of a book that uses the term to describe all of the<br />
main characters, as well as the entire student bodies of<br />
both Harvard and Stanford, and colleges in general.<br />
[FN16]<br />
FN16. See, e.g., Book at 4 (referring to Saverin<br />
as “kid”); at 137 (Parker as “skinny kid”); at 68<br />
(Winklevosses as “kids like that”); at 31<br />
(“Harvard kids”); at 79 (“kids at Harvard”); at<br />
84 (referring to “kids all over campus” in the<br />
same paragraph as reference to Plaintiff); at<br />
133 (“Stanford kids”); at 140 (“college kids”).<br />
*30 c. The Statements That “Hardly Anyone Paid<br />
Attention” To Plaintiff's Web Site And That His<br />
Website “Wasn't Particularly Slick” Are Not Capable<br />
Of Defamatory Meaning, And Are Protected<br />
Expressions Of Opinion In Any Case<br />
Plaintiff alleges that the statements “hardly anyone paid<br />
attention to” plaintiff's Universal <strong>House</strong> Facebook website<br />
“as far as Eduardo knew” and the website “wasn't<br />
particularly slick” mean that his work was “irrelevant<br />
and of poor quality.” See A36, ¶ 107. However, whether<br />
any one paid attention to his website -- whatever that<br />
may mean -- is not capable of defamatory meaning, as it<br />
does not tend to hold plaintiff up to “scorn, hatred, ridicule<br />
or contempt.” Likewise, remarking that the website<br />
is not “particularly slick” could not subject plaintiff<br />
to hatred, scorn, or ridicule.<br />
Moreover, the statements are clearly expressions of<br />
opinion and cannot support a defamation claim for that<br />
independent reason. See Cole v. Westinghouse Broadcasting<br />
Co., 386 Mass. 303, 312, 435 N.E.2d 1021<br />
(1982) (“[a]n assertion that cannot be proved false cannot<br />
be held libelous”). The statement that “hardly anyone”<br />
is “paying attention” to plaintiff's website is too<br />
amorphous and imprecise to be defamatory. Whether<br />
people are “paying attention” to a particular website and<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.<br />
what constitutes “hardly anyone” are subjective, and<br />
cannot be proved true or *31 false. In addition, the<br />
statement concludes with the qualifier, “as far as<br />
Eduardo knew,” further demonstrating that it is an expression<br />
of opinion. See Lyons v. Globe <strong>News</strong>paper Co.,<br />
415 Mass. 258, 263, 612 N.E.2d 1158 (1993) (use of<br />
qualifier “suspicion” in newspaper article “plainly cautioned<br />
the reader that the article referred to a theory<br />
rather than to facts”); Yohe v. Nugent, 321 F.3d 35, 41<br />
(1st Cir. 2003) (qualified language demonstrated statement<br />
at issue was opinion). Similarly, the adjective<br />
“slick” means different things to different people, and<br />
even if it had a uniform meaning, the question of whether<br />
a particular website was “slick” is necessarily a subjective<br />
one. See McCabe v. Rattiner, 814 F.2d 839, 842<br />
(1st Cir. 1987) (holding that description of condominium<br />
sales business as a “scam” was non-actionable opinion<br />
because the word “scam,” “means different things to<br />
different people”). Its meaning is “imprecise and open<br />
to speculation [and it] cannot be proved false.” Cole,<br />
386 Mass. at 312. Thus, plaintiff cannot state a claim<br />
for defamation as to either of these statements.<br />
2. The Purported “Omission” Of Plaintiff From The<br />
Book And The Film Is Not Capable of Defamatory<br />
Meaning, And Cannot Be “Of And Concerning”<br />
Plaintiff In Any Event<br />
Plaintiff argues that he should be allowed to pursue this<br />
action because, by their omission of his perceived role<br />
in creating Facebook, the Book and the Film “paint a<br />
wholly inaccurate and rather unimpressive picture of<br />
<strong>Greenspan</strong>.” AOB 44. Initially, plaintiff's theory of liability<br />
is antithetical to the First Amendment, *32 which<br />
does not permit the judicially compelled telling of<br />
plaintiff's story. See e.g. Miami Herald Publishing Co.<br />
v. Tornillo, 418 U.S. 241, 255-58, 261 94 S.Ct. 2831, 41<br />
L.Ed.2d 730 (1974) (the government may not invade<br />
editorial discretion and coerce a newspaper to publish<br />
that which “it chooses to leave on the newsroom floor”).<br />
If allowed to proceed, the chilling effect on free speech<br />
posed by such claims is clear and unacceptable. The<br />
First Amendment simply cannot tolerate a world in<br />
which authors of nonfiction books on the same subject<br />
could take disagreements from the marketplace to the
2012 WL 2989930 (C.A.1) Page 17<br />
courtroom simply by alleging that their competitors'<br />
books are “not true.” Plaintiff's remedy, if he does not<br />
believe he has been painted in a sufficiently impressive<br />
light, is to do exactly what he did when he published<br />
Authoritas -- place his own version of history into the<br />
marketplace of ideas. See generally, Brown v. Hartlage,<br />
456 U.S. 45, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982)<br />
(the “preferred First Amendment remedy” is “more<br />
speech, not enforced silence”). That he has had difficulty<br />
getting others to accept his version of these events<br />
is no excuse for seeking the aid of the courts to help<br />
him to do so.<br />
In any event, as the district court found, the omission of<br />
plaintiff's purported role in Facebook's creation could<br />
not hold plaintiff up to scorn, hatred, ridicule, or contempt,<br />
even if that omission could reasonably be inferred<br />
to suggest plaintiff's irrelevancy to Facebook<br />
(which it cannot). See AOB Add. 1 at 33-34. Thus, the<br />
alleged omissions are not susceptible to defamatory<br />
meaning.<br />
*33 Moreover, the omission claim fails to satisfy the<br />
“of and concerning” element of defamation. For this<br />
reason, plaintiff complains that Massachusett's law is<br />
lacking “in that it does not directly address situations<br />
involving material omissions of fact that can have realworld<br />
impact.” AOB 38. But by definition, if a statement<br />
is not “of and concerning” plaintiff, it can have no<br />
impact on him.<br />
To satisfy the “of and concerning” requirement:<br />
[T]he plaintiff must prove either that the defendant intended<br />
its words to refer to the plaintiff and that they<br />
were so understood, or that the defendant's words reasonably<br />
could be interpreted to refer to the plaintiff and<br />
that the defendant was negligent in publishing them in<br />
such a way that they could be so understood. New England<br />
Tractor-Trailer Training of Conn., Inc. v. Globe<br />
<strong>News</strong>paper Co., 395 Mass. 471, 483, 380 N.E.2d 1005<br />
(1985) (emphasis added). [FN17]<br />
FN17. Neither New England Tractor Trailer,<br />
395 Mass. 471, nor Sharratt v. Housing Innovations,<br />
Inc., 310 N.E.2d 343 (1974) assist<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.<br />
plaintiff as he asserts. AOB 39-40. The court in<br />
New England observed “[i]t is a fundamental<br />
principle of the law of defamation that a<br />
plaintiff must show, inter alia, that the allegedly<br />
defamatory words published by a defendant<br />
were of and concerning the plaintiff.”<br />
Id. at 474 (emphasis added). In Sharratt, the<br />
court held that attendant circumstances may be<br />
used to demonstrate that facially-innocent<br />
words are capable of defamatory meaning,<br />
finding that “[t]he facts pleaded tended to<br />
show” that the statements at issue could “be<br />
understood as referring to the plaintiff.” Id. at<br />
145-46 (emphasis added) (internal quotation<br />
marks omitted). Sharratt did not address the<br />
“of and concerning” element of a defamation<br />
claim.<br />
Here, plaintiff alleges neither. Indeed, the gravamen of<br />
the claim is that plaintiff was defamed because the<br />
Book fails to refer to him in the manner hedesired. See<br />
A25, ¶ 50. Such a claim turns on its head the requirement<br />
that a defamatory statement be “of and concerning”<br />
the plaintiff.<br />
*34 In other cases concerning statements that do not<br />
refer to the plaintiff, either explicitly or implicitly,<br />
courts have found that the “of and concerning” requirement<br />
cannot be satisfied as a matter of law. In Mc-<br />
Namee v. Jenkins, the plaintiff police officer sued a fellow<br />
officer for defamation, arguing that a police report<br />
she filed that contradicted his own report regarding the<br />
same incident implicitly accused him of filing a false report.<br />
52 Mass. App. Ct. 503, 507, 754 N.E.2d 740<br />
(2001). The court rejected this argument, noting that the<br />
defendant's report did not assert that the plaintiff's report<br />
was false, or refer to it in any way. The court held<br />
that, as a result, “the statements made by [the defendant]<br />
that conflict with the plaintiff's statements are not<br />
of and concerning the plaintiff, but are about her observations<br />
of” the incident described in the report. Id. The<br />
statements did not “tend to injure the plaintiff's reputation<br />
or discredit him.” Id. at 508. Similarly, in Driscoll<br />
v. Bd. of Trustees of Milton Academy, the court held that<br />
a letter sent by a school principal to parents regarding a
2012 WL 2989930 (C.A.1) Page 18<br />
series of disciplinary incidents was not “of and concerning”<br />
a student involved in only one of the incidents. 70<br />
Mass. App. Ct. 285, 298-99, 873 N.E.2d 1177 (2007).<br />
Because the letter neither mentioned the student by<br />
name nor implied his involvement, none of its statements<br />
were actionable. Id.; see also Blatty v. New York<br />
Times, 42 Cal.3d 1033, 1046, 728 P.2d 1177 (1986)<br />
(sustaining demurrer to plaintiff's cause of action based<br />
on the *35 defendant's omission of his novel from its<br />
best seller list because plaintiff could not satisfy the “of<br />
and concerning” requirement).<br />
As in those cases, omission cannot give rise to defamation<br />
here because there is nothing implicitly said “of<br />
and concerning” plaintiff. In fact, this case presents an<br />
even more extreme example than McNamee, as plaintiff<br />
does not even contend that The Accidental Billionaires<br />
or the Film refer to him by implication. He expressly<br />
concedes that the Film makes no reference to him, express<br />
or implicit. A11, ¶ 9; A28, ¶ 66. As to the Book,<br />
he suggests that the omissions themselves defamed him,<br />
by “completely withholding proper recognition that was<br />
instead attributed to other characters, and in particular,<br />
Mr. Zuckerberg.” A25, ¶ 50. However, the omission is<br />
not “of and concerning” plaintiff. See New England<br />
Tractor Trailer, 395 Mass. at 483; McNamee, 52 Mass.<br />
App. Ct. at 507-08. Accordingly, the district court properly<br />
dismissed plaintiff's claims.<br />
E. Plaintiff's Defamation Claim Based On The<br />
November 6, 2011 C-Span Interview Fails<br />
The Complaint does not identify a single specific defamatory<br />
statement made by Mezrich during the C-Span<br />
interview, and instead generally avers that Mezrich defamed<br />
him by continuing to defend his book as “true,”<br />
“accurate,” and “nonfiction” and by allegedly attributing<br />
to plaintiff “false motives” for criticizing Mezrich's<br />
book. A29, ¶ 74; A36, ¶ 111. However, Mezrich made<br />
no statements in the interview “of and concerning”<br />
plaintiff that are capable of defamatory *36 meaning.<br />
As to Mezrich's defense of the Book, nothing about his<br />
defense is either explicitly or implicitly about plaintiff<br />
and cannot support a defamation claim.<br />
Given plaintiff's allegation that Mezrich attributed<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.<br />
“false motives” to plaintiff, plaintiff appears to suggest<br />
that the following statement is defamatory: “It's a person<br />
who has a personal beef--with Zuckerberg or with<br />
Facebook, and they're bringing it out in the way they<br />
can in this conversation. It really has very little to do<br />
with my book.” To the extent the statement could be<br />
construed as referring to plaintiff, there is nothing defamatory<br />
about the suggestion that he has a conflict<br />
with Zuckerberg and Facebook, Inc. regarding the origins<br />
of the website (which is demonstrably true as evidenced<br />
by his own book, Authoritas), and on that basis<br />
objects to The Accidental Billionaires and the Film.<br />
Plaintiff takes the district court to task for not addressing<br />
any other statements in the interview. AOB 43-44.<br />
But no other statement regarding the “false motives” of<br />
Mezrich's critics is even arguably “of and concerning”<br />
plaintiff. In his brief, plaintiff singles out Mezrich's<br />
musings about the meaning of nonfiction and fiction,<br />
and that characters who do not want their stories told<br />
would benefit from the label “fiction.” AOB 44.<br />
Plaintiff twists this into a statement that he has<br />
something to hide. This is nonsense. The statement is<br />
not “of and concerning” plaintiff and in no way implies<br />
that anyone has something to hide.<br />
*37 Moreover, the statement is an expression of<br />
Mezrich's opinion and is therefore not actionable. See<br />
Yohe, 321 F.3d at 41; Cole, 386 Mass. at 312 (“An assertion<br />
that cannot be proved false cannot be held libelous”).<br />
Thus, plaintiff does not state a claim for defamation<br />
arising out of the C-Span interview.<br />
F. The District Court Properly Dismissed Plaintiff's<br />
Unfair Competition And False Advertising Claims<br />
In his fourth claim, plaintiff alleges that defendants<br />
falsely advertised and engaged in unfair competition in<br />
the marketing of The Accidental Billionaires. They allegedly<br />
did so by labeling the Book “nonfiction,” by<br />
buying favorable on-line reviews and by bulk sales of<br />
the Book intended to boost the Book on to the bestsellers<br />
list. A34, ¶ 96 With respect to the “nonfiction”<br />
label, plaintiff argues that The Accidental Billionaires<br />
contains numerous errors, most notably a failure to accurately<br />
describe plaintiff's “work on designing and pro-
2012 WL 2989930 (C.A.1) Page 19<br />
gramming the original version of The Facebook.”<br />
Therefore, plaintiff sold “significantly” fewer copies of<br />
Authoritas than he otherwise would have. AOB 34. As<br />
to the allegedly paid reviews (he does not mention bulk<br />
sales), plaintiff argues that “[b]asic phenomena such as<br />
word-of-mouth referrals are implicitly understood by<br />
the vast majority of individuals to guide purchasing<br />
habits” and that the district court erred by “disregarding<br />
the relevant portions of [plaintiff's] pleading.” AOB<br />
36-37.<br />
As the district court correctly set forth, the elements of<br />
a Lanham Act false advertising claims are as follows:<br />
*38 To prove a false advertising claim under the Lanham<br />
Act, a plaintiff must demonstrate that (1) the defendant<br />
made a false or misleading description of fact or<br />
representation of fact in a commercial advertisement<br />
about his own or another's product; (2) the misrepresentation<br />
is material, in that it is likely to influence the<br />
purchasing decision; (3) the misrepresentation actually<br />
deceives or has the tendency to deceive a substantial<br />
segment of its audience; (4) the defendant placed the<br />
false or misleading statement in interstate commerce;<br />
and (5) the plaintiff has been or is likely to be injured as<br />
a result of the misrepresentation, either by direct diversion<br />
of sales or by a lessoning of goodwill associated<br />
with its products.<br />
Cashmere & Camel Hair Mfrs. Institute v. Saks Fifth<br />
Ave., 284 F.3d 302, 310-11 (1st Cir.), cert. denied, 537<br />
U.S. 1001 (2002).<br />
To state an unfair competition claim under the Lanham<br />
Act, a plaintiff must allege “a false or misleading statement<br />
of fact in commercial advertising or promotion<br />
about the Plaintiff's goods or services” and “facts supporting<br />
bad faith.” Applera Corp. v. Michigan Diagnostics,<br />
LLC, 594 F.Supp.2d 150, 163 (D. Mass.<br />
2009), citing Zenith Elecs. Corp. v. Exzec, Inc., 182<br />
F.3d 1340, 1353 (Fed. Cir. 1999). The district court correctly<br />
concluded that the Complaint did not plead facts<br />
sufficient to support a plausible claim of either false advertising<br />
or unfair competition under the Lanham Act.<br />
Plaintiff's argument over the source of the district<br />
court's definition of “nonfiction” is besides the point.<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.<br />
The court's definition, “that the literature is based on<br />
true stories and events” fits comfortably within<br />
plaintiff's alternative definitions: “the branch of literature<br />
comprising works of narrative prose dealing with or<br />
offering opinions or conjectures upon facts and reality”<br />
and “writing *39 dealing with facts and events rather<br />
than imaginative narration.” There is no meaningful distinction<br />
between literature based on true stories and<br />
events and literature dealing with true stories and<br />
events. Moreover, as one of plaintiff's preferred definitions<br />
confirms, nonfiction is the broadest category of<br />
literature, literally including anything that is not fiction.<br />
Mezrich's own description of his book in his “Author's<br />
Note” also fits comfortably within any of these definitions:<br />
The Accidental Billionaires is a dramatic, narrative account<br />
based on dozens of interviews, hundreds of<br />
sources, and thousands of pages of documents, including<br />
records from several court proceedings.<br />
There are a number of different -- and often contentious<br />
-- opinions about some of the events that took place.<br />
Trying to paint a scene from the memories of dozens of<br />
sources -- some direct witnesses, some indirect--can often<br />
lead to discrepancies. I recreated the scenes in the<br />
book based on the information I uncovered from the<br />
documents and interviews, and my best judgment as to<br />
what version most closely fits the documentary record.<br />
Other scenes are written in a way that describes individual<br />
perceptions without endorsing them.<br />
I have tried to keep the chronology as close to exact as<br />
possible. In some instances, details of settings and descriptions<br />
have been changed or imagined, and identifying<br />
details of certain people altered to protect their privacy.<br />
Other than the handful of public figures who populate<br />
this story, names and personal descriptions have<br />
been altered.<br />
I do employ the technique of re-created dialogue. I have<br />
based this dialogue on the recollection of participants of<br />
the substance of conversations. Some of the conversations<br />
recounted in this book took place over long periods<br />
of time, in multiple locations, and thus some conversations<br />
and scenes were re-created and compressed.<br />
Rather *40 than spread these conversations out, I sometimes<br />
set these scenes in likely settings.
2012 WL 2989930 (C.A.1) Page 20<br />
In any event, the district court was absolutely correct<br />
when it observed that plaintiff “essentially only alleges<br />
that [the Book] is not based on the plaintiff's version of<br />
the facts. Two books may both be designated as nonfiction<br />
even though they have contrasting accounts of the<br />
same events.” AOB Add. 1 at 28 n.9. Plaintiff's lament<br />
that his role in the story has not been properly told, even<br />
when combined with his list of discrete errors, does not<br />
serve to turn The Accidental Billionaires into fiction.<br />
Regardless of the source of the district court's definition<br />
of “nonfiction,” then, its holding on this point is sensible<br />
and correct. Plaintiff has not alleged facts to support<br />
a plausible Lanham Act false advertising claim.<br />
Moreover, inasmuch as the claimed “misleading statements”<br />
and “misrepresentations” in labeling the Book<br />
nonfiction concern “[d]efendants' representations of<br />
plaintiff, and/or the lack thereof” they simply rehash his<br />
defamation by omission claim and are deficient for the<br />
same reasons. A34, ¶ 98; McNamee, 52 Mass. App. Ct.<br />
at 507. Plaintiff cannot circumvent the “of and concerning”<br />
requirement by slapping a “Lanham Act” label on<br />
the claim.<br />
Turning to the consumer reviews and bulk sales, the district<br />
court correctly concluded “there is no assertion that<br />
the purported misrepresentations made by defendants,<br />
i.e. buying ‘five-star’ reviews and boosting sales numbers,<br />
influenced, or would likely influence, consumer<br />
purchasing decisions,” and that “there are no *41 facts<br />
alleged that the defendants' misrepresentations harmed<br />
the plaintiff's business by causing the loss of sales or<br />
goodwill associated with its products.” AOB Add. 1 at<br />
28-29. Plaintiff's naked allegations do not pass muster.<br />
Iqbal, 129 S.Ct. at 1949 (naked allegations without further<br />
factual enhancement do not state a claim). In any<br />
event, the consumer reviews are not “commercial advertisements,”<br />
an essential element of a Lanham Act<br />
claim. Cashmere, 284 F.3d at 310.<br />
As to damages, plaintiff concedes that it is “impossible<br />
to know how many more books [he] would have sold, or<br />
how many more business opportunities might have been<br />
presented (or not rejected), had he been represented appropriately<br />
and accurately in The Accidental Billionaires.”<br />
AOB 33. Plaintiff then cites another out of cir-<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.<br />
cuit case, Johnson & Johnson v. Carter-Wallace, Inc.,<br />
631 F.2d 186, 191 (2d Cir. 1980), to support his claim<br />
that it was “reasonable and incumbent upon the lower<br />
court to infer that <strong>Greenspan</strong>'s book would have sold<br />
(significantly) more copies had his work on designing<br />
and programming the original version of The Facebook<br />
been described accurately.” AOB 34. Johnson & Johnson<br />
does not support plaintiff's argument, and, in fact,<br />
demonstrates that his Lanham Act claim is deficient.<br />
Johnson & Johnson specifically held that “injury and<br />
causation will not be presumed, but must be demonstrated.”<br />
631 F.2d at 190. To do so requires facts showing<br />
that the plaintiff and the defendant “are competitors<br />
in a relevant market.” The Complaint included no such<br />
facts. Moreover, plaintiff was also *42 required to<br />
“show a logical causal connection between the alleged<br />
false advertising and its own sales position.” Id. No<br />
facts alleging such a “logical causal connection” appear<br />
in the Complaint, which states only that “[p]laintiff has<br />
suffered damages” as a result of defendants' conduct.<br />
[FN18] See A34-35, ¶¶ 96-103.<br />
FN18. Indeed, plaintiff even fails to show such<br />
a logical connection in his opening brief, which<br />
connects his purported (but impossible to calculate)<br />
damages not to any false advertising,<br />
but instead to the Book's alleged misrepresentation<br />
of plaintiff and his work. See AOB 33-34<br />
(impossible to know how many more books<br />
plaintiff would have sold “had he been represented<br />
appropriately and accurately” in the<br />
Book; the District Court should have inferred<br />
that Authoritas would have sold more copies<br />
“had [plaintiff's] work on designing and programming<br />
the original version of The Facebook<br />
been described accurately”). Plaintiff's argument<br />
demonstrates that his disagreement is not<br />
with any purported unfair competition by <strong>Random</strong><br />
<strong>House</strong> or Mezrich, but instead with their<br />
failure to portray plaintiff in the way he would<br />
prefer.<br />
G. The District Court Correctly Concluded It Would<br />
Be Futile To Allow Plaintiff To Amend His Complaint
2012 WL 2989930 (C.A.1) Page 21<br />
While the motions to dismiss were under advisement,<br />
plaintiff sought leave to file the FAC. The proposed<br />
amendments consist largely of argument and a few new<br />
“fact” allegations, none of which adds anything to<br />
plaintiff's old claims or adequately supports his new<br />
ones. To the contrary, with his FAC plaintiff moves<br />
well outside the boundaries of plausibility, alleging<br />
among other things that:<br />
• Mezrich's request that plaintiff act as a source for The<br />
Accidental Billionaires amounted to an implicit, extortionate<br />
threat (A143, ¶ 42);<br />
• Defendants' marketing, distribution, and sales of the<br />
Book and the Film constituted mail and wire fraud<br />
(A176, ¶ 153);<br />
*43 • Collectively, defendants constitute a criminal enterprise<br />
under the Racketeer Influenced and Corrupt Organizations<br />
Act (“RICO”) (A174; ¶ 148);<br />
• Simon & Schuster, Inc., which has absolutely no connection<br />
to the events at issue in this matter, is a coconspirator<br />
in the criminal enterprise by virtue of having<br />
published an earlier book by Mezrich (A136; ¶ 23);<br />
• A <strong>Random</strong> <strong>House</strong> lawyer participated in a scheme to<br />
defraud plaintiff by allowing <strong>Random</strong> <strong>House</strong> to market<br />
The Accidental Billionaires as non-fiction (id.); and<br />
• Tonya Mezrich, defendant Mezrich's wife, committed<br />
copyright infringement, defamation, fraud, violated the<br />
Lanham Act, was unjustly enriched, and is a member of<br />
a criminal enterprise engaged in a pattern of racketeering<br />
activity, all because she posted a consumer review<br />
on Amazon.com praising her husband's book (A174; ¶<br />
148).<br />
These frivolous contentions cannot be allowed to prolong<br />
this case, and the Court should affirm the district<br />
court's order denying leave to amend.<br />
1. Leave To Amend A Pleading Need Not Be Granted<br />
Where, As Here, The Amendment Would be Futile<br />
Leave to amend should be “freely given when justice so<br />
requires.” Fed. R. Civ. P. 15(a). However, when amendment<br />
would be futile, leave should not be granted. Ardorno<br />
v. Crowley Towing and Transportation Co., 443<br />
F.3d 122, 126 (1st Cir. 2006). “In assessing futility, the<br />
district court must apply the standard which applies to<br />
motions to dismiss under Fed. R. Civ. P. 12(b)(6).” Id.<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.<br />
Thus, *44 leave to amend should be denied where the<br />
plaintiff does not allege “enough facts to state a claim to<br />
relief that is plausible on its face.” Twombly, 550 U.S.<br />
at 570.<br />
2. Plaintiff Adds No Additional Facts To His Claims<br />
For Copyright Infringement<br />
Plaintiff alleges no additional facts in support of his<br />
copyright claims, and instead adds only the phrase<br />
“Total Feel and Experience” to his list of purported similarities.<br />
A145-149, ¶ 54. This does nothing to save<br />
these claims, and allowing the amendment would be futile.<br />
3. Plaintiff Fails To Allege Any Additional Facts<br />
That Rescue His Doomed Lanham Act Claim<br />
The only new allegations plaintiff adds to his flawed<br />
Lanham Act claim are: (1) additional instances of consumer<br />
reviews on Amazon.com purportedly written by<br />
“partners, employees, contractors, and/or affiliates” of<br />
the defendants, A164-167; and (2) a statement that he is<br />
a competitor of <strong>Random</strong> <strong>House</strong> and Mezrich because he<br />
wrote and self-published his life story. However, a<br />
claim for false advertising under 15 U.S.C. § 1125(a)<br />
requires allegations that “the defendant made a false or<br />
misleading description of fact or representation of fact<br />
in a commercial advertisement [and that] the misrepresentation<br />
is material, in that it is likely to influence the<br />
purchasing decision.” Cashmere, 284 F.3d at 310-311.<br />
First, nowhere does plaintiff allege that these consumer<br />
reviews contain false or misleading descriptions or representations<br />
of fact; he merely alleges that the *45 reviewers<br />
failed to disclose their purported connections to<br />
the defendants. Second, the reviews are not<br />
“commercial advertisement[s],” they are simply consumer<br />
reviews on Amazon.com. [FN19] And third,<br />
plaintiff does not (and cannot), allege that any purported<br />
misrepresentations are likely to make a difference to<br />
purchasers.<br />
FN19. The FAC improperly attempts to bootstrap<br />
a purported violation of FTC advertising<br />
guidelines into a Lanham Act claim. However,<br />
the penalty for such a violation is an action by
2012 WL 2989930 (C.A.1) Page 22<br />
the FTC under the FTC Act, which provides no<br />
private right of action. See Federal Trade Commission<br />
v. Klesner, 280 U.S. 19, 25, 50 S.Ct. 1,<br />
74 L.Ed. 138 (1929). Plaintiff cannot use the<br />
Lanham Act as a proxy in order to avoid this<br />
rule, nor can he avoid properly alleging the elements<br />
of a Lanham Act claim simply by invoking<br />
the FTC guidelines.<br />
Moreover, plaintiff still fails to allege the competitive<br />
injury required to state a false advertising claim. To do<br />
so, he would have to allege facts showing that he “has<br />
been or is likely to be injured as a result of the misrepresentation<br />
[in the advertisement], either by direct diversion<br />
of sales or by a lessening of goodwill associated<br />
with [his] products.” Cytologix Corp. v. Ventana Medical<br />
Systems, Inc., 2006 WL 2042331, at *5 (D. Mass.<br />
July 20, 2006) (unpublished), citing Cashmere, 284<br />
F.3d at 310-311 (emphasis added). Plaintiff alleges no<br />
such facts, and in his brief, concedes he is unable to do<br />
so, wrongly arguing that the Court must infer them.<br />
AOB 34.<br />
*46 Further, the fact plaintiff self-published his life<br />
story does not make him a competitor to any defendant.<br />
[FN20] Authoritas and The Accidental Billionaires<br />
simply do not compete. While the Book is all about the<br />
founding of Facebook, Authoritas is plaintiff's autobiography<br />
in which his “houseSYSTEM” and his contact<br />
with Zuckerberg are only discussed in the last 40 pages<br />
of the 333-page book. See Authoritas, Chs. 26-30, Epilogue.<br />
Accordingly, nothing in plaintiff's proposed FAC<br />
saves his fatally deficient Lanham Act claim.<br />
FN20. The proposed FAC includes only the unsupported<br />
and conclusory assertions that Think<br />
Press is “a competitor of Defendant <strong>Random</strong><br />
<strong>House</strong> in the same channels of trade involving<br />
book publishing,” and that “Plaintiff himself is<br />
. . . a competitor of Defendant Mezrich in that<br />
both attempted to secure publishing deals from<br />
the same publishers.” A173, ¶ 141. The District<br />
Court correctly rejected these conclusory assertions<br />
as insufficient to support plaintiff's claim.<br />
4. Plaintiff Cannot Allege Facts Supporting A RICO<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.<br />
Claim<br />
According to plaintiff, there is a vast criminal conspiracy<br />
arrayed against him made up of <strong>Random</strong> <strong>House</strong>,<br />
Inc., Simon & Schuster, Inc., Sony Pictures, Inc., Benjamin<br />
Mezrich, his wife, Tonya, and other coconspirators.<br />
He alleges that, in furtherance of this alleged<br />
conspiracy, Mezrich's email request that he act as<br />
a “knowledgeable source” for the Book amounted to<br />
criminal extortion -- a threat against “[p]laintiff's business,<br />
financial condition and reputation.” A176, ¶ 152.<br />
He further alleges that defendants committed mail and<br />
wire fraud by distributing their works, by posting consumer<br />
reviews on Amazon.com, by transferring the *47<br />
proceeds from the sale of their works, and by filing<br />
court papers in this case. Id., ¶ 153. None of the alleged<br />
conduct constitutes a criminal offense, as required by<br />
the RICO statute. See 18 U.S.C. § 1961(1). Moreover,<br />
each of these contentions is frivolous on its face, and<br />
plaintiff utterly fails to allege any cognizable claim, let<br />
alone facts that meet the heightened pleading requirement<br />
for RICO claims. See Bessette v. Avco Financial<br />
Services, Inc., 230 F.3d 439, 449-450 (1st Cir. 2000).<br />
For example, plaintiff alleges the conspirators committed<br />
mail and wire fraud, evidently by shipping or mailing<br />
the Book and Film in interstate commerce and by<br />
writing reviews on-line. Those benign activities amount<br />
to racketeering activity, according to plaintiff, because<br />
the items transmitted, mailed, or posted on-line are not<br />
true. Thus, the FAC comes full circle to the gravamen<br />
of plaintiff's case -- alleged torts and now crimes committed<br />
against him because defendants have not properly<br />
acknowledged his contributions to the founding of<br />
Facebook. Never mind that plaintiff has failed to meet<br />
the technical requirements of pleading a RICO claim, he<br />
has not pled a single fact that could give rise to any<br />
claim whatsoever. [FN21] For these reasons, the district<br />
court appropriately concluded it *48 would be futile to<br />
allow plaintiff to bring his RICO claim. AOB Addendum<br />
2 (“Add. 2”) at 4-5.<br />
FN21. In particular, allegations of fraud as a<br />
RICO predicate offense must satisfy the<br />
heightened pleading standard for fraud. See<br />
Fed. R. Civ. P. 9(b). Plaintiff's FAC contains
2012 WL 2989930 (C.A.1) Page 23<br />
only general allegations, and fails to specifically<br />
allege even a single act of fraud. See A176,<br />
¶ 153. Moreover, plaintiff “fails utterly to<br />
identify any recipient” of any of the purported<br />
uses of the mail and/or wires. In re Compact<br />
Disc, 456 F.Supp.2d 131, 151 (D. Me. 2006).<br />
Plaintiff also fails to sufficiently allege injury,<br />
as he does not suggest that he was defrauded,<br />
and instead merely generally asserts that he has<br />
been injured. A178, ¶ 156. Finally, plaintiff<br />
does not allege facts making out either fraudulent<br />
intent or a “scheme or artifice to defraud” -<br />
- alleging neither who defendants sought to defraud,<br />
nor of what defendants sought to deprive<br />
them.<br />
5. Allowing Plaintiff To Amend His Defamation<br />
Claims Would Be Futile<br />
a. Plaintiff Alleges No New Facts That Save His Explicit<br />
Defamation Claim<br />
Plaintiff offers no new facts to salvage his defamation<br />
claims based on references to him by incorrect names,<br />
references to his website not being “particularly slick,”<br />
and the C-Span interview. Instead, plaintiff merely adds<br />
argument to his pleading. As to references to plaintiff as<br />
“kid,” plaintiff argues that Mezrich “uses [kid] in a general<br />
sense for those characters he favors, such as Mark<br />
Zuckerberg, and directly next to the names of those<br />
characters on whom he wishes to cast aspersions.”<br />
A150, ¶ 60. First, plaintiff's predicate is false -- the<br />
book refers to Zuckerberg in the exact same manner on<br />
multiple occasions, and in even less flattering terms<br />
elsewhere. See Book at 63, 71 (referring to “this Zuckerberg<br />
kid”); 10 (“awkward kid”); 21 (“geeky kid[]”);<br />
90 (“geeky kid”); 131 (“damn kid”). Second, plaintiff<br />
still fails to include facts showing that referring to *49 a<br />
college age student as a “kid” would cause others to<br />
view him with “scorn, hatred, ridicule or contempt.”<br />
Damon, 520 F.3d at 103.<br />
As for the statement that plaintiff “had gotten in<br />
trouble” for making a website that used students'<br />
“Harvard emails and IDs as passwords,” in Authoritas<br />
plaintiff describes at length how Harvard repeatedly<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.<br />
threatened him with disciplinary action over his website's<br />
use of students' university email passwords. See<br />
Authoritas at 2; 240; 247; 254-55. True statements cannot<br />
form the basis of a defamation claim. In any event,<br />
the statement, even if false, it is not capable of holding<br />
plaintiff up to “scorn, hatred, ridicule or contempt.”<br />
b. Plaintiff's Proposed Amended Claim For Defamation<br />
By Omission Does Not Satisfy The “Of And<br />
Concerning” Standard For Defamation<br />
The FAC does not include any new facts satisfying the<br />
“of and concerning” requirement. Despite his insistence<br />
that some individuals he knows expected him to have a<br />
larger role in the Book and the Film, A161, ¶ 97, he<br />
cannot satisfy the standard for “of and concerning” under<br />
Massachusetts law. Plaintiff cites to no words that<br />
refer to him in either the Book or the Film to support his<br />
purported “defamation by omission” claim. He relies<br />
solely on the fact that defendants marketed their works<br />
as true. However, this cannot be interpreted as an intended<br />
reference to plaintiff, and therefore, by definition,<br />
cannot satisfy the “of and concerning” requirement. It<br />
would be futile to allow plaintiff to amend this claim.<br />
*50 6. Plaintiff Cannot Make Out A Claim For Unjust<br />
Enrichment<br />
As the district court held, to the extent plaintiff's unjust<br />
enrichment claim is based on the same facts as<br />
plaintiff's copyright infringement claim, see A180, ¶¶<br />
169, 171, it is preempted by federal law and cannot survive.<br />
See Dunn v. Brown, 2011 WL 4499007 at *6 (D.<br />
Mass. Aug. 16, 2011) (unpublished); John G. Danielson,<br />
Inc. v. Winchester-Conant Properties, Inc., 322<br />
F.3d 26, 44 (1st Cir. 2003) (“Federal copyright law<br />
preempts rights under state law when they are equivalent<br />
to those granted under the Copyright Act”). Second,<br />
the allegations do not satisfy the elements of the claim:<br />
“(1) a benefit conferred upon the defendant by the<br />
plaintiff; (2) an appreciation or knowledge of the benefit<br />
by the defendant; and (3) an acceptance or retention<br />
of the benefit by the defendant under circumstances<br />
which make such acceptance or retention inequitable.”<br />
Mass. Eye & Ear Infirmary v. QLT Phototherapeutics,<br />
Inc., 552 F.3d 47, 57 (1st Cir. 2009). Plaintiff has pled
2012 WL 2989930 (C.A.1) Page 24<br />
no facts showing that he lost any book sales as a result<br />
of defendants' actions (indeed, he suggests the district<br />
court should have “infer[red]” such losses). What is<br />
more, none of the facts pled, nor plaintiff's arguments<br />
here, show that plaintiff conferred a benefit on defendants,<br />
as is required for an unjust enrichment claim to<br />
proceed. Frappier v. Countrywide Home Loans, Inc.,<br />
645 F.3d 51, 58 (1st Cir. 2011).<br />
*51 7. Plaintiff Cannot Allege Facts Stating A Claim<br />
For Fraud<br />
Plaintiff alleges that the following conduct constitutes<br />
fraud: classifying, referring to, and marketing The Accidental<br />
Billionaires as nonfiction and “true,” referring to<br />
the Film as “true,” and purportedly misrepresenting certain<br />
facts in “pleadings and representations before this<br />
Court.” A181, ¶ 173.<br />
However, to plead fraud plaintiff must allege that “[1]<br />
the defendant made a false representation of material<br />
fact [2] with knowledge of its falsity [3] for the purpose<br />
of inducing the plaintiff to act thereon, and [4] that the<br />
plaintiff reasonably relied upon the representation as<br />
true and [5] acted upon it to his damage.” Taylor v.<br />
American Chemistry Council, 576 F.3d 16, 31 (1st Cir.<br />
2009) (internal quotation marks omitted). Nowhere in<br />
his FAC does plaintiff allege that any of defendants'<br />
purported misrepresentations were made for the purpose<br />
of inducing him to act. Nor does plaintiff allege that he<br />
reasonably relied on defendants' statements as true and<br />
acted upon them to his damage. It would be fundamentally<br />
inconsistent for him to do so, of course, since he alleges<br />
that he supposedly knew from the outset that he<br />
could not expect to be fairly represented in The Accidental<br />
Billionaires. See A141-42, ¶¶ 36-38. Under<br />
plaintiff's own theory, he has been damaged not by his<br />
actions in reliance of defendants' statements, but rather<br />
by the *52 beliefs formed by third persons as a result of<br />
reading the Book or seeing the Film. See A163-64, ¶<br />
103. [FN22] This does not make out a claim for fraud.<br />
FN22. Plaintiff also fails to satisfy the technical<br />
and heightened pleading standards of Federal<br />
Rule of Civil Procedure 9(b), which requires<br />
“specification of the time, place and content of<br />
an alleged false representation.” Hayduk v.<br />
Lanna, 775 F.2d 441, 444 (1st Cir. 1985)<br />
(internal quotation marks omitted).<br />
V. CONCLUSION<br />
Especially in cases involving the exercise of First<br />
Amendment rights, and the attendant chilling effect litigation<br />
invariably has, swift termination of meritless<br />
claims is particularly important. See generally, Dombrowski<br />
v. Pfister, 380 U.S. 479, 487, 85 S.Ct. 1116, 14<br />
L.Ed.2d 22 (1965); Sipple v. Chronicle Publishing Co.,<br />
154 Cal.App.3d 1040, 1046, 201 Cal. Rptr. 665 (1984).<br />
There is no mystery as to what plaintiff would attempt<br />
to allege if given the opportunity, and those allegations<br />
as set forth in the FAC only serve to prove that he has<br />
no claim against any of the defendants. To allow<br />
plaintiff to amend would be a futile act, because<br />
plaintiff does not and cannot allege “enough facts to<br />
state a claim to relief that is plausible on its face.”<br />
Twombly, 550 U.S. 544. The district court properly<br />
granted the motion to dismiss and properly exercised its<br />
discretion to deny leave to amend. This Court should affirm.<br />
Aaron GREENSPAN, Plaintiff-Appellant, v. RANDOM<br />
HOUSE, INC., Mezco, Inc., Benjamin Mezrich, a/k/a<br />
Benjamin Mezrick, Columbia Pictures Industries, Inc.,<br />
a/k/a Sony Pictures, a/k/a Columbia Tristar Motion Picture<br />
Group, Defendants-Appellees.<br />
2012 WL 2989930 (C.A.1 ) (Appellate Brief )<br />
END OF DOCUMENT<br />
© 2012 <strong>Thomson</strong> <strong>Reuters</strong>. No Claim to Orig. US Gov. Works.