Greenspan v. Random House - Thomson Reuters News & Insight

2012 WL 2989930 (C.A.1) Page 1
For Dockets See 12-1594
United States Court of Appeals, First Circuit.
Aaron GREENSPAN, Plaintiff-Appellant,
v.
RANDOM HOUSE, INC., Mezco, Inc., Benjamin
Mezrich, a/k/a Benjamin Mezrick, Columbia Pictures
Industries, Inc., a/k/a Sony Pictures, a/k/a Columbia
Tristar Motion Picture Group, Defendants-Appellees.
No. 12-1594.
July 13, 2012.
Appeal from the United States District Court for the
District of Massachusetts in Case No. 11-CV-12000,
Magistrate Judge Robert B. Collings
Brief of Defendants-Appellees Random House, Inc.,
Mezco, Inc., and Benjamin Mezrich
Gordon P. Katz, Benjamin M. McGovern, Holland &
Knight LLP, 10 St. James Avenue, Boston, MA 02166,
(617) 523-2700, Stephen G. Contopulos, Bradley H. Ellis,
Sidley Austin LLP, 555 West Fifth Street, Suite
4000, Los Angeles, CA 90013, (213) 896-6000, Attorneys
for Defendants-Appellees, Random House, Inc.,
Mezco, Inc., and Benjamin Mezrich.
*I RULE 26.1 CORPORATE DISCLOSURE STATE-
MENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate
Procedure, Defendants-Appellees Benjamin Mezrich,
Mezco, Inc., and Random House, Inc., by and through
its undersigned counsel, submits the following corporate
disclosure statement.
I. Corporate Disclosure Statement of Random House,
Inc.
Random House, Inc. states that it is wholly owned by
Bertlesmann Publishing Group, Inc., which is in turn
owned by Bertlesmann, Inc., which is in turn owned by
Bertlesmann A.G. Each of these companies is privately
held. However, Group Bruxelles Lambert S.A., a com-
pany traded on the Brussels Stock Exchange, owns in
excess of ten percent (10%) of Bertlesmann A.G.
II. Corporate Disclosure Statement of Mezco, Inc.
Mezco, Inc. states that it has no parent company and no
publicly-held corporation owns more than ten percent
(10%) of its stock.
*ii TABLE OF CONTENTS
I. STATEMENT OF THE CASE ... 1
A. Proceedings ... 2
II. STATEMENT OF THE FACTS ... 3
III. SUMMARY OF ARGUMENT ... 5
IV. ARGUMENT ... 6
A. The Standard Of Review ... 6
1. The Motion To Dismiss ... 6
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
2. The Motion For Leave To File An Amended Complaint
... 7
B. This Court Should Affirm The District Court's Dismissal
Of The Complaint ... 8
1. The District Court Appropriately Held That Plaintiff
Failed To State Any Copyright Claims ... 8
2. There Is No Probative Similarity Between Authoritas
And The Accidental Billionaires ... 12
3. There Is No Substantial Similarity Between Authoritas
And The Accidental Billionaires ... 20
C. Plaintiff Fails To State A Claim For Copyright Infringement
Arising Out Of The Social Network As The
Complaint Fails To Allege Facts Showing Either Probative
Similarity Or Substantial Similarity ... 26
1. Plaintiff Advances No Argument That The Film In-

2012 WL 2989930 (C.A.1) Page 2
fringed His Work ... 26
2. The Complaint Fails To State A Claim For Copyright
Infringement Arising Out Of The Film ... 26
D. The District Court Properly Dismissed The Defamation
Claims ... 28
*iii 1. The Statements in the Book About Which
Plaintiff Complains Are, As A Matter Of Law, Not Capable
Of Defamatory Meaning And/Or Are Protected
Opinion ... 28
a. References To Plaintiff By The Wrong Last Name
Are Not Capable of Defamatory Meaning ... 29
b. Referring To Plaintiff As “Kid” Is Not Defamatory ...
29
c. The Statements That “Hardly Anyone Paid Attention”
To Plaintiff's Web Site And That His Website “Wasn't
Particularly Slick” Are Not Capable Of Defamatory
Meaning, And Are Protected Expressions Of Opinion In
Any Case ... 30
2. The Purported “Omission” Of Plaintiff From The
Book And The Film Is Not Capable of Defamatory
Meaning, And Cannot Be “Of And Concerning”
Plaintiff In Any Event ... 31
E. Plaintiff's Defamation Claim Based On The November
6, 2011 C-Span Interview Fails ... 35
F. The District Court Properly Dismissed Plaintiff's Unfair
Competition And False Advertising Claims ... 37
G. The District Court Correctly Concluded It Would Be
Futile To Allow Plaintiff To Amend His Complaint ...
42
1. Leave To Amend A Pleading Need Not Be Granted
Where, As Here, The Amendment Would be Futile ...
43
2. Plaintiff Adds No Additional Facts To His Claims
For Copyright Infringement ... 44
3. Plaintiff Fails To Allege Any Additional Facts That
Rescue His Doomed Lanham Act Claim ... 44
4. Plaintiff Cannot Allege Facts Supporting A RICO
Claim ... 46
5. Allowing Plaintiff To Amend His Defamation Claims
Would Be Futile ... 48
*iv a. Plaintiff Alleges No New Facts That Save His
Explicit Defamation Claim ... 48
b. Plaintiff's Proposed Amended Claim For Defamation
By Omission Does Not Satisfy The “Of And Concerning”
Standard For Defamation ... 49
6. Plaintiff Cannot Make Out A Claim For Unjust Enrichment
... 50
7. Plaintiff Cannot Allege Facts Stating A Claim For
Fraud ... 51
V. CONCLUSION ... 52
Cases
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
*v TABLE OF AUTHORITIES
ACA Financial Guaranty Corp v. Advest, Inc., 512 F.3d
46 (1st Cir. 2008) ... 7
Ahmed v. Rosenblatt, 118 F.3d 886 (1st Cir. 1997) ... 7
Applera Corp. v. Michigan Diagnostics, LLC, 594
F.Supp.2d 150 (D. Mass. 2009) ... 38
Ardorno v. Crowley Towing and Transportation Co.,
443 F.3d 122 (1st Cir. 2006) ... 43
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009) ... 6, 41
Ayala-Sepulveda v. Municipality of San German, 671
F.3d 24 (1st Cir. 2012) ... 26, 27
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.
Ct. 1955, 167 L.Ed.2d 929 (2007) ... 6, 44, 52
Bessette v. Avco Financial Services, Inc., 230 F.3d 439

2012 WL 2989930 (C.A.1) Page 3
(1st Cir. 2000) ... 47
Blatty v. New York Times, 42 Cal.3d 1033, 728 P.2d
1177 (1986) ... 34
Brown v. Hartlage, 456 U.S. 45, 102 S.Ct. 1523, 71
L.Ed.2d 732 (1982) ... 32
Cashmere & Camel Hair Mfrs. Institute v. Saks Fifth
Ave., 284 F.3d 302 (1st Cir.), cert. denied, 537 U.S.
1001 (2002) ... 38, 41, 44
Cavalier v. Random House, Inc., 297 F.3d 815 (9th Cir.
2002) ... 18, 22, 25
CMM Cable Rep, Inc. v. Ocean Coast Props., Inc., 97
F.3d 1504 (1st Cir. 1996) ... 10
*vi Cole v. Westinghouse Broadcasting Co., 386 Mass.
303, 435 N.E.2d 1021 (1982) ... 30, 31, 37
Computer Associates Intern., Inc. v. Altai, Inc., 982
F.2d 693 (2d Cir. 1992) ... 11
Cytologix Corp. v. Ventana Medical Systems, Inc., 2006
WL 2042331 (D. Mass. July 20, 2006) ... 45
Damon v. Moore, 520 F.3d 98 (1st Cir. 2008) ... 28, 29,
49
Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14
L.Ed.2d 22 (1965) ... 52
Driscoll v. Bd. of Trustees of Milton Academy, 70 Mass.
App. Ct. 285, 873 N.E.2d 1177 (2007) ... 34
Dunn v. Brown, 2011 WL 4499007 (D. Mass. Aug. 16,
2011) ... 50
Federal Trade Commission v. Klesner, 280 U.S. 19, 50
S.Ct. 1, 74 L.Ed. 138 (1929) ... 45
Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340,
111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) ... 8, 10, 12
Franklin v. Ciroli, 865 F. Supp. 947 (D. Mass. 1994) ...
27
Frappier v. Countrywide Home Loans, Inc., 645 F.3d 51
(1st Cir. 2011) ... 50
Gates Rubber Co. v. Bando Chemical Industries, Ltd., 9
F.3d 823 (10th Cir. 1993) ... 11
Hayduk v. Lanna, 775 F.2d 441 (1st Cir. 1985) ... 52
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
In re Compact Disc, 456 F.Supp.2d 131 (D. Me. 2006)
... 47
*vii John G. Danielson, Inc. v. Winchester-Conant
Properties, Inc., 322 F.3d 26 (1st Cir. 2003) ... 50
Johnson & Johnson v. Carter-Wallace, Inc., 631 F.2d
186 (2d Cir. 1980) ... 41, 42, 43
Johnson v. Gordon, 409 F.3d 12 (1st Cir. 2005) ...
passim
Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984) ...
22
Lyons v. Globe Newspaper Co., 415 Mass. 258, 612
N.E.2d 1158 (1993) ... 31
Maine State Bldg. & Constr. Trades Council v. U.S.
Dep't of Labor, 359 F.3d 14 (1st Cir. 2004) ... 7
Mass. Eye & Ear Infirmary v. QLT Phototherapeutics,
Inc., 552 F.3d 47 (1st Cir. 2009) ... 50
Matthews v. Freedman, 157 F.3d 25 (1st Cir. 1998) ...
10
McCabe v. Rattiner, 814 F.2d 839 (1st Cir. 1987) ... 31
McNamee v. Jenkins, 52 Mass. App. Ct. 503, 754
N.E.2d 740 (2001) ... 34, 35, 40
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241
94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) ... 32
New England Tractor-Trailer Training of Conn., Inc. v.
Globe Newspaper Co., 395 Mass. 471, 380 N.E.2d 1005
(1985) ... 33, 35
Puerto Rico Ports Authority v. Umpierre-Solares, 456
F.3d 220 (1st Cir. 2006) ... 8

2012 WL 2989930 (C.A.1) Page 4
Quaglia v. Bravo Networks, 2006 WL 3691667 (1st Cir.
Dec. 15, 2006) ... 10
*viii Roman-Cancel v. United States, 613 F.3d 37 (1st
Cir. 2010) ... 8
Rosemont Enterprises, Inc. v. Random House, Inc., 366
F.2d 303 (2d Cir. 1966) ... 26
Schatz v. Republican State Leadership Committee, 669
F.3d 50 (1st Cir. 2012) ... 6, 7
Sharratt v. Housing Innovations, Inc., 310 N.E.2d 343
(1974) ... 33
Sipple v. Chronicle Publishing Co., 154 Cal.App.3d
1040, 201 Cal. Rptr. 665 (1984) ... 52
Taylor v. American Chemistry Council, 576 F.3d 16 (1st
Cir. 2009) ... 51
Wytrwal v. Saco School Bd., 70 F.3d 165 (1st Cir. 1995)
... 26
Yankee Candle Co., Inc. v. Bridgewater Candle Co.,
LLC, 259 F.3d 25 (1st Cir. 2001) ... 9, 20
Yohe v. Nugent, 321 F.3d 35 (1st Cir. 2003) ... 31, 37
Statutes
15 U.S.C. § 1125(a) ... 44
18 U.S.C. § 1961(1) ... 47
Other Authorities
Fed. R. App. P. 28(i) ... 5
Fed. R. Civ. P. 9(b) ... 47, 52
Fed. R. Civ. P. 12(b)(6) ... 6, 43
Fed. R. Civ. P. 15(a) ... 43
*IX REASONS WHY ORAL ARGUMENT
SHOULD NOT BE HEARD
Defendants-Appellees Random House, Inc., Mezco,
Inc., and Benjamin Mezrich respectfully submit that,
because the district court's orders granting appellees'
motions to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) and denying appellant's motion for
leave to amend are plainly correct and implicate no unsettled
questions of law, oral argument is unnecessary.
I. STATEMENT OF THE CASE
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
This case is the latest front in plaintiff-appellant Aaron
Greenspan's years long campaign for public recognition
of his supposed role in the creation of facebook.com
(“Facebook”). While plaintiff's crusade was previously
aimed directly at Facebook, Inc. and its founder Mark
Zuckerberg, who plaintiff contends stole from him the
idea for Facebook, plaintiff has now turned his focus to
defendants-appellees, the author (“Mezrich”) and publisher
(“Random House”) of the book The Accidental
Billionaires (the “Book”) and the producer (“Columbia
Pictures”) of the film The Social Network (the “Film”).
The core of plaintiff's case is that defendants told the
story of the founding of Facebook without giving him
the credit he believes he is due, and that they copied
scattered elements from plaintiff's book Authoritas: One
Student's Harvard Admissions and the Founding of the
Facbook Era (“Authoritas”), which tells plaintiff's life
story, including his version of Facebook's founding.
This appeal represents nothing more than plaintiff's improper
attempt to dragoon the legal system, including
this Court, into forcing defendants to tell plaintiff's version
of history, and it should be denied.
The Complaint includes claims for copyright infringement
(claims one through three), unfair competition and
false advertising (claim four), and defamation (claim
five). As to copyright infringement, plaintiff alleges that
the depictions in the Book and the Film of a meeting
between two Harvard students, the Winklevoss twins,
and former Harvard University president Lawrence
Summers infringes the description in Authoritas of
plaintiff's own separate and unrelated meeting with
Summers. As to the defamation claims, the Complaint
points to certain references to plaintiff in the Book, but
focuses on an alleged defamation by omission based on
the Book's purported failure to accurately describe
plaintiff's contributions to the creation of Facebook, and
the Film's failure to mention him at all. The Complaint

2012 WL 2989930 (C.A.1) Page 5
also alleges defamation based on statements Mezrich
made in a November 6, 2011 interview on C-SPAN. Finally,
the Complaint alleges that defendants violated the
Lanham Act by marketing the Book as “nonfiction” and
allegedly by buying “five-star” ads and boosting the
Book onto the best-sellers list through bulk purchases.
In the proposed First Amended Complaint (“FAC”),
plaintiff added, based on allegations substantially similar
to those in the Complaint, RICO, unjust enrichment,
and fraud claims.
A. Proceedings
On November 18, 2011, plaintiff filed his Complaint in
the United States District Court for the District of Massachusetts.
Defendants Random House, Mezco, and
Mezrich filed a motion to dismiss the Complaint with
prejudice, and defendant Columbia Pictures filed a separate
motion to dismiss. Plaintiff filed his opposition to
the motions on January 17, 2012, and defendants filed
reply memoranda on February 14, 2012. Oral argument
was held on the motions to dismiss on February 16,
2012. On February 20, 2012, while defendants' motions
were pending, plaintiff filed a motion for leave to file
an amended complaint, and attached the FAC. Defendants
opposed plaintiff's motion. On May 9, 2012, Magistrate
Judge Robert G. Collings issued orders granting
defendants' motions to dismiss, and denying plaintiff's
motion for leave to file an amended complaint. On May
10, 2012, plaintiff filed this appeal.
II. STATEMENT OF THE FACTS
While a student at Harvard University, plaintiff developed
a website called “houseSYSTEM,” which included
a feature he called “The Facebook.” A15-16, ¶
23. Plaintiff's classmate, Zuckerberg, developed the
website Facebook.com. For years, plaintiff has sought
public recognition for what he believes to be his contributions
to Facebook. See A16, ¶ 25; A30, ¶ 76.
In October 2007, plaintiff met with an editor at Random
House to pitch the manuscript for his book Authoritas.
After Random House declined to publish the
manuscript, plaintiff eventually self-published the book.
Authoritas is plaintiff's life story, including his development
of houseSYSTEM and his belief that Zuckerberg
copied his ideas when he created Facebook. Authoritas'
six page prologue depicts a meeting plaintiff had with
then-Harvard University President Lawrence Summers
concerning how he was treated by Harvard's Office of
General Counsel over certain violations relating to his
houseSYSTEM website. Authoritas at 1-6.
In 2008, plaintiff petitioned the United States Patent and
Trademark Office to cancel Facebook's registered trademarks
for the term “Facebook.” A17, ¶ 30. In May,
2009, plaintiff settled that matter with Facebook and
Zuckerberg. Id., ¶ 31.
In 2008, Mezrich began working on the Book, which
depicts Zuckerberg's creation of facebook.com, and his
founding, along with fellow Harvard student Eduardo
Saverin, of Facebook, Inc. The Book focuses on the relationship
between Zuckerberg and Saverin, as well as
Zuckerberg's interaction with fellow Harvard students
Tyler and Cameron Winklevoss.
Chapter 16 of the Book depicts a meeting between the
Winklevosses and Summers at Summers' office in early-
2004. The meeting concerned the Winklevosses' complaint
that Zuckerberg stole the idea for Facebook from
them.
The Accidental Billionaires was developed into a motion
picture, The Social Network. Plaintiff “does not appear
explicitly by name” in the Film, and no character
in the Film “is intended to represent Plaintiff.” A28, ¶
66.
On November 6, 2011, C-SPAN televised an interview
of Mezrich. During the interview, plaintiff's father
called into the program and stated his belief that the
Book is inaccurately described as nonfiction. In response,
Mezrich stood by the description of The Accidental
Billionaires as nonfiction.
III. SUMMARY OF ARGUMENT [FN1]
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
FN1. Mezrich, Mezco, and Random House also
adopt by reference the arguments in the brief of
Defendant-Appellee Columbia Pictures. See

2012 WL 2989930 (C.A.1) Page 6
Fed. R. App. P. 28(i).
Through his Complaint, plaintiff tries to convert his belief
that he has not been afforded proper credit for his
supposed contributions to the invention of Facebook into
claims for copyright infringement, defamation, false
advertising and unfair competition. However, as the district
court held, plaintiff cannot allege facts sufficient to
support any of these claims.
As to copyright, the district court correctly found no
substantial similarity between Authoritas and the Book
or the Film. Indeed, plaintiff has not identified any actionable
similarities at all, and has instead pointed to a
random scattering of unprotectible facts, ideas, isolated
words and phrases, and scenes a faire. As to the Film,
plaintiff does not advance any argument to the contrary
in his brief.
The court also correctly dismissed the defamation
claims, as none of the references to plaintiff in the Book
are negative, much less capable of defamatory meaning,
and are for the most part non-actionable opinion. The
fact of “omission” of plaintiff from the Book and the
Film is likewise not capable of defamatory meaning,
and does not render either work “of and concerning”
plaintiff.
Plaintiff also fails to state a claim under the Lanham
Act, as he cannot allege any legally cognizable injury,
does not identify any “commercial advertisement” containing
a misrepresentation of fact, and cannot show
that any purported misrepresentation was material.
The district court also correctly denied plaintiff's motion
for leave to amend the complaint, which added
mostly argument and only a few, legally-irrelevant
facts. The additions neither save plaintiff's old claims,
nor support his new claims.
IV. ARGUMENT
A. The Standard Of Review
1. The Motion To Dismiss
This Court “give[s] de novo review to a Rule 12(b)(6)
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
dismissal, using the same criteria as the district court.”
Schatz v. Republican State Leadership Committee, 669
F.3d 50, 55 (1st Cir. 2012).
To survive a motion to dismiss, a complaint must allege
“enough facts to state a claim to relief that is plausible
on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007).
When applying the Twombly standard, the court should
first “isolate and ignore statements in the complaint that
simply offer legal labels and conclusions or merely rehash
cause-of-action elements.” Schatz at 55; Ashcroft
v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009) (a complaint is insufficient if it
provides only *7 “labels and conclusions[,] a formulaic
recitation of the elements of a cause of action[, or] naked
assertions devoid of further factual enhancement”).
The court should then “take the well-pled (i.e. nonconclusory,
non-speculative) facts as true, drawing all
reasonable inferences in the pleader's favor, and see if
they plausibly narrate a claim for relief.” Schatz at 55.
“Plausible” is more than “merely possible” and
“gauging a pleaded situation's plausibility is a ‘content
specific’ job that compels [the court] ‘to draw on’ [its]
‘judicial experience and common sense.’ ” Id., citing
Iqbal, 129 S.Ct. at 1949-50. When reviewing the Complaint,
the court may consider documents attached to or
incorporated into it, facts susceptible to judicial notice
and concessions plaintiff may have made in response to
the motions to dismiss. Schatz at 55-56.
2. The Motion For Leave To File An Amended Complaint
Denial of leave to amend is reviewed “for abuse of discretion,
deferring to the district court for any adequate
reason apparent from the record. Maine State Bldg. &
Constr. Trades Council v. U.S. Dep't of Labor, 359 F.3d
14, 18 (1st Cir. 2004). One such “adequate reason” is
the futility of the amendment. ACA Financial Guaranty
Corp v. Advest, Inc., 512 F.3d 46, 56 (1st Cir. 2008).
While liberal interpretation of pro se pleadings allows a
court to intuit the correct cause of action where sufficient
facts are pled, it “does not insulate a party from
complying with procedural and substantive law.”

2012 WL 2989930 (C.A.1) Page 7
Ahmed v. Rosenblatt, 118 *8 F.3d 886, 890 (1st Cir.
1997) (pro se pleading should be dismissed where “the
formal elements of the claim were stated without the requisite
supporting facts”). Nor does pro se status allow
the court to consider facts not alleged or incorporated in
the Complaint, as plaintiff urges. Appellant's Opening
Brief (“AOB”) 32; AOB Addendum 1 (“Add. 1”) at 28
n.10.
As to both motions, this Court is not bound by the district
court's reasoning, and may affirm on “any ground
made manifest by the record.” Roman-Cancel v. United
States, 613 F.3d 37, 41 (1st Cir. 2010); Puerto Rico
Ports Authority v. Umpierre-Solares, 456 F.3d 220, 224
(1st Cir. 2006).
B. This Court Should Affirm The District Court's
Dismissal Of The Complaint
1. The District Court Appropriately Held That
Plaintiff Failed To State Any Copyright Claims
To plead a claim for copyright infringement, a “plaintiff
must allege plausible facts demonstrating (1) ownership
of a valid copyright, and (2) copying of constituent elements
of the work that are original.” Feist Publ'ns, Inc.
v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct.
1282, 113 L.Ed.2d 358 (1991); Johnson v. Gordon, 409
F.3d 12, 18 (1st Cir. 2005). Only the second element,
whether plaintiff has adequately alleged “wrongful
copying,” is at issue here. Johnson, 409 F.3d at 18.
*9 Determining whether there has been wrongful copying
involves a two-step process. The first addresses
whether the alleged infringer actually copied protected
material. Id. Where there is no direct evidence of copying,
this prong may be satisfied through evidence that
the defendant had access to the copyrighted work and
that “the two works are so similar that the court may infer
that there was factual copying.” Id., quoting Lotus
Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807, 813 (1st
Cir. 1995). [FN2] This degree of similarity is called
“probative similarity.” Id.
FN2. For purposes of the underlying motion to
dismiss and this appeal only, access is as-
sumed.
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
The second inquiry, reached only if probative similarity
is established, addresses whether the copying is legally
actionable. Id. The answer to that question turns on
whether the copying is “so extensive that it rendered the
infringing and copyrighted works substantially similar.”
Yankee Candle Co., Inc. v. Bridgewater Candle Co.,
LLC, 259 F.3d 25, 33 (1st Cir. 2001). To determine substantial
similarity, this Court uses the “reasonable observer”
test, which asks “whether the accused work is so
similar to the plaintiff's work that an ordinary reasonable
person would conclude that the defendant unlawfully
appropriated the plaintiff's protected expression by
taking material of substance and value.” Yankee Candle,
259 F.3d at 33; see also Johnson, 409 F.3d at 18.
*10 The most fundamental tenet of copyright law is that
it protects only the original expression of an idea, not
“the ideas themselves or banal expressions of them.”
Johnson, 409 F.3d at 19. Because of this
“idea/expression” dichotomy, when applying both the
“probative similarity” and “substantial similarity” tests,
the court must consider only the protected expressive
elements. Id. at 18. Therefore, “a court must engage in
dissection of the copyrighted work by separating its original,
protected expressive elements from those aspects
that are not copyrightable because they represent unprotected
ideas or unoriginal expressions.” Id. at 19. (“the
requirement of originality cuts across both of these similarity
criteria”); see also Matthews v. Freedman, 157
F.3d 25, 27 (1st Cir. 1998).
A number of rules flow from this basic principle, three
of which have particular relevance here. First, “there
can be no valid copyright in facts,” Feist, 499 U.S. at
345. This is true of all facts, “scientific, historical, biographical,
and news of the day.” Id. at 348 (citation and
internal quotation omitted). Second, “copyright law
denies protection to fragmentary words and phrases,” as
such elements “do not exhibit the minimal level of creativity
necessary to warrant copyright protection.”
CMM Cable Rep, Inc. v. Ocean Coast Props., Inc., 97
F.3d 1504, 1519 (1st Cir. 1996). Third, “stock scenes or
elements that necessarily flow from a common idea” --
“scenes-a-faire” -- also cannot form the basis of a copy-

2012 WL 2989930 (C.A.1) Page 8
right claim. Id. at 1522 n.25; see also Quaglia v. Bravo
Networks, 2006 WL *11 3691667 at *1 (1st Cir. Dec.
15, 2006) (unpublished), quoting MyWebGrocer, LLC v.
Hometown Info, Inc., 375 F.3d 190, 194 (2d Cir. 2004)
(“Scenes a faire are unprotectible elements that follow
naturally from a work's theme rather than from an author's
creativity”).
Relying on cases from the Tenth and Second Circuits,
plaintiff seeks to avoid these rules, advocating for a “a
holistic analysis involving ‘selection and/or arrangement’
of facts, including ‘otherwise nonprotected information’.”
AOB 15. However, plaintiff's own authorities
for what would be a significant departure from this
Court's long-settled analytical framework do not support
him. In Gates Rubber Co. v. Bando Chemical Industries,
Ltd., 9 F.3d 823 (10th Cir. 1993), the court did
suggest that, at least in the context of computer software,
a preliminary unfiltered comparison of the works
may aid a court in discerning a pattern of copying that
might otherwise not be obvious. But the court was clear
that “[s]uch a preliminary step does not obviate the ultimate
need to compare just the protected elements of the
copyrighted program with the alleged infringing program.”
Id. at 841. In Computer Associates Intern., Inc.
v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992), the Second
Circuit announced a construct -- the
“Abstraction-Filtration-Comparison” test -- for determining
substantial similarity in computer programs that
emphasizes the need to filter out unprotectible material.
Id. at 706-711. These courts, then, do not deviate from
this Court's mandate, derived from the “predicate *12
requirement of originality” -- the sine qua non of copyright
law, Feist, 499 U.S. at 348 --, that an overall impression
of similarity does not demonstrate unlawful
copying if that impression “flows from similarities as to
elements that are not themselves copyrightable.” Johnson,
409 F.3d at 19.
Although he neither alleged it in the Complaint nor
made the argument below, plaintiff now contends that
his selection and arrangement of facts are protectible
and that it is those elements that Mezrich copied. AOB
14. It is true that the selection and arrangement of otherwise
unprotectible facts in a nonfiction work such as a
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
compilation can provide the required originality to merit
protection for those elements. See Feist, 499 U.S. at
349. But here there is no such similarity between Authoritas
and either the Book or the Film. Instead, they
are remarkably dissimilar, and application of the probative
and substantial similarity tests leads to only one
conclusion -- the copyright infringement claims fail.
2. There Is No Probative Similarity Between Authoritas
And The Accidental Billionaires
Most, but not all, of the purported similarities between
the works relate to a single scene in each book describing
meetings with Harvard president Lawrence Summers.
A19, ¶ 39. In his prologue and on page 285,
plaintiff depicts a meeting he had with Summers to
complain about his treatment at the hands of Harvard's
Office of General Counsel, which had accused him of
improprieties in connection with his houseSYSTEM
website. Chapter 16 of the Book describes a meeting
*13 between Summers and the Winklevoss twins who
were there to complain about Zuckerberg's alleged
breach of Harvard's honor code by, according to the
twins, stealing their concepts when he developed Facebook.
The descriptions of the meetings are nothing
alike. Therefore, no inference of copying arises. For this
reason alone, plaintiff's copyright infringement claims
fail. [FN3]
FN3. Based on his direct infringement claim,
plaintiff also attempted to allege claims for vicarious
and contributory infringement. Because
they depend on the direct infringement claim,
they fail along with it.
The first step in the court's analysis is to filter out unprotectible
material. In this case, that eliminates most, if
not all, of the similarities plaintiff cites because the purported
similarities are nothing more than unprotected
facts and ideas or single words or fragments of words
and phrases that in almost every case are not similarly
expressed in any event. For example, plaintiff points to
the subtitle of The Accidental Billionaires, which includes
the phrase “The Founding of Facebook,” and the
subtitle to Authoritas, which includes the phrase “the
Founding of the Facebook era.” These are unprotectible

2012 WL 2989930 (C.A.1) Page 9
banal expressions that here convey different ideas -- the
creation of a company and the beginning of an era in
time.
Plaintiff alleges that the title of Chapter 2 of the Book,
“Harvard Yard,” was copied from the title of Chapter 11
of Authoritas, “The Cars of Harvard Yard.” The titles
convey different ideas, and the phrase “Harvard Yard”
is not protectible.
*14 Plaintiff contends that the description of the
Winklevoss twins sitting on a couch in a reception area
outside Summers' office before their meeting begins is
similar to his description of himself sitting inside Summers'
office after his meeting with Summers has already
started. But, even if protectible, plaintiff's expression is
not remotely similar to the material in The Accidental
Billionaires to which he compares it. In Authoritas,
plaintiff is in Summers' office “sitting on a plush beige
sofa in Massachusetts Hall, a small rectangular building
lodged snugly next to Harvard Yard's Johnston Gate.”
Authoritas at 1. In The Accidental Billionaires, the
Winklevosses are waiting in the reception area “sitting
next to each other on a couch that felt as old as Massachusetts
Hall itself, being gawked at by a receptionist.”
Book at 123.
Similarly, at page 285 of Authoritas, plaintiff describes
a woman telling plaintiff that Summers is ready to see
him: “ ‘The President will see you in a moment,’ the
woman smiled.” Focusing on the words, “the woman”
and “the president will see you,” plaintiff alleges that
the following two sentences found at page 124 of The
Accidental Billionaires were copied from his work:
Authoritas The Accidental Billionaires
Chapter 24 title: Veritas Chapter 16 title: Veritas
“There was a computer with a sleek flat screen on a
desk on the other side of the room, and the dark
African masks resting on the shelves to my left were
silently watching me think.” Pg.1
“The President paused to think, tapping his foot under
the table. I had never observed such palpable impatience
before.” Pg.3
“The woman grabbed the receiver, nodded, and then
glanced in their direction. ‘The president will see you
now.’ ” These fragmentary words and phrases are nothing
more than unprotectible clichéd language commonly
used to convey the idea that an individual is ready for a
meeting.
*15 Next, plaintiff notes that in his book he alludes to
Summers' office as the embodiment of power by writing
that the “deep shade of red” of the walls “by virtue of
their location in Harvard's inner sanctum defined the
word crimson,” Authoritas at 1, and compares his allusion
to the direct reference in The Accidental Billionaires
to Summers' office as the “ultimate power on campus.”
Book at 124. The expression is again radically different.
In Authoritas, plaintiff refers to an assistant motioning
him “to a small sofa that was positioned across from a
giant armchair,” Authoritas at 285, and compares that to
the receptionist in The Accidental Billionaires waving
the Winklevosses “both in [to the office], pointing to
the chairs in front of the desk.” Book at 125. This is unoriginal
expression that is in any event not similar.
The remainder of the 21 examples of similarities called
out in the Complaint are of the same ilk -- inapt comparisons
between expressions of different ideas,
scattered bits of unprotectible ideas, phrases, fragments
and common stock scenes that alone or together do not
give rise to an inference of copying:
“There were bookshelves lining one wall, a huge
wooden desk, a bunch of antique-looking side tables,
and a small sitting area atop an Oriental carpet. On
the desk, Tyler noticed a Dell desktop computer.”
Pg.125
“The disdain in Summers's voice was palpable.”
Pg.126
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2012 WL 2989930 (C.A.1) Page 10
“My tone of voice carried a mixture of disgust and
disbelief . . .” [FN4] Pg.5
“A minute or two later, the President himself walked
into the room, followed by an African-American woman.”
Pg.285
“Nope, other door,” the assistant motioned . . .” Pg.6
“I felt positively sickened. The President believed
The Harvard Crimson--the same newspaper that had
insinuated that he was fat, chubby, and slow--more
than he believed an undergraduate who had taken the
time to share a real concern at his office hours.” Pg.6
“ ‘What can I do for you?’ he said. From the moment
the sound of the first word left his mouth and entered
my ear, I knew that our meeting would be nothing
less than a verbal train wreck. His tone indicated that
I was already being ridiculed.” Pg.1
“There was a woman sitting across from me, notebook
in hand, ready to record my thoughts and emotional
state so that in ten or twenty or a hundred
years, someone might dig them out of a dusty filing
cabinet.” Pg.1
“ ‘Nope, other door,’ the assistant motioned, pointing
behind me, and setting my cheeks on fire.' ” Pg.6
“I sat, dumbfounded. After five very long second,
sitting like a pigeon on his couch, I regained my
composure.” Pg.4
“ ‘I know what the man said,’ I snapped in my mind.
Outwardly, I swallowed.” Pg.4
“The President's mouth twisted into a smile. ‘Well,
Aaron, what do you want me to do?’ ” Pg.4
“My hatred for the system--my teachers, my classes,
my so-called friends, my activities--had reached new
levels.” [FN6] Pg.89
“ ‘There are no real channels to go through at Harvard
to make a site like this.’ ” Pg.5
“As they entered the office, Summers was sitting in a
leather chair behind his desk, a phone pressed against
his ear. A few feet away sat his executive assistant--a
pleasant-looking African American woman.” Pg.125
“It was truly depressing. The President of the university
was telling them that they were on their own.
The administration was washing its hands of the
whole thing.” Pg.130-131
“Slowly, Summers leaned forward, and his chubby
hand...” [FN5] Pg.126
“He leaned back in his chair--put his feet up on his
desk, and stared at the brothers with pure distaste in
his eyes.
‘Why are you here?’ ” Pg.126
“He glanced at the African American woman, who
was dutifully taking notes; she'd already written
Summers's question down across the top of a blank
sheet of lined notebook paper.” Pg.126
“Tyler coughed, his face turning red.” Pg.126
“After he let a few seconds pass, so the man could at
least pretend to reread their letter, Tyler cleared his
throat.” Pg.128
“ ‘So what do you want me to do about it.’ ” Pg.128
”He felt...betrayed. By this man, by the system, by
the university itself.” Pg.130
“ ‘The university isn't equipped to handle a situation
like this.’ ” [FN7] Pg.130
“ ‘I do not see the instance of disrespect here,’ the “ ‘I've read your complaint. And I've read Mark's re-
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

2012 WL 2989930 (C.A.1) Page 11
President said flatly. I was shocked.” Pg.2 sponse. I don't see this as a university issue.’ ”
Pg.129
“ ‘What President Summers means is not that you are
‘enjoying’ the fight,' his assistant said looking at
President Summers, and then at me. There was an
awkward silence.” Pg.4
“Tyler stared at the man in shock.” [FN8] Pg.128
”It was obvious from his silence that he didn't care
what Tyler and Cameron did about the situation.”
Pg.130
“There was only one thing to do.” ”The only thing left, Tyler realized, was to go after
Mark themselves.” Pg.131
“ ‘I have to get out of here.’ ” Pg.6 “Eduardo felt the walls closing in. around him. He
had to get out of there.” [FN9] Pg.230
FN4. Contrary to the Complaint, these two phrases do not appear on the same page. The reference to Summers
tapping his foot is on page 3, while the reference to “tone of voice” appears on page 5. Moreover, plaintiff's description
of these two phrases as “[t]he narrator describ[ing] the personality” of President Summers is patently
false. A21, Item 9. The statement regarding “tone of voice” refers to plaintiff's tone of voice, as demonstrated by
the use of the pronoun “my” in his first-person narrative.
FN5. Plaintiff takes these two phrases from different pages in The Accidental Billionaires in an attempt to manufacture
similar “rhetorical styles.” A22, Item 11.
FN6. Here, plaintiff goes so far as to pull a statement from an entirely different place in his book, page 89,
where he is expressing his opinion of his high school.
FN7. The statements express entirely distinct ideas: in Authoritas, the student complaining that Harvard had no
process to allow for creation of a website as plaintiff had created, and in The Accidental Billionaires, the president
observing that Harvard was not equipped to deal with a dispute between students over ownership of ideas.
Contrary to the allegations of the Complaint, then, this statement in The Accidental Billionaires is made by Summers.
Thus, plaintiff's description of the purported “identical expression” as “[t]he student posits the possibility
that the situation is unprecedented” is plainly false. A23, Item 18.
FN8. As demonstrated by the fact that the reference to Tyler's shock appears on the page before Summers' statement,
it was not caused by Summers' statement. Plaintiff cannot juxtapose “random similarities scattered
through out the works” to create the illusion of similarity where none exists. Cavalier v. Random House, Inc.,
297 F.3d 815, 825 (9th Cir. 2002).
FN9. Here, plaintiff has randomly plucked a phrase from page 230 of the Book that refers to a different character,
Eduardo Saverin, and that has no connection whatsoever to the Winklevosses' meeting with Summers, described
at pages 122-131.
*19 These examples prove the opposite of what plaintiff
intends: there is nothing protectible in the phrases and
sentences he haphazardly rips from the books, no inference
of copying can be drawn from them, and therefore,
“probative similarity” does not exist. [FN10]
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
FN10. Plaintiff asserts that the district court ignored
some of these alleged similarities. AOB
15. He is wrong. The court considered each of

2012 WL 2989930 (C.A.1) Page 12
them, but selected only some of them to discuss
in detail. As to the rest, the district court
noted in a footnote that they were insufficient
to demonstrate probative similarity. AOB Add.
1 at 12 n.6.
In his brief, plaintiff adds a few examples, and recasts a
few others, but they only serve to provide the exclamation
point to the conclusion that there is no “probative
similarity.” For example, plaintiff compares his observation
that Summers' receptionist spent a lot of time
sending Instant Messages using “AIM running on Windows
98” with Tyler Winklevoss's observation that the
receptionist was playing with her Rolodex and his mental
question “[a]nd who still used Rolodexes, anyways?”
AOB 16. The similarity is difficult to see.
The district court's analysis could have ended here, and
this Court's analysis should end here. There is no similarity
between the two works, let alone “a sufficient degree
of similarity [] between [Authoritas] and [The Accidental
Billionaires] to give rise to an inference of actual
copying.” Johnson, 409 F.3d at *20 18. However,
contrary to plaintiff's assertion that the district court
gave his case short shrift, AOB 10, the court indulged in
the inference that if certain of plaintiff's allegations
were taken as true, they “may demonstrate a sufficient
degree of similarity to allow the court to find that there
is probative similarity between the defendants' works
and the plaintiff's protected expressions.” AOB Add. 1
at 18-19. [FN11] The district court then applied the substantial
similarity test and correctly concluded that the
works were not substantially similar.
FN11. The district court referenced six of
plaintiff's examples which, according to the
court, if taken as true “may” have demonstrated
probative similarity. However, the court then
dismisses the similarities in two of those examples
as springing from the underlying ideas
themselves, and a third as falling within the
doctrine of scenes-a-faire, and therefore, not
protectible. AOB Add. 1 at 20, 22. The court,
then, had no need to consider them at all either
when determining whether to proceed to the
next step in the analysis or when applying the
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
substantial similarity test. That the district
court chose to do so evidences a particularly
liberal interpretation of the Complaint.
3. There Is No Substantial Similarity Between Authoritas
And The Accidental Billionaires
No reasonable reader viewing the works as a whole, or
even focusing on the descriptions of the Summers meetings
alone, “would conclude that the defendant unlawfully
appropriated the plaintiff's protected expression by
taking material of substance and value.” Yankee Candle,
259 F.3d at 33.
The books are not remotely similar, let alone substantially
similar. The Accidental Billionaires is about the
origins of Facebook, focusing on the *21 relationship
between Zuckerberg and Saverin, and how that relationship
deteriorated into open conflict. Important secondary
characters include the Winklevosses and Sean Parker,
Facebook's first president. The book is written in the
third-person, and tells the story, at various times, from
the perspectives of Saverin, Parker, and Tyler Winklevoss.
In contrast, Authoritas is about plaintiff's life story,
starting with his childhood. As plaintiff tells his readers,
“[t]his book is about the strange events that have unfolded
in my life, limited as it has been, and specifically, it
is an attempt to answer a question that troubled me for
some time after I completed my education. . . . My
question is, how was it possible for such a wonderful
education to be so horrible?” Authoritas at xii.
Plaintiff's search for the answer to his question is expressed
solely from his perspective and is written in the
first-person. The book does not address the origins of
Facebook until page 286 and then it focuses on
plaintiff's belief that Zuckerberg copied the idea for
Facebook from houseSYSTEM. It does not describe
Zuckerberg's relationship with Saverin and only briefly
addresses Zuckerberg's dispute with the Winklevosses.
Neither are the descriptions of the two meetings that are
the focus of the Complaint similar. First of all, they are
different meetings, occurring months apart, concerning
different participants -- other than Summers --, and dif-

2012 WL 2989930 (C.A.1) Page 13
ferent *22 topics. To the extent there are any commonalities,
they are unprotectible elements common to any
meeting and are not expressed in similar fashion.
Not surprisingly, then, plaintiff looks to random bits
and pieces of the meetings in his failed attempt to show
any similarity at all. However, plaintiff cannot allege
substantial similarity by pointing to random similarities
scattered throughout the works. See Cavalier, 297 F.3d
at 825 (“random similarities scattered throughout the
works” are “inherently subjective and unreliable”);
Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9th Cir.
1984) (same).
On appeal, plaintiff shifts his focus and heavily relies
on his selection and arrangement of facts, arguing that it
is those elements that are appropriated in The Accidental
Billionaires. The randomness in plaintiff's selection
of alleged instances of copying, the fact he has found it
necessary to compare the expression of different ideas,
to pull sentences from different parts of the works and
put them together before making his comparison, to reorder
the facts, and, in some instances, to flat out misrepresent
the import of the passages defeat the notion
that this case implicates any protectible selection or arrangement
of facts from Authoritas. But even if plaintiff
could demonstrate some protectible -- that is original -selection
and arrangement of facts, he could not, and
has not demonstrated that those elements were copied in
The Accidental Billionaires. Only a few examples make
the point.
*23 Plaintiff notes that “[b]oth meetings begin after a
waiting period with a smiling receptionist.” AOB 17.
[FN12] But the authors describe the meetings in entirely
different ways. Plaintiff begins at page 1 as his meeting
has already started and proceeds chronologically to the
end. Not until 285 pages later does he describe the period
before the meeting starts when he meets the smiling
“office worker.” In contrast, the depiction in the Book is
all in one place and proceeds chronologically from the
waiting period in the reception area to the end of the
meeting.
FN12. Plaintiff's descriptions of the content of
the books is suspect. In Authoritas, there is no
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
“receptionist” who greets plaintiff, but rather a
secretary. He does not describe her as
“smiling.” After waiting nearly an hour, he is
called into the president's office by an “office
worker,” evidently someone other than the secretary.
The office worker smiles as she shows
plaintiff into the office and directs him to his
seat on the sofa. All of this is described on
page 285, whereas the meeting itself is described
on pages 1 through 6. In contrast,
Mezrich begins his depiction of the meeting
with the waiting period, describing a receptionist
who, when alerted that the president would
see the Winklevosses, points them to a door.
As they get up off of the couch, one of the
twins smiles at her and she smiles back. Book
at 124-25.
Moving to the content of the meetings themselves,
plaintiff points out that he and Mezrich both describe
the location of the president's office, the sofas on which
the students sat, and the fact that the office is the center
of authority of the university. AOB 16-17. First, these
are all natural things to describe that flow from the
scene itself; that is, they do not evidence any original
selection of facts. As to arrangement, plaintiff's problem
is that his description of the sofa and the location of the
office come after plaintiff is sitting in Summers' office
and his *24 meeting has already started. Authoritas at 1.
In The Accidental Billionaires, the Winklevoss twins
are sitting on a sofa in a reception area before their
meeting begins. Book at 123-124. Moreover, plaintiff's
description of the sofa, and indirect mention of the
power of the office by way of the red color of the walls
are almost immediately adjacent to each other. Authoritas
at 1. In contrast, Mezrich's direct statement that the
twins were waiting in the reception area of “the ultimate
power on campus” is separated from the opening scene
where they are sitting on the couch by nearly a page of
text. Book at 123-124.
Next plaintiff compares his own apprehensiveness expressed
in the thought that “our meeting would be nothing
less than a verbal train wreck” with the Winklevosses'
“looming sense of dread.” AOB 17. Once again,

2012 WL 2989930 (C.A.1) Page 14
not only is the expression of the ideas entirely different,
they come at entirely different points in the respective
meetings. In plaintiff's depiction of his meeting, he expresses
his apprehensiveness immediately after Summers
first speaks to him. Authoritas at 1. Mezrich
voices the Winklevoss's “looming sense of dread” while
they are still in the waiting room before they have even
met Summers. Book at 124.
Plaintiff then compares a string of ordinary words,
phrases and ideas such as “the woman smiled” to “[a]t
least she smiled back,” “the president will see you now”
to “the president will see you in a moment,” and
“[w]hat can I do for you” to “[w]hy are you here,” the
fact that both books mention a computer on a desk, that
*25 Summers was accompanied by an African-American
assistant who took notes at the meeting, and the use
in both works of “palpable,” “the man,” and “the system.”
AOB 17-18. First, plucking stray words and
phrases from the texts and juxtaposing them cannot
form the basis of a claim based on the selection and arrangement
of facts. Cavalier, 297 F.3d at 825. Second,
there is no originality in the selection or arrangement of
the things plaintiff mentions. There is nothing original
about a receptionist -- smiling or not -- greeting visitors
to the president of Harvard, or the fact of a computer on
a desk, or that the president was accompanied by an assistant
who took notes. Even the fact that the assistant
in both meetings is African-American does not show
copying given that the meetings occurred within months
of each other, so the assistant was likely the same person.
There is also nothing original about a meeting that
begins with the logical question, “how can I help you.”
In short, no reasonable reader could conclude that Authoritas
and The Accidental Billionaires are substantially
similar in their selection and arrangement of facts.
[FN13]
FN13. Plaintiff makes two final meritless arguments.
First, he takes issue with the district
court's conclusion that even had Mezrich
copied the respective accounts of Summers' reactions
to the students and manner and the descriptions
of the students' responses in the
meeting with Summers, the five sentences that
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
comprise these elements “are quantitatively and
qualitatively insubstantial in the context of Authoritas
taken as a whole.” AOB Add. 1 at 23.
Plaintiff's argument is of no moment, however,
because his allegations show neither probative
nor substantial similarity. Thus, there is nothing
to measure for its quantitative or qualitative
relevance to his book as a whole. Second,
plaintiff argues that Mezrich authored a rival
book to his and notes that through plaintiff's
website Mezrich had access to plaintiff's research
material. Plaintiff then cites Rosemont
Enterprises, Inc. v. Random House, Inc., 366
F.2d 303 (2d Cir. 1966) for the proposition that
one cannot appropriate the work of another's
labor to publish a rival work. Untethered as it
is from any allegation in the Complaint, the argument
adds nothing to save the copyright
claims.
*26 C. Plaintiff Fails To State A Claim For Copyright
Infringement Arising Out Of The Social Network
As The Complaint Fails To Allege Facts Showing
Either Probative Similarity Or Substantial Similarity
1. Plaintiff Advances No Argument That The Film
Infringed His Work
Plaintiff makes no argument that the Film infringed Authoritas
and his Statement of Issues does not address the
Film at all as it relates to his copyright claims. Therefore,
his claim for copyright infringement based on the
Film is waived. See Wytrwal v. Saco School Bd., 70
F.3d 165, 168 n.1 (1st Cir. 1995) (“claims not included
in statement of issues have, on appeal, been abandoned
and are waived”); Ayala-Sepulveda v. Municipality of
San German, 671 F.3d 24, 30 n.5 (1st Cir. 2012)
(arguments not made in party's opening brief are
waived).
2. The Complaint Fails To State A Claim For Copyright
Infringement Arising Out Of The Film
To the extent plaintiff has properly appealed the dismissal
of those claims, as with the Book, the Film has a

2012 WL 2989930 (C.A.1) Page 15
different focus (the conflict between Zuckerberg and
*27 Saverin) and follows different characters
(Zuckerberg, Saverin, Parker, and the Winklevosses)
than Authoritas, which focuses on plaintiff's personal
story.
Moreover, plaintiff's claim is based on just two scenes:
the meeting between the Winklevosses and Summers,
and a scene in which Zuckerberg, at his Harvard Administrative
Board hearing, states that he deserves
“recognition” from the Board. A27, ¶¶ 62-63. As to the
first, the claim is entirely derivative of plaintiff's claim
against the Book and fails for all of the same reasons.
See A27, ¶ 62 (alleging that the scene is “based upon
Defendant Mezrich's account”).
As to the second, there is no parallel scene in Authoritas
, and it never describes plaintiff making a similar statement
to anyone. Rather, plaintiff writes about his
“frustration about Harvard University's unacknowledged
‘proof that [he] had voluntarily informed the Admissions
Office of multiple vulnerabilities in their systems.’
” Id., ¶ 63. However, plaintiff acknowledges that
the similarity is not in the expression, but instead in the
underlying “idea” or “plot element,” neither of which is
protected by copyright. Id.; Johnson, 409 F.3d at 19
(“copyright law . . . does not safeguard either the ideas
themselves or banal expressions of them”); Franklin v.
Ciroli, 865 F. Supp. 947, 950 (D. Mass. 1994) (“courts
have recognized that a copyright will not protect plots,
subplots or themes”).
*28 Thus, plaintiff fails to allege sufficient facts showing
either probative similarity or substantial similarity
between The Social Network and his book. The district
court properly dismissed his infringement claims arising
out of the Film.
D. The District Court Properly Dismissed The Defamation
Claims
1. The Statements in the Book About Which Plaintiff
Complains Are, As A Matter Of Law, Not Capable
Of Defamatory Meaning And/Or Are Protected
Opinion
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
The elements of a defamation claim are (1) a false statement
(2) of and concerning the plaintiff which is (3)
capable of damaging plaintiff's reputation, and (4)
which caused economic loss or is actionable without
such loss. Damon v. Moore, 520 F.3d 98, 103 (1st Cir.
2008). Words are defamatory if they “hold the plaintiff
up to scorn, hatred, ridicule or contempt, in the minds of
any considerable and respectable segment in the community.”
Id. The court decides the “threshold question”
of whether, as a matter of law, the “communication is
reasonably susceptible of defamatory meaning.” Id. A
communication “can only be ruled defamatory if it
would lead ‘a reasonable reader’ to conclude that it conveyed
a defamatory meaning.” Id. at 103-04.
Plaintiff's defamation claims against the Book are of
two types: that certain statements defamed him, and that
the “selective omission of Aaron Greenspan's role” in
the founding of Facebook has defamed him. As to the
former, although he largely fails to address them in his
brief, in his Complaint plaintiff alleges that the *29
Book refers to him using the wrong name, calls him a
“kid,” and observes that “hardly any one paid attention”
to his website, which was not “particularly slick.”
[FN14]
FN14. The references to plaintiff are found at
pages 80, 84, 96 and 115 of the Book.
a. References To Plaintiff By The Wrong Last Name
Are Not Capable of Defamatory Meaning
Plaintiff cannot base a defamation claim on the inadvertent
reference to him in the hardcover edition of The
Accidental Billionaires as “Grossman.” [FN15] Grossman
is simply a different, albeit inaccurate, surname,
and plaintiff offers no cogent explanation why mistakenly
referring to him with this particular name holds
him up “to scorn, hatred, ridicule or contempt.”
FN15. These typos were corrected in the paperback
edition of the Book.
b. Referring To Plaintiff As “Kid” Is Not Defamatory
Plaintiff alleges that referring to him as “that Aaron

2012 WL 2989930 (C.A.1) Page 16
Greenspan kid” and “some kid named Aaron Greenspan”
defames him. See A24, ¶ 47. However, as the district
court correctly found, the term “kid” refers to a
“young person” and is not disparaging. AOB Add. 1 at
33; Damon, 520 F.3d at 105 (“words are to be read in
their natural sense”). This is particularly true in the context
of a book that uses the term to describe all of the
main characters, as well as the entire student bodies of
both Harvard and Stanford, and colleges in general.
[FN16]
FN16. See, e.g., Book at 4 (referring to Saverin
as “kid”); at 137 (Parker as “skinny kid”); at 68
(Winklevosses as “kids like that”); at 31
(“Harvard kids”); at 79 (“kids at Harvard”); at
84 (referring to “kids all over campus” in the
same paragraph as reference to Plaintiff); at
133 (“Stanford kids”); at 140 (“college kids”).
*30 c. The Statements That “Hardly Anyone Paid
Attention” To Plaintiff's Web Site And That His
Website “Wasn't Particularly Slick” Are Not Capable
Of Defamatory Meaning, And Are Protected
Expressions Of Opinion In Any Case
Plaintiff alleges that the statements “hardly anyone paid
attention to” plaintiff's Universal House Facebook website
“as far as Eduardo knew” and the website “wasn't
particularly slick” mean that his work was “irrelevant
and of poor quality.” See A36, ¶ 107. However, whether
any one paid attention to his website -- whatever that
may mean -- is not capable of defamatory meaning, as it
does not tend to hold plaintiff up to “scorn, hatred, ridicule
or contempt.” Likewise, remarking that the website
is not “particularly slick” could not subject plaintiff
to hatred, scorn, or ridicule.
Moreover, the statements are clearly expressions of
opinion and cannot support a defamation claim for that
independent reason. See Cole v. Westinghouse Broadcasting
Co., 386 Mass. 303, 312, 435 N.E.2d 1021
(1982) (“[a]n assertion that cannot be proved false cannot
be held libelous”). The statement that “hardly anyone”
is “paying attention” to plaintiff's website is too
amorphous and imprecise to be defamatory. Whether
people are “paying attention” to a particular website and
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
what constitutes “hardly anyone” are subjective, and
cannot be proved true or *31 false. In addition, the
statement concludes with the qualifier, “as far as
Eduardo knew,” further demonstrating that it is an expression
of opinion. See Lyons v. Globe Newspaper Co.,
415 Mass. 258, 263, 612 N.E.2d 1158 (1993) (use of
qualifier “suspicion” in newspaper article “plainly cautioned
the reader that the article referred to a theory
rather than to facts”); Yohe v. Nugent, 321 F.3d 35, 41
(1st Cir. 2003) (qualified language demonstrated statement
at issue was opinion). Similarly, the adjective
“slick” means different things to different people, and
even if it had a uniform meaning, the question of whether
a particular website was “slick” is necessarily a subjective
one. See McCabe v. Rattiner, 814 F.2d 839, 842
(1st Cir. 1987) (holding that description of condominium
sales business as a “scam” was non-actionable opinion
because the word “scam,” “means different things to
different people”). Its meaning is “imprecise and open
to speculation [and it] cannot be proved false.” Cole,
386 Mass. at 312. Thus, plaintiff cannot state a claim
for defamation as to either of these statements.
2. The Purported “Omission” Of Plaintiff From The
Book And The Film Is Not Capable of Defamatory
Meaning, And Cannot Be “Of And Concerning”
Plaintiff In Any Event
Plaintiff argues that he should be allowed to pursue this
action because, by their omission of his perceived role
in creating Facebook, the Book and the Film “paint a
wholly inaccurate and rather unimpressive picture of
Greenspan.” AOB 44. Initially, plaintiff's theory of liability
is antithetical to the First Amendment, *32 which
does not permit the judicially compelled telling of
plaintiff's story. See e.g. Miami Herald Publishing Co.
v. Tornillo, 418 U.S. 241, 255-58, 261 94 S.Ct. 2831, 41
L.Ed.2d 730 (1974) (the government may not invade
editorial discretion and coerce a newspaper to publish
that which “it chooses to leave on the newsroom floor”).
If allowed to proceed, the chilling effect on free speech
posed by such claims is clear and unacceptable. The
First Amendment simply cannot tolerate a world in
which authors of nonfiction books on the same subject
could take disagreements from the marketplace to the

2012 WL 2989930 (C.A.1) Page 17
courtroom simply by alleging that their competitors'
books are “not true.” Plaintiff's remedy, if he does not
believe he has been painted in a sufficiently impressive
light, is to do exactly what he did when he published
Authoritas -- place his own version of history into the
marketplace of ideas. See generally, Brown v. Hartlage,
456 U.S. 45, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982)
(the “preferred First Amendment remedy” is “more
speech, not enforced silence”). That he has had difficulty
getting others to accept his version of these events
is no excuse for seeking the aid of the courts to help
him to do so.
In any event, as the district court found, the omission of
plaintiff's purported role in Facebook's creation could
not hold plaintiff up to scorn, hatred, ridicule, or contempt,
even if that omission could reasonably be inferred
to suggest plaintiff's irrelevancy to Facebook
(which it cannot). See AOB Add. 1 at 33-34. Thus, the
alleged omissions are not susceptible to defamatory
meaning.
*33 Moreover, the omission claim fails to satisfy the
“of and concerning” element of defamation. For this
reason, plaintiff complains that Massachusett's law is
lacking “in that it does not directly address situations
involving material omissions of fact that can have realworld
impact.” AOB 38. But by definition, if a statement
is not “of and concerning” plaintiff, it can have no
impact on him.
To satisfy the “of and concerning” requirement:
[T]he plaintiff must prove either that the defendant intended
its words to refer to the plaintiff and that they
were so understood, or that the defendant's words reasonably
could be interpreted to refer to the plaintiff and
that the defendant was negligent in publishing them in
such a way that they could be so understood. New England
Tractor-Trailer Training of Conn., Inc. v. Globe
Newspaper Co., 395 Mass. 471, 483, 380 N.E.2d 1005
(1985) (emphasis added). [FN17]
FN17. Neither New England Tractor Trailer,
395 Mass. 471, nor Sharratt v. Housing Innovations,
Inc., 310 N.E.2d 343 (1974) assist
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
plaintiff as he asserts. AOB 39-40. The court in
New England observed “[i]t is a fundamental
principle of the law of defamation that a
plaintiff must show, inter alia, that the allegedly
defamatory words published by a defendant
were of and concerning the plaintiff.”
Id. at 474 (emphasis added). In Sharratt, the
court held that attendant circumstances may be
used to demonstrate that facially-innocent
words are capable of defamatory meaning,
finding that “[t]he facts pleaded tended to
show” that the statements at issue could “be
understood as referring to the plaintiff.” Id. at
145-46 (emphasis added) (internal quotation
marks omitted). Sharratt did not address the
“of and concerning” element of a defamation
claim.
Here, plaintiff alleges neither. Indeed, the gravamen of
the claim is that plaintiff was defamed because the
Book fails to refer to him in the manner hedesired. See
A25, ¶ 50. Such a claim turns on its head the requirement
that a defamatory statement be “of and concerning”
the plaintiff.
*34 In other cases concerning statements that do not
refer to the plaintiff, either explicitly or implicitly,
courts have found that the “of and concerning” requirement
cannot be satisfied as a matter of law. In Mc-
Namee v. Jenkins, the plaintiff police officer sued a fellow
officer for defamation, arguing that a police report
she filed that contradicted his own report regarding the
same incident implicitly accused him of filing a false report.
52 Mass. App. Ct. 503, 507, 754 N.E.2d 740
(2001). The court rejected this argument, noting that the
defendant's report did not assert that the plaintiff's report
was false, or refer to it in any way. The court held
that, as a result, “the statements made by [the defendant]
that conflict with the plaintiff's statements are not
of and concerning the plaintiff, but are about her observations
of” the incident described in the report. Id. The
statements did not “tend to injure the plaintiff's reputation
or discredit him.” Id. at 508. Similarly, in Driscoll
v. Bd. of Trustees of Milton Academy, the court held that
a letter sent by a school principal to parents regarding a

2012 WL 2989930 (C.A.1) Page 18
series of disciplinary incidents was not “of and concerning”
a student involved in only one of the incidents. 70
Mass. App. Ct. 285, 298-99, 873 N.E.2d 1177 (2007).
Because the letter neither mentioned the student by
name nor implied his involvement, none of its statements
were actionable. Id.; see also Blatty v. New York
Times, 42 Cal.3d 1033, 1046, 728 P.2d 1177 (1986)
(sustaining demurrer to plaintiff's cause of action based
on the *35 defendant's omission of his novel from its
best seller list because plaintiff could not satisfy the “of
and concerning” requirement).
As in those cases, omission cannot give rise to defamation
here because there is nothing implicitly said “of
and concerning” plaintiff. In fact, this case presents an
even more extreme example than McNamee, as plaintiff
does not even contend that The Accidental Billionaires
or the Film refer to him by implication. He expressly
concedes that the Film makes no reference to him, express
or implicit. A11, ¶ 9; A28, ¶ 66. As to the Book,
he suggests that the omissions themselves defamed him,
by “completely withholding proper recognition that was
instead attributed to other characters, and in particular,
Mr. Zuckerberg.” A25, ¶ 50. However, the omission is
not “of and concerning” plaintiff. See New England
Tractor Trailer, 395 Mass. at 483; McNamee, 52 Mass.
App. Ct. at 507-08. Accordingly, the district court properly
dismissed plaintiff's claims.
E. Plaintiff's Defamation Claim Based On The
November 6, 2011 C-Span Interview Fails
The Complaint does not identify a single specific defamatory
statement made by Mezrich during the C-Span
interview, and instead generally avers that Mezrich defamed
him by continuing to defend his book as “true,”
“accurate,” and “nonfiction” and by allegedly attributing
to plaintiff “false motives” for criticizing Mezrich's
book. A29, ¶ 74; A36, ¶ 111. However, Mezrich made
no statements in the interview “of and concerning”
plaintiff that are capable of defamatory *36 meaning.
As to Mezrich's defense of the Book, nothing about his
defense is either explicitly or implicitly about plaintiff
and cannot support a defamation claim.
Given plaintiff's allegation that Mezrich attributed
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
“false motives” to plaintiff, plaintiff appears to suggest
that the following statement is defamatory: “It's a person
who has a personal beef--with Zuckerberg or with
Facebook, and they're bringing it out in the way they
can in this conversation. It really has very little to do
with my book.” To the extent the statement could be
construed as referring to plaintiff, there is nothing defamatory
about the suggestion that he has a conflict
with Zuckerberg and Facebook, Inc. regarding the origins
of the website (which is demonstrably true as evidenced
by his own book, Authoritas), and on that basis
objects to The Accidental Billionaires and the Film.
Plaintiff takes the district court to task for not addressing
any other statements in the interview. AOB 43-44.
But no other statement regarding the “false motives” of
Mezrich's critics is even arguably “of and concerning”
plaintiff. In his brief, plaintiff singles out Mezrich's
musings about the meaning of nonfiction and fiction,
and that characters who do not want their stories told
would benefit from the label “fiction.” AOB 44.
Plaintiff twists this into a statement that he has
something to hide. This is nonsense. The statement is
not “of and concerning” plaintiff and in no way implies
that anyone has something to hide.
*37 Moreover, the statement is an expression of
Mezrich's opinion and is therefore not actionable. See
Yohe, 321 F.3d at 41; Cole, 386 Mass. at 312 (“An assertion
that cannot be proved false cannot be held libelous”).
Thus, plaintiff does not state a claim for defamation
arising out of the C-Span interview.
F. The District Court Properly Dismissed Plaintiff's
Unfair Competition And False Advertising Claims
In his fourth claim, plaintiff alleges that defendants
falsely advertised and engaged in unfair competition in
the marketing of The Accidental Billionaires. They allegedly
did so by labeling the Book “nonfiction,” by
buying favorable on-line reviews and by bulk sales of
the Book intended to boost the Book on to the bestsellers
list. A34, ¶ 96 With respect to the “nonfiction”
label, plaintiff argues that The Accidental Billionaires
contains numerous errors, most notably a failure to accurately
describe plaintiff's “work on designing and pro-

2012 WL 2989930 (C.A.1) Page 19
gramming the original version of The Facebook.”
Therefore, plaintiff sold “significantly” fewer copies of
Authoritas than he otherwise would have. AOB 34. As
to the allegedly paid reviews (he does not mention bulk
sales), plaintiff argues that “[b]asic phenomena such as
word-of-mouth referrals are implicitly understood by
the vast majority of individuals to guide purchasing
habits” and that the district court erred by “disregarding
the relevant portions of [plaintiff's] pleading.” AOB
36-37.
As the district court correctly set forth, the elements of
a Lanham Act false advertising claims are as follows:
*38 To prove a false advertising claim under the Lanham
Act, a plaintiff must demonstrate that (1) the defendant
made a false or misleading description of fact or
representation of fact in a commercial advertisement
about his own or another's product; (2) the misrepresentation
is material, in that it is likely to influence the
purchasing decision; (3) the misrepresentation actually
deceives or has the tendency to deceive a substantial
segment of its audience; (4) the defendant placed the
false or misleading statement in interstate commerce;
and (5) the plaintiff has been or is likely to be injured as
a result of the misrepresentation, either by direct diversion
of sales or by a lessoning of goodwill associated
with its products.
Cashmere & Camel Hair Mfrs. Institute v. Saks Fifth
Ave., 284 F.3d 302, 310-11 (1st Cir.), cert. denied, 537
U.S. 1001 (2002).
To state an unfair competition claim under the Lanham
Act, a plaintiff must allege “a false or misleading statement
of fact in commercial advertising or promotion
about the Plaintiff's goods or services” and “facts supporting
bad faith.” Applera Corp. v. Michigan Diagnostics,
LLC, 594 F.Supp.2d 150, 163 (D. Mass.
2009), citing Zenith Elecs. Corp. v. Exzec, Inc., 182
F.3d 1340, 1353 (Fed. Cir. 1999). The district court correctly
concluded that the Complaint did not plead facts
sufficient to support a plausible claim of either false advertising
or unfair competition under the Lanham Act.
Plaintiff's argument over the source of the district
court's definition of “nonfiction” is besides the point.
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
The court's definition, “that the literature is based on
true stories and events” fits comfortably within
plaintiff's alternative definitions: “the branch of literature
comprising works of narrative prose dealing with or
offering opinions or conjectures upon facts and reality”
and “writing *39 dealing with facts and events rather
than imaginative narration.” There is no meaningful distinction
between literature based on true stories and
events and literature dealing with true stories and
events. Moreover, as one of plaintiff's preferred definitions
confirms, nonfiction is the broadest category of
literature, literally including anything that is not fiction.
Mezrich's own description of his book in his “Author's
Note” also fits comfortably within any of these definitions:
The Accidental Billionaires is a dramatic, narrative account
based on dozens of interviews, hundreds of
sources, and thousands of pages of documents, including
records from several court proceedings.
There are a number of different -- and often contentious
-- opinions about some of the events that took place.
Trying to paint a scene from the memories of dozens of
sources -- some direct witnesses, some indirect--can often
lead to discrepancies. I recreated the scenes in the
book based on the information I uncovered from the
documents and interviews, and my best judgment as to
what version most closely fits the documentary record.
Other scenes are written in a way that describes individual
perceptions without endorsing them.
I have tried to keep the chronology as close to exact as
possible. In some instances, details of settings and descriptions
have been changed or imagined, and identifying
details of certain people altered to protect their privacy.
Other than the handful of public figures who populate
this story, names and personal descriptions have
been altered.
I do employ the technique of re-created dialogue. I have
based this dialogue on the recollection of participants of
the substance of conversations. Some of the conversations
recounted in this book took place over long periods
of time, in multiple locations, and thus some conversations
and scenes were re-created and compressed.
Rather *40 than spread these conversations out, I sometimes
set these scenes in likely settings.

2012 WL 2989930 (C.A.1) Page 20
In any event, the district court was absolutely correct
when it observed that plaintiff “essentially only alleges
that [the Book] is not based on the plaintiff's version of
the facts. Two books may both be designated as nonfiction
even though they have contrasting accounts of the
same events.” AOB Add. 1 at 28 n.9. Plaintiff's lament
that his role in the story has not been properly told, even
when combined with his list of discrete errors, does not
serve to turn The Accidental Billionaires into fiction.
Regardless of the source of the district court's definition
of “nonfiction,” then, its holding on this point is sensible
and correct. Plaintiff has not alleged facts to support
a plausible Lanham Act false advertising claim.
Moreover, inasmuch as the claimed “misleading statements”
and “misrepresentations” in labeling the Book
nonfiction concern “[d]efendants' representations of
plaintiff, and/or the lack thereof” they simply rehash his
defamation by omission claim and are deficient for the
same reasons. A34, ¶ 98; McNamee, 52 Mass. App. Ct.
at 507. Plaintiff cannot circumvent the “of and concerning”
requirement by slapping a “Lanham Act” label on
the claim.
Turning to the consumer reviews and bulk sales, the district
court correctly concluded “there is no assertion that
the purported misrepresentations made by defendants,
i.e. buying ‘five-star’ reviews and boosting sales numbers,
influenced, or would likely influence, consumer
purchasing decisions,” and that “there are no *41 facts
alleged that the defendants' misrepresentations harmed
the plaintiff's business by causing the loss of sales or
goodwill associated with its products.” AOB Add. 1 at
28-29. Plaintiff's naked allegations do not pass muster.
Iqbal, 129 S.Ct. at 1949 (naked allegations without further
factual enhancement do not state a claim). In any
event, the consumer reviews are not “commercial advertisements,”
an essential element of a Lanham Act
claim. Cashmere, 284 F.3d at 310.
As to damages, plaintiff concedes that it is “impossible
to know how many more books [he] would have sold, or
how many more business opportunities might have been
presented (or not rejected), had he been represented appropriately
and accurately in The Accidental Billionaires.”
AOB 33. Plaintiff then cites another out of cir-
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
cuit case, Johnson & Johnson v. Carter-Wallace, Inc.,
631 F.2d 186, 191 (2d Cir. 1980), to support his claim
that it was “reasonable and incumbent upon the lower
court to infer that Greenspan's book would have sold
(significantly) more copies had his work on designing
and programming the original version of The Facebook
been described accurately.” AOB 34. Johnson & Johnson
does not support plaintiff's argument, and, in fact,
demonstrates that his Lanham Act claim is deficient.
Johnson & Johnson specifically held that “injury and
causation will not be presumed, but must be demonstrated.”
631 F.2d at 190. To do so requires facts showing
that the plaintiff and the defendant “are competitors
in a relevant market.” The Complaint included no such
facts. Moreover, plaintiff was also *42 required to
“show a logical causal connection between the alleged
false advertising and its own sales position.” Id. No
facts alleging such a “logical causal connection” appear
in the Complaint, which states only that “[p]laintiff has
suffered damages” as a result of defendants' conduct.
[FN18] See A34-35, ¶¶ 96-103.
FN18. Indeed, plaintiff even fails to show such
a logical connection in his opening brief, which
connects his purported (but impossible to calculate)
damages not to any false advertising,
but instead to the Book's alleged misrepresentation
of plaintiff and his work. See AOB 33-34
(impossible to know how many more books
plaintiff would have sold “had he been represented
appropriately and accurately” in the
Book; the District Court should have inferred
that Authoritas would have sold more copies
“had [plaintiff's] work on designing and programming
the original version of The Facebook
been described accurately”). Plaintiff's argument
demonstrates that his disagreement is not
with any purported unfair competition by Random
House or Mezrich, but instead with their
failure to portray plaintiff in the way he would
prefer.
G. The District Court Correctly Concluded It Would
Be Futile To Allow Plaintiff To Amend His Complaint

2012 WL 2989930 (C.A.1) Page 21
While the motions to dismiss were under advisement,
plaintiff sought leave to file the FAC. The proposed
amendments consist largely of argument and a few new
“fact” allegations, none of which adds anything to
plaintiff's old claims or adequately supports his new
ones. To the contrary, with his FAC plaintiff moves
well outside the boundaries of plausibility, alleging
among other things that:
• Mezrich's request that plaintiff act as a source for The
Accidental Billionaires amounted to an implicit, extortionate
threat (A143, ¶ 42);
• Defendants' marketing, distribution, and sales of the
Book and the Film constituted mail and wire fraud
(A176, ¶ 153);
*43 • Collectively, defendants constitute a criminal enterprise
under the Racketeer Influenced and Corrupt Organizations
Act (“RICO”) (A174; ¶ 148);
• Simon & Schuster, Inc., which has absolutely no connection
to the events at issue in this matter, is a coconspirator
in the criminal enterprise by virtue of having
published an earlier book by Mezrich (A136; ¶ 23);
• A Random House lawyer participated in a scheme to
defraud plaintiff by allowing Random House to market
The Accidental Billionaires as non-fiction (id.); and
• Tonya Mezrich, defendant Mezrich's wife, committed
copyright infringement, defamation, fraud, violated the
Lanham Act, was unjustly enriched, and is a member of
a criminal enterprise engaged in a pattern of racketeering
activity, all because she posted a consumer review
on Amazon.com praising her husband's book (A174; ¶
148).
These frivolous contentions cannot be allowed to prolong
this case, and the Court should affirm the district
court's order denying leave to amend.
1. Leave To Amend A Pleading Need Not Be Granted
Where, As Here, The Amendment Would be Futile
Leave to amend should be “freely given when justice so
requires.” Fed. R. Civ. P. 15(a). However, when amendment
would be futile, leave should not be granted. Ardorno
v. Crowley Towing and Transportation Co., 443
F.3d 122, 126 (1st Cir. 2006). “In assessing futility, the
district court must apply the standard which applies to
motions to dismiss under Fed. R. Civ. P. 12(b)(6).” Id.
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
Thus, *44 leave to amend should be denied where the
plaintiff does not allege “enough facts to state a claim to
relief that is plausible on its face.” Twombly, 550 U.S.
at 570.
2. Plaintiff Adds No Additional Facts To His Claims
For Copyright Infringement
Plaintiff alleges no additional facts in support of his
copyright claims, and instead adds only the phrase
“Total Feel and Experience” to his list of purported similarities.
A145-149, ¶ 54. This does nothing to save
these claims, and allowing the amendment would be futile.
3. Plaintiff Fails To Allege Any Additional Facts
That Rescue His Doomed Lanham Act Claim
The only new allegations plaintiff adds to his flawed
Lanham Act claim are: (1) additional instances of consumer
reviews on Amazon.com purportedly written by
“partners, employees, contractors, and/or affiliates” of
the defendants, A164-167; and (2) a statement that he is
a competitor of Random House and Mezrich because he
wrote and self-published his life story. However, a
claim for false advertising under 15 U.S.C. § 1125(a)
requires allegations that “the defendant made a false or
misleading description of fact or representation of fact
in a commercial advertisement [and that] the misrepresentation
is material, in that it is likely to influence the
purchasing decision.” Cashmere, 284 F.3d at 310-311.
First, nowhere does plaintiff allege that these consumer
reviews contain false or misleading descriptions or representations
of fact; he merely alleges that the *45 reviewers
failed to disclose their purported connections to
the defendants. Second, the reviews are not
“commercial advertisement[s],” they are simply consumer
reviews on Amazon.com. [FN19] And third,
plaintiff does not (and cannot), allege that any purported
misrepresentations are likely to make a difference to
purchasers.
FN19. The FAC improperly attempts to bootstrap
a purported violation of FTC advertising
guidelines into a Lanham Act claim. However,
the penalty for such a violation is an action by

2012 WL 2989930 (C.A.1) Page 22
the FTC under the FTC Act, which provides no
private right of action. See Federal Trade Commission
v. Klesner, 280 U.S. 19, 25, 50 S.Ct. 1,
74 L.Ed. 138 (1929). Plaintiff cannot use the
Lanham Act as a proxy in order to avoid this
rule, nor can he avoid properly alleging the elements
of a Lanham Act claim simply by invoking
the FTC guidelines.
Moreover, plaintiff still fails to allege the competitive
injury required to state a false advertising claim. To do
so, he would have to allege facts showing that he “has
been or is likely to be injured as a result of the misrepresentation
[in the advertisement], either by direct diversion
of sales or by a lessening of goodwill associated
with [his] products.” Cytologix Corp. v. Ventana Medical
Systems, Inc., 2006 WL 2042331, at *5 (D. Mass.
July 20, 2006) (unpublished), citing Cashmere, 284
F.3d at 310-311 (emphasis added). Plaintiff alleges no
such facts, and in his brief, concedes he is unable to do
so, wrongly arguing that the Court must infer them.
AOB 34.
*46 Further, the fact plaintiff self-published his life
story does not make him a competitor to any defendant.
[FN20] Authoritas and The Accidental Billionaires
simply do not compete. While the Book is all about the
founding of Facebook, Authoritas is plaintiff's autobiography
in which his “houseSYSTEM” and his contact
with Zuckerberg are only discussed in the last 40 pages
of the 333-page book. See Authoritas, Chs. 26-30, Epilogue.
Accordingly, nothing in plaintiff's proposed FAC
saves his fatally deficient Lanham Act claim.
FN20. The proposed FAC includes only the unsupported
and conclusory assertions that Think
Press is “a competitor of Defendant Random
House in the same channels of trade involving
book publishing,” and that “Plaintiff himself is
. . . a competitor of Defendant Mezrich in that
both attempted to secure publishing deals from
the same publishers.” A173, ¶ 141. The District
Court correctly rejected these conclusory assertions
as insufficient to support plaintiff's claim.
4. Plaintiff Cannot Allege Facts Supporting A RICO
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
Claim
According to plaintiff, there is a vast criminal conspiracy
arrayed against him made up of Random House,
Inc., Simon & Schuster, Inc., Sony Pictures, Inc., Benjamin
Mezrich, his wife, Tonya, and other coconspirators.
He alleges that, in furtherance of this alleged
conspiracy, Mezrich's email request that he act as
a “knowledgeable source” for the Book amounted to
criminal extortion -- a threat against “[p]laintiff's business,
financial condition and reputation.” A176, ¶ 152.
He further alleges that defendants committed mail and
wire fraud by distributing their works, by posting consumer
reviews on Amazon.com, by transferring the *47
proceeds from the sale of their works, and by filing
court papers in this case. Id., ¶ 153. None of the alleged
conduct constitutes a criminal offense, as required by
the RICO statute. See 18 U.S.C. § 1961(1). Moreover,
each of these contentions is frivolous on its face, and
plaintiff utterly fails to allege any cognizable claim, let
alone facts that meet the heightened pleading requirement
for RICO claims. See Bessette v. Avco Financial
Services, Inc., 230 F.3d 439, 449-450 (1st Cir. 2000).
For example, plaintiff alleges the conspirators committed
mail and wire fraud, evidently by shipping or mailing
the Book and Film in interstate commerce and by
writing reviews on-line. Those benign activities amount
to racketeering activity, according to plaintiff, because
the items transmitted, mailed, or posted on-line are not
true. Thus, the FAC comes full circle to the gravamen
of plaintiff's case -- alleged torts and now crimes committed
against him because defendants have not properly
acknowledged his contributions to the founding of
Facebook. Never mind that plaintiff has failed to meet
the technical requirements of pleading a RICO claim, he
has not pled a single fact that could give rise to any
claim whatsoever. [FN21] For these reasons, the district
court appropriately concluded it *48 would be futile to
allow plaintiff to bring his RICO claim. AOB Addendum
2 (“Add. 2”) at 4-5.
FN21. In particular, allegations of fraud as a
RICO predicate offense must satisfy the
heightened pleading standard for fraud. See
Fed. R. Civ. P. 9(b). Plaintiff's FAC contains

2012 WL 2989930 (C.A.1) Page 23
only general allegations, and fails to specifically
allege even a single act of fraud. See A176,
¶ 153. Moreover, plaintiff “fails utterly to
identify any recipient” of any of the purported
uses of the mail and/or wires. In re Compact
Disc, 456 F.Supp.2d 131, 151 (D. Me. 2006).
Plaintiff also fails to sufficiently allege injury,
as he does not suggest that he was defrauded,
and instead merely generally asserts that he has
been injured. A178, ¶ 156. Finally, plaintiff
does not allege facts making out either fraudulent
intent or a “scheme or artifice to defraud” -
- alleging neither who defendants sought to defraud,
nor of what defendants sought to deprive
them.
5. Allowing Plaintiff To Amend His Defamation
Claims Would Be Futile
a. Plaintiff Alleges No New Facts That Save His Explicit
Defamation Claim
Plaintiff offers no new facts to salvage his defamation
claims based on references to him by incorrect names,
references to his website not being “particularly slick,”
and the C-Span interview. Instead, plaintiff merely adds
argument to his pleading. As to references to plaintiff as
“kid,” plaintiff argues that Mezrich “uses [kid] in a general
sense for those characters he favors, such as Mark
Zuckerberg, and directly next to the names of those
characters on whom he wishes to cast aspersions.”
A150, ¶ 60. First, plaintiff's predicate is false -- the
book refers to Zuckerberg in the exact same manner on
multiple occasions, and in even less flattering terms
elsewhere. See Book at 63, 71 (referring to “this Zuckerberg
kid”); 10 (“awkward kid”); 21 (“geeky kid[]”);
90 (“geeky kid”); 131 (“damn kid”). Second, plaintiff
still fails to include facts showing that referring to *49 a
college age student as a “kid” would cause others to
view him with “scorn, hatred, ridicule or contempt.”
Damon, 520 F.3d at 103.
As for the statement that plaintiff “had gotten in
trouble” for making a website that used students'
“Harvard emails and IDs as passwords,” in Authoritas
plaintiff describes at length how Harvard repeatedly
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
threatened him with disciplinary action over his website's
use of students' university email passwords. See
Authoritas at 2; 240; 247; 254-55. True statements cannot
form the basis of a defamation claim. In any event,
the statement, even if false, it is not capable of holding
plaintiff up to “scorn, hatred, ridicule or contempt.”
b. Plaintiff's Proposed Amended Claim For Defamation
By Omission Does Not Satisfy The “Of And
Concerning” Standard For Defamation
The FAC does not include any new facts satisfying the
“of and concerning” requirement. Despite his insistence
that some individuals he knows expected him to have a
larger role in the Book and the Film, A161, ¶ 97, he
cannot satisfy the standard for “of and concerning” under
Massachusetts law. Plaintiff cites to no words that
refer to him in either the Book or the Film to support his
purported “defamation by omission” claim. He relies
solely on the fact that defendants marketed their works
as true. However, this cannot be interpreted as an intended
reference to plaintiff, and therefore, by definition,
cannot satisfy the “of and concerning” requirement. It
would be futile to allow plaintiff to amend this claim.
*50 6. Plaintiff Cannot Make Out A Claim For Unjust
Enrichment
As the district court held, to the extent plaintiff's unjust
enrichment claim is based on the same facts as
plaintiff's copyright infringement claim, see A180, ¶¶
169, 171, it is preempted by federal law and cannot survive.
See Dunn v. Brown, 2011 WL 4499007 at *6 (D.
Mass. Aug. 16, 2011) (unpublished); John G. Danielson,
Inc. v. Winchester-Conant Properties, Inc., 322
F.3d 26, 44 (1st Cir. 2003) (“Federal copyright law
preempts rights under state law when they are equivalent
to those granted under the Copyright Act”). Second,
the allegations do not satisfy the elements of the claim:
“(1) a benefit conferred upon the defendant by the
plaintiff; (2) an appreciation or knowledge of the benefit
by the defendant; and (3) an acceptance or retention
of the benefit by the defendant under circumstances
which make such acceptance or retention inequitable.”
Mass. Eye & Ear Infirmary v. QLT Phototherapeutics,
Inc., 552 F.3d 47, 57 (1st Cir. 2009). Plaintiff has pled

2012 WL 2989930 (C.A.1) Page 24
no facts showing that he lost any book sales as a result
of defendants' actions (indeed, he suggests the district
court should have “infer[red]” such losses). What is
more, none of the facts pled, nor plaintiff's arguments
here, show that plaintiff conferred a benefit on defendants,
as is required for an unjust enrichment claim to
proceed. Frappier v. Countrywide Home Loans, Inc.,
645 F.3d 51, 58 (1st Cir. 2011).
*51 7. Plaintiff Cannot Allege Facts Stating A Claim
For Fraud
Plaintiff alleges that the following conduct constitutes
fraud: classifying, referring to, and marketing The Accidental
Billionaires as nonfiction and “true,” referring to
the Film as “true,” and purportedly misrepresenting certain
facts in “pleadings and representations before this
Court.” A181, ¶ 173.
However, to plead fraud plaintiff must allege that “[1]
the defendant made a false representation of material
fact [2] with knowledge of its falsity [3] for the purpose
of inducing the plaintiff to act thereon, and [4] that the
plaintiff reasonably relied upon the representation as
true and [5] acted upon it to his damage.” Taylor v.
American Chemistry Council, 576 F.3d 16, 31 (1st Cir.
2009) (internal quotation marks omitted). Nowhere in
his FAC does plaintiff allege that any of defendants'
purported misrepresentations were made for the purpose
of inducing him to act. Nor does plaintiff allege that he
reasonably relied on defendants' statements as true and
acted upon them to his damage. It would be fundamentally
inconsistent for him to do so, of course, since he alleges
that he supposedly knew from the outset that he
could not expect to be fairly represented in The Accidental
Billionaires. See A141-42, ¶¶ 36-38. Under
plaintiff's own theory, he has been damaged not by his
actions in reliance of defendants' statements, but rather
by the *52 beliefs formed by third persons as a result of
reading the Book or seeing the Film. See A163-64, ¶
103. [FN22] This does not make out a claim for fraud.
FN22. Plaintiff also fails to satisfy the technical
and heightened pleading standards of Federal
Rule of Civil Procedure 9(b), which requires
“specification of the time, place and content of
an alleged false representation.” Hayduk v.
Lanna, 775 F.2d 441, 444 (1st Cir. 1985)
(internal quotation marks omitted).
V. CONCLUSION
Especially in cases involving the exercise of First
Amendment rights, and the attendant chilling effect litigation
invariably has, swift termination of meritless
claims is particularly important. See generally, Dombrowski
v. Pfister, 380 U.S. 479, 487, 85 S.Ct. 1116, 14
L.Ed.2d 22 (1965); Sipple v. Chronicle Publishing Co.,
154 Cal.App.3d 1040, 1046, 201 Cal. Rptr. 665 (1984).
There is no mystery as to what plaintiff would attempt
to allege if given the opportunity, and those allegations
as set forth in the FAC only serve to prove that he has
no claim against any of the defendants. To allow
plaintiff to amend would be a futile act, because
plaintiff does not and cannot allege “enough facts to
state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. 544. The district court properly
granted the motion to dismiss and properly exercised its
discretion to deny leave to amend. This Court should affirm.
Aaron GREENSPAN, Plaintiff-Appellant, v. RANDOM
HOUSE, INC., Mezco, Inc., Benjamin Mezrich, a/k/a
Benjamin Mezrick, Columbia Pictures Industries, Inc.,
a/k/a Sony Pictures, a/k/a Columbia Tristar Motion Picture
Group, Defendants-Appellees.
2012 WL 2989930 (C.A.1 ) (Appellate Brief )
END OF DOCUMENT
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