Filed under: Copyright, Litigation, Patents, Trademarks | 25 January, 2011 | by Chris Lightner

The Social Network: an IP Litigator’s Review of the Movie about Facebook

By David M. Lilenfeld of Lilenfeld PC

“If you guys were the inventors of Facebook, you’d have invented Facebook.”  So says Mark Zuckerberg, the founder of Facebook, in defending himself against claims that he stole the concept for Facebook from Harvard classmates.

Despite its simplicity, there is some logic behind Zuckerberg’s comment.  Indeed, the classmates who accuse him of stealing their idea did not start Facebook, they started a site called HarvardConnection.  But importantly, his retort does not answer the key accusation, which is whether he created Facebook from proprietary information entrusted to him as a software developer for HarvardConnection.  While The Social Network tried to be balanced, I did leave the theater believing that without exposure to HarvardConnection, Zuckerberg would not have started Facebook.

The Social Network tells the story of the creation and explosive growth of this social media behemoth.  Those with personal knowledge of events surrounding the creation Facebook differ in their views as whether the movie is fact or fiction.  Either way, the movie is stellar.

Many of the scenes in The Social Network take place in two law firm conference rooms.  Questions from lawyers prompt the “deponent” – one of the five key players in the saga – to tell the next part of the captivating tale.  The testimony then walks the audience to the next scene, typically a flashback to an event occurring around Harvard’s campus.

The deposition testimony is being given in two separate lawsuits against Zuckerberg.  One suit was brought by Tyler and Cameron Winklevoss, mirror-image twins who were classmates of Zuckerberg’s at Harvard (and U.S. Olympic rowers).  (Zuckerberg refers to them collectively as the “Winklevi.”).  Along with their business partner, Divya Narendra, the twins allege Zuckerberg misappropriated trade secrets, breached an oral contract and copied their software code.  The second lawsuit was filed by Zuckerberg’s business partner, Eduardo Saverin, a friend of Zuckerberg’s and fellow Harvard undergrad who Zuckerberg enlisted to handle Facebook’s finances and provide seed money.  In his suit, Saverin claims that once Facebook’s explosive growth began he was jettisoned from the company and his shares diluted from 34% to 3%.

Along with Narendra, the Winklevosses start an Internet business they called HarvardConnection.  They describe HarvardConnection to Zuckerberg as a place to “create your own page, picture, bio, interests, friends.  People can see your bio and request to be your friend.”  They hire Zuckerberg to finishing writing software code started by other developers.

In the next scene the battle begins to brew as an energized Zuckerberg pulls Saverin out of a Caribbean-themed fraternity party.  He tells Saverin, “I think I’ve come up with something.  I am going to build an online community of friends.  I’m taking the entire social structure of college and putting it online.”  Zuckerberg does not tell Saverin about his discussions with the Winklevosses or about HarvardConnection, although in that context, it seemed like he should have.

Saverin loves the idea and agrees to invest seed money and run the new site’s finances.  Zuckerberg feverishly begins work on TheFacebook while giving the Winklevosses lame excuses why he has not been able to finish the code for HarvardConnection.  TheFacebook’s meteoric rise then begins, with thousands of users signing-up within the first few hours.  (At the suggestion of Sean Parker, founder of Napster, Zuckerberg drops “The” and calls his site Facebook).

From there paradox takes over.  Zuckerberg and his team are elated as TheFacebook is massively successful while the Winklevoss camp is incensed Zuckerberg stole their idea and scramble for a solution.

Lawyers will not find the deposition scenes realistic.  Witnesses take turns testifying based on who remembers the event the best and lawyers ask questions simultaneously, resembling mediation more than a deposition.  The Social Network made an effort at realism though, as these scenes are peppered with terms like “mark it,” lawyer banter about admissibility of evidence and familiar hushed conversations during breaks in testimony.  Regardless, the scenes are a good vehicle for moving the story along at a quick pace.

While other reviewers left the movie with a negative impression of Zuckerberg, I did not.  The movie portrayed him as a hyper-ambitious entrepreneur and talented developer.  While I felt from the movie that his idea for Facebook came from his exposure to HarvardConnection, the ultimate question – whether he misappropriated trade secrets or breached an agreement with the Winklevi – is left unanswered.

The Social Network is one of the best films I have seen in years.  While the deposition scenes are not realistic, you will find the story wildly intriguing.  The subject matter is fresh and interesting and moves at an impressive pace.  If you are not a Facebook user now, you will be after you see The Social Network.