ROBERT B. COLLINGS, United States Magistrate Judge.
Events anent the creation of Facebook in 2003-2004 and the website's subsequent development have been the subject of a great deal of written commentary, a movie and substantial litigation. This case, filed seven years after Facebook was launched, is perhaps the latest example of this phenomenon.
On November 18, 2011, pro se plaintiff Aaron Greenspan ("Greenspan") filed a five-count complaint seeking damages and injunctive relief against defendants Random House, Inc. ("Random House"), Mezco, Inc. ("Mezco"), Benjamin Mezrich ("Mezrich"), and Columbia Pictures Industries, Inc. a/k/a Sony Pictures a/k/a Columbia Tristar Motion Picture Group (collectively, "Columbia Pictures"). Greenspan,
Mezco
As a result of the defendants' actions, the plaintiff has advanced claims of copyright infringement in violation of the United States Copyright Act, 17 U.S.C. §§ 101 et seq. (Count I, II, III), unfair competition and false advertising in violation of section 42(a) of the Lanham Act, 15 U.S.C. § 1125(a) (Count IV), and a state law claim of defamation (Count V).
Defendants Mezrich, Mezco, and Random House have moved to dismiss with prejudice all counts of the complaint pursuant to Fed.R.Civ.P. 12(b)(6) (# 17), and have filed a memorandum of law (# 18) and an affidavit (# 19) in support of their motion. Defendant Columbia Pictures separately has filed a Rule 12(b)(6) motion (# 22) together with a memorandum of law (# 23) and an affidavit (# 24) in support thereof. The plaintiff has submitted a combined response to the defendants' dispositive motions (# 29) along with a memorandum in law (# 29) and certain exhibits
According to the allegations of the complaint, while an undergraduate at Harvard University in 2003, Greenspan developed an original website called houseSYSTEM with a component website called The Facebook. (# 1 ¶ 23) Thereafter plaintiffs classmate, Mark Zuckerberg ("Zuckerberg"), developed a website, now called Facebook, Inc. ("Facebook"), which incorporated some of Greenspan's ideas. (# 1 ¶ 23) A resounding success after its launch, Zuckerberg's Facebook has hundreds of millions of users worldwide. (# 1 ¶ 24) Greenspan alleges that "Zuckerberg systemically excluded Plaintiff from any recognition for contributions to his success and from the company Plaintiff had indirectly helped create." (# 1 ¶ 25) Moreover, the plaintiffs public opposition to Zuckerberg's failure to address privacy and security problems on
In order to clear the controversy surrounding the origins of Facebook, Greenspan wrote his memoir, Authoritas. (# 1 ¶ 26) An attempt to have Authoritas published by the Doubleday division of Random House was rejected. (# 1 ¶ 28) On June 1, 2008, Greenspan self-published Authoritas; a copyright on the book had been registered in the plaintiffs name with the United States Copyright Office on April 13, 2008. (# 1 ¶ 29)
Google, Inc. ("Google") refused to advertise Authoritas because the subtitle included the word "Facebook," which Google considered to be a trademark. (# 1 ¶ 30) Greenspan responded by petitioning the United States Trademark Office to cancel two of Facebook's registered trademarks for the term FACEBOOK. (# 1 ¶ 30) In May of 2009, Greenspan, his company Think Computer Corporation, Zuckerberg and Facebook reached a confidential settlement. (# 1 ¶ 31)
At the end of July, 2008, defendant Mezrich contacted Greenspan seeking the plaintiffs assistance on a book about the origins of Facebook. (# 1 ¶ 32) The plaintiff declined to help Mezrich, but instead referred him to the website for Authoritas. (# 1 ¶ 33) On July 14, 2009, Random House published the book penned by Mezrich entitled The Accidental Billionaires. (# 1 ¶ 36) Authoritas was listed as a secondary source in The Accidental Billionaires. (# 1 ¶ 38) Columbia Pictures produced the Film based on The Accidental Billionaires and released it on October 1, 2010. (# 1 ¶¶ 55, 61)
All three works, Authoritas, The Accidental Billionaires and the Film, detail certain meetings between Lawrence Summers, former president of Harvard University, and Harvard students. (# 1 ¶ 62) In Authoritas the meeting described involved the plaintiff while in The Accidental Billionaires and the Film, the students involved were Cameron and Tyler Winklevoss. (# 1 ¶ 62)
Further facts shall be added during the course of the discussion as necessary.
A Rule 12(b)(6) motion to dismiss challenges a party's complaint for failing to state a claim. In deciding such a motion, a court must "`accept as true all well-pleaded facts set forth in the complaint and draw all reasonable inferences therefrom in the pleader's favor.'" Haley v. City of Boston, 657 F.3d 39, 46 (1 Cir., 2011) (quoting Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1 Cir., 2011)). "[T]he complaint must `contain sufficient factual matter... to state a claim to relief that is plausible on its face.'" Haley, 657 F.3d at 46 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (further internal quotations and citation omitted) (alteration in original)). When considering a motion to dismiss, a court "may augment these facts and inferences with data points gleaned from documents incorporated into the complaint, matters of public record, and facts susceptible to judicial notice." Haley, 657 F.3d at 46 (citing In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 15 (1 Cir., 2003)).
The first three counts of the complaint, claims for copyright infringement, contributory copyright infringement, and vicarious copyright infringement respectively, shall be addressed in tandem.
To succeed on a claim of copyright infringement Greenspan must show that (1) he had "ownership of a valid copyright," and (2) the defendants copied "constituent elements of the work that are
The motions to dismiss address the second requirement, to wit, whether Greenspan alleges sufficient facts to establish, or from which it could plausibly be inferred, that the defendants copied his original work. This second element of a copyright infringement claim involves a two-step inquiry. Airframe Systems, Inc. v. L-3 Communications Corp., 658 F.3d 100, 105-06 (1 Cir., 2011); Situation Management Systems, Inc. v. ASP. Consulting LLC, 560 F.3d 53, 58 (1 Cir., 2009); Johnson, 409 F.3d at 18. As explained by the First Circuit, in order to establish actionable copying:
Johnson, 409 F.3d at 18 (internal citations and quotation marks omitted); Airframe Systems, 658 F.3d at 105; Situation Management, 560 F.3d at 58.
"In other words, `[n]ot all "factual" copying constitutes legally actionable copyright infringement'; the actual copying must be extensive enough to render the works `substantially similar.'" Airframe Systems, 658 F.3d at 106 (quoting Creations Unlimited, Inc. v. McCain, 112 F.3d 814, 816 (5 Cir., 1997)).
In his complaint, Greenspan focuses on an account of a meeting involving Lawrence Summers ("Summers") in The Accidental Billionaires as being similar to an account of a meeting involving Summers in Authoritas. (# 1 ¶ 39) The plaintiff alleges a number of the similarities between the two accounts including descriptions of the reception area, the receptionist's conduct, Summers' office, Summers' conduct and manner, the appearance and conduct of Summers' assistant, and the response of the students in the meetings. (# 1 ¶ 43) Greenspan also contends that the account of Zuckerberg's statement in an Administrative Board hearing in the Film is similar to an account of his own frustrations in Authoritas. (# 1 ¶ 63) The question is whether the facts alleged in the complaint about these two incidents are sufficient to show or support a plausible inference that the defendants actually copied the plaintiffs work, and that such copying is actionable. See Situation Management, 560 F.3d at 58; Johnson, 409 F.3d at 19.
Greenspan may show actual copying through direct evidence of copying or through circumstantial evidence of (1) the defendants' access to the copyrighted work, and (2) the substantial similarity between the allegedly infringing and copyrighted works. Johnson, 409 F.3d at 18; Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807, 813 (1 Cir., 1995), aff'd, 516 U.S. 233, 116 S.Ct. 804, 133 L.Ed.2d 610 (1996).
The plaintiff has alleged that Authoritas was published in June of 2008 and, therefore, was accessible to the general public. (# 1 ¶ 29) It is further alleged that defendant Mezrich contacted the plaintiff
Probative similarity
Johnson, 409 F.3d at 18-19 (internal citations omitted).
Thus, the similarities between the protected elements in the copyrighted work and the allegedly infringing work must be examined.
Greenspan alleges, inter alia,
Complaint # 1 ¶ 43.
Greenspan also alleges that in the Film, the scene of the Administrative Board hearing in which Zuckerberg states, "As for any charges stemming from the breach of security, I believe I deserve some recognition from this Board" is similar to the account on page 270 of Authoritas where the plaintiff describes his offering of "proof that I had voluntarily informed the Admissions Office of multiple vulnerabilities in their systems." (# 1 ¶ 63)
It must first be determined what aspects of the examples above, if any, deserve copyright protection as the plaintiffs original expressions. See Johnson, 409 F.3d at 19. The determination of whether an element of a copyrighted work is an
None of the expressions in (1) or (2) deserve copyright protection because the phrase "founding of is a cliche expression conveying the origin of something, "Harvard Yard" is the name of a location, and "Veritas" is simply the Latin translation of the word "truth." Similarly, the statement "the president will see you," in (4) does not deserve copyright protection since it is a cliche expression used to convey the idea that an individual is ready for a meeting. Nor are the words "palpable" and "chubby" in (7) protected. Copyright protection does not extend to "`fragmentary words and phrases' and to `forms of expression dictated solely at functional considerations' on the grounds that these materials do not exhibit the minimal level of creativity necessary to warrant copyright protection." CMM Cable Rep, 97 F.3d at 1519 (citations omitted).
"Ideas cannot be copyrighted." Concrete Mach. Co., Inc. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 606 (1 Cir., 1988). Such protection would inhibit subsequent authors from building on or improving upon the ideas conveyed. See Feist, 499 U.S. at 349-50, 111 S.Ct. 1282; see also Matthews v. Freedman, 157 F.3d 25, 27 (1 Cir., 1998) ("[T]he underlying idea ... even if original, cannot be removed from the public realm; but its expression... can be protected."). Facts cannot be copyrighted. Feist, 499 U.S. at 347, 111 S.Ct. 1282. Copyright law provides protection only to the author's original expression of such facts and ideas. Feist, 499 U.S. at 347, 111 S.Ct. 1282; Johnson, 409 F.3d at 19. Therefore, although the idea of sitting in wait for a meeting and the fact that Summers' office is in Massachusetts Hall in (3) are not protected, Greenspan's original expression using the couch and location of the building should enjoy copyright protection. The furniture in Summers' office described in (5) is an unprotected fact; however, the plaintiffs original expression of the facts through his choice to include particular details would enjoy copyright protection.
As to Greenspan's description of Summers' assistant in (6), the fact of her ethnicity is not protected; however, the plaintiffs original expression of the idea of an assistant taking notes should enjoy copyright protection. Regarding the plaintiffs accounts in (8), the fragmented phrases "what do you want me to do?" and "I don't see" are not protected; however, Greenspan's original expression of Summers' unwelcoming manner and inability to see the students' point of view would enjoy copyright protection. The idea of being upset at "the system" in (9) is not protected; however, Greenspan's original expression of such idea should enjoy copyright protection. Finally, the idea of being frustrated at anticipated punishment for exposing security flaws is not protected; however, the plaintiffs original expression of his frustrations should enjoy copyright protection.
Plaintiff must show actionable copying through evidence that the actual copying is "`so extensive that it rendered the infringing and copyrighted works substantially similar.'" Johnson, 409 F.3d at 18 (quoting Segrets, 207 F.3d at 60; Airframe Systems, 658 F.3d at 105). As explained by the First Circuit,
Airframe Systems, 658 F.3d at 106 (internal citations and quotation marks omitted). Put another way, "[t]he inquiry focuses not on every aspect of the copyrighted work, but on those aspects of the plaintiffs work [that] are protectible [sic] under copyright laws and whether whatever copying took place appropriated those [protected] elements." T-Peg, Inc., 459 F.3d at 112 (internal citations and quotation marks omitted). An overall impression of similarity is not enough "[i]f such impression flows from similarities as to elements that are not themselves copyrightable." Johnson, 409 F.3d at 19.
The similarities in (3) and (6) stem from the underlying ideas rather than the expressions of such ideas. The idea of sitting in wait in Massachusetts Hall creates the impression of similarity between The Accidental Billionaires and Authoritas. It cannot be said that comparing the defendants' expression of that idea — conveying the age of the couch and the location of Massachusetts Hall based on its proximity to another building and a statute — with the plaintiffs expression — conveying the feel of the couch, the shape of Massachusetts Hall, and its location in proximity to Johnston Gate — that there was copying so extensive that an ordinary observer could conclude that the defendants unlawfully appropriated the plaintiffs expression. Likewise, the idea of an assistant taking notes and the fact of her ethnicity create the impression of similarity between the two works. However, the defendants' expression of the assistant taking notes of what is said in the meeting compared to the plaintiffs expression of the assistant seeing into his thoughts and emotions does not support a determination that the copying was so extensive that an ordinary observer could conclude that there was unlawful appropriation. So, too, the idea of being frustrated at the possibility
Greenspan and the defendants express the facts of the layout of Summers's office in (5) through their choices to include certain pieces of furniture. However, the use of the desk, shelves, and computer fall within the doctrine of scenes a faire
The substantial similarity inquiry also looks to the extent of copying from the copyrighted work. Situation Management, 560 F.3d at 58. "`If the points of dissimilarity not only exceed the points of similarity, but indicate that the remaining points of similarity are, within the context of plaintiffs work, of minimal importance, either quantitatively or qualitatively, then no infringement results.'" T-Peg, Inc., 459 F.3d at 112-13 (quoting 4 Nimmer & Nimmer, Nimmer on Copyright, § 13.03[B][1][a] (2006)). Although both Greenspan and the defendants use similar phrases to express the idea of Summers' unwelcoming manner, his inability to see the students' point of view, and the students being upset at the system in (8) and (9), the five sentences that convey these ideas are quantitatively and qualitatively insubstantial in the context of Authoritas as a whole. Any copying claimed based on (8) and (9) simply was not so extensive that an ordinary observer could conclude that the defendants unlawfully appropriated the plaintiffs original expressions.
"[S]ubstantial similarity is assessed by comparing the protected elements of the plaintiffs work as a whole against the defendant's work." Situation Management, 560 F.3d at 59. Greenspan and the defendants use similar aspects to express the two different meetings with Summers, including describing the reception area, Summers' office, Summers' conduct and manner, Summers' assistant's appearance and conduct, and the students' responses in the meetings. However, there is no dispute that Greenspan's book and the defendants' works were describing two different meetings which took place at different times, involved different student participants and different subject matter. These meetings were but a very minimal part of the various works as a whole. In context, whatever similarity there may be, it is too quantitatively and qualitatively insignificant to be deemed "substantial." Greenspan has not alleged sufficient facts to establish that a reasonable, ordinary observer could conclude that the defendants unlawfully appropriated the plaintiffs original expressions.
For the reasons stated above, the plaintiff has failed to state a claim for
Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930-31, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005) (footnote omitted).
"As these definitions suggest, in order to hold a defendant secondarily liable someone else must have directly infringed on the copyright holder's rights." Wolk v. Kodak Imaging Network, Inc., 840 F.Supp.2d 724, 750 (S.D.N.Y.2012) (citing Faulkner v. Nat'l Geographic Enters., Inc., 409 F.3d 26, 40 (2 Cir.)) ("[T]here can be no contributory infringement absent actual infringement."), cert. denied, 546 U.S. 1076, 126 S.Ct. 833, 163 L.Ed.2d 707 (2005); Matthew Bender & Co. v. West PubVg Corp., 158 F.3d 693, 706 (2 Cir., 1998) (rejecting plaintiffs contributory infringement claim, in part, because the plaintiff "has failed to identify any primary infringer"), cert. denied, 526 U.S. 1154, 119 S.Ct. 2039, 143 L.Ed.2d 1048 (1999); see also Elsevier Ltd. v. Chitika, Inc., 826 F.Supp.2d 398, 403 (D.Mass.2011). Counts I through III of the complaint shall be dismissed.
Plaintiffs fourth claim is that the defendants used unfair competition and false advertising in violation of the Lanham Act, 15 U.S.C. § 1125(a), in the marketing of The Accidental Billionaires and the Film. (# 1 ¶ 102)
The Lanham Act prohibits misleading representations in commercial advertising. See 15 U.S.C. § 1125(a). The First Circuit has delineated the cause of action:
Cashmere & Camel Hair Mfrs. Institute v. Saks Fifth Ave., 284 F.3d 302, 310-11 (1 Cir.), cert. denied, 537 U.S. 1001, 123 S.Ct. 485, 154 L.Ed.2d 396 (2002).
Greenspan contends that the defendants used misrepresentations in the commercial advertising by designating The Accidental Billionaires as nonfiction, by buying five-star reviews of The Accidental Billionaires, and by buying bulk purchases of The Accidental Billionaires to propel the book up the best-sellers list. (# 1 ¶¶ 96, 99, 100) The facts alleged to support the claim that referring to The Accidental Billionaires as nonfiction is a misrepresentation echo the facts alleged to support defamation, i.e., the defendants did not convey the plaintiffs role in the origins of Facebook.
The plaintiffs fifth claim is for defamation against the defendants for statements made in The Accidental Billionaires, omissions
Under Massachusetts law, a claim of defamation requires Greenspan to show that the defendants are "at fault for the publication of a false statement of and concerning the plaintiff which was capable of damaging his or her reputation in the community and which either caused economic loss or is actionable without proof of economic loss." Stanton v. Metro Corp., 438 F.3d 119, 124 (1 Cir., 2006). Thus, to survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege facts sufficient to establish that the defendants made "(1) a false and defamatory communication (2) of and concerning the plaintiff which is (3) published or shown to a third party." Carmack v. National R.R. Passenger Corp., 486 F.Supp.2d 58, 76 (D.Mass., 2007) (citations and internal quotation marks omitted).
The plaintiff alleges that he is incorrectly referred to in The Accidental Billionaires as "Grossman" rather than Greenspan and also by the terms "kid" and "some kid," and that such references are pejorative. (# 1 ¶ 47) In the plaintiffs view, the reference to his website in The Accidental Billionaires, i.e., "hardly anyone had paid any attention to it ... And Grossman's site wasn't particularly slick," implied that his work was irrelevant and of poor quality. (# 1 ¶¶ 48, 107) Greenspan contends that the selective omission of his role in the origins of Facebook in The Accidental Billionaires, and the complete omission of his role in the Film, withheld from the plaintiff his proper recognition. (# 1 ¶¶ 50, 66, 69) Defendant Mezrich's repeated claims that The Accidental Billionaires is "true" by implication magnified the harm of the aforementioned references to, and omissions of, the plaintiff.
It is not incumbent upon the court to determine whether the defendants' statements and omissions are defamatory, but rather only "whether the communication is reasonably susceptible of a defamatory meaning."
Damon, 520 F.3d at 104-05 (alteration, internal citations and quotation marks omitted).
The use of an incorrect name to refer to the plaintiff is not reasonably susceptible of a defamatory meaning. It simply is not reasonable to infer that a reader could interpret the incorrect reference as a communication regarding the plaintiffs role, or lack thereof, in Facebook's origins. References to Greenspan by an inaccurate surname would not tend to injure the plaintiffs reputation or subject the plaintiff to scorn, hatred, ridicule or contempt in the minds of readers.
Neither is use of the term "kid" to reference Greenspan reasonably susceptible of a defamatory meaning. The meaning generally conveyed with the term is a young person, which is, in its natural sense, not derogatory. It may be true that an interpretation of the term can be coupled with characteristics generally associated with people of a young age such as immaturity or inexperience. However, even those characteristics would not hold Greenspan up to scorn, hatred, ridicule or contempt by the community. Further, viewed in the context of the communication, the term "kid" is employed in The Accidental Billionaires to describe a number of students at Harvard University trying to build websites including all of the main characters in the book as well as college students in general. (# 40 at 4 and n. 4) It is not reasonable to infer that such reference could convey a defamatory meaning regarding the plaintiffs reputation to a reader.
The defendants' choice to omit the plaintiffs role in the origins of Facebook in The Accidental Billionaires and the Film is not reasonably susceptible to a defamatory meaning. Greenspan does not allege facts to show that because his role is not mentioned in either of the works, this omission gives rise to a plausible inference that a reasonable reader could conclude that the plaintiff was irrelevant in Facebook's origins.
Defamation claims cannot be founded on expressions of opinion. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) ("However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." (footnote omitted)). However, a statement which on its face is an opinion may actually be an implied assertion of fact; a speaker cannot escape liability by couching the statement in terms of opinion. Milkovich v. Lorain Journal Co., 497 U.S. 1, 19, 110 S.Ct. 2095, 111 L.Ed.2d 1 (1990); Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 127 (1 Cir., 1997). "[T]he relevant question is not whether challenged language may be described as an opinion, but whether it reasonably would be understood to declare or imply provable assertions of fact." Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d 724, 727 (1 Cir.), cert. denied, 504 U.S. 974, 112 S.Ct. 2942, 119 L.Ed.2d 567 (1992). "The determination whether a statement is one of fact or opinion is generally considered a question of law." Cole v. Westinghouse Broad. Co., Inc., 386 Mass. 303, 309, 435 N.E.2d 1021, 1025, cert. denied, 459 U.S. 1037, 103 S.Ct. 449, 74 L.Ed.2d 603 (1982); Driscoll v. Board of Trustees of Milton Academy, 70 Mass.App.Ct. 285, 296, 873 N.E.2d 1177, 1187-88 (2007). The Massachusetts Supreme Judicial Court has written that:
Cole, 386 Mass. at 309, 435 N.E.2d at 1025 (quoting Information Control Corp. v. Genesis One Computer Corp., 611 F.2d 781, 784 (9 Cir., 1980)).
The statements at issue in The Accidental Billionaires, in context, are: "Then the Greenspan kid had gone on to develop something called houseSYSTEM that had some social elements involved in it. Greenspan had even added a Universal House Facebook into his site, which Mark had checked out; hardly anyone had paid any attention to it, as far as Eduardo knew... And Greenspan's site wasn't particularly slick, and wasn't about pictures and profiles. Mark's idea was really different." Ben Mezrich, The Accidental Billionaires: The Founding of Facebook at 80 (2009). "A simple expression of opinion based on disclosed or assumed nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is." Cole, 386 Mass. at 313, 435 N.E.2d at 1027 (citation and internal quotation marks omitted); see
Applying these principles, the qualifier, "as far as Eduardo knew," cautions the reader that the statement "hardly anyone had paid attention to it," is based on the extent of Eduardo's knowledge and not any undisclosed facts. See Lyons, 415 Mass. at 266, 612 N.E.2d at 1163 ("The logical nexus between the facts and the opinion was sufficiently apparent to render unreasonable any inference that `the derogatory opinion must have been based on undisclosed facts.'" (quoting Restatement (Second) of Torts § 566, comment c, second par.)); see also King v. Globe Newspaper Co., 400 Mass. 705, 713, 512 N.E.2d 241, 246 (1987), cert. denied, 485 U.S. 940, 108 S.Ct. 1121, 99 L.Ed.2d 281 (1988) and 485 U.S. 962, 108 S.Ct. 1227, 99 L.Ed.2d 427 (1988). Merely because a person signed up on a website does not necessarily mean that the person was paying attention to the website; whether or not anyone paid attention to Greenspan's site is a subjective inquiry not amenable to an objective true or false resolution. No reasonable reader would conclude that the statements in The Accidental Billionaires suggest an assertion of fact about the quality of the plaintiffs work.
Similarly, the statement "wasn't particularly slick" is a figurative and hyperbolic communication for which there is no objective evidence to prove or disprove its falsity. Levinsky's, 127 F.3d at 127 ("[A] statement normally is not actionable unless it contains an objectively verifiable assertion." (footnote omitted)). "`[R]hetorical hyperbole' and other types of `imaginative expression' that writers use to enliven their prose" are protected. Phantom Touring, 953 F.2d at 727; Levinsky's, 127 F.3d at 128.
Defendant Mezrich's statements during the C-SPAN interview, in context, were: "There's been a lot of lawsuits, not just Eduardo and the Winklevosses. There's that other big one, there's this kid, who was involved in some sort of lawsuit, about the name `face book.' I don't remember how that worked out. I stand by the books. And, you know, the things that people point out, like, this is a perfect example of it. 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." (# 1, Schedule A). A reasonable listener could not conclude that defendant Mezrich's statements during the C-SPAN interview implied an assertion of an undisclosed fact about the plaintiffs motives. Mezrich disclosed his knowledge about a lawsuit that took place between Greenspan and Zuckerberg as well as the fact that he did not remember the outcome. This is clearly the basis for Mezrich's opinion that Greenspan's motive for attacking The Accidental Billionaires was a desire to illuminate his side of the dispute with Zuckerberg. Whether or not this was the plaintiffs motive cannot objectively be proven as true or false. No claim for defamation is stated.
For all of these reasons, it is ORDERED that the Motion Of Random House, Inc., Mezco, Inc., And Benjamin Mezrich To Dismiss With Prejudice (# 17) be, and the same hereby is, ALLOWED.
Mag Jewelry Co., Inc. v. Cherokee, Inc., 496 F.3d 108, 115 n. 7 (1 Cir., 2007).
