"Poking Facebook"

December 1, 2007 2:52 PM

02138 Magazine is "Poking Facebook" with court documents and Zuckerberg's potentially embarrassing online journal (pdf). Facebook responds.
posted by Soup (38 comments total)

Someday I hope to become rich enough to erase my past.
posted by weapons-grade pandemonium at 2:57 PM on December 1, 2007

So a hacker objects to the hacking of his hacking diary.
posted by Rumple at 3:00 PM on December 1, 2007

So a hacker objects to the hacking of his hacking diary.

Hacking? Someone kept the old file, and someone else released it.

Anyway, the ConnectU lawsuit is hilariously idiotic. These guys are suing Zuckerburg because he took their idea and ran with it. So what? Tons of people had that exact same idea, from Myspace to Friendster to 6degrees, and probably even further back. These guys are just sore losers, and pathetic.

That said, Zuckerberg is still a dick, and an arrogant little snot to boot.
posted by delmoi at 3:05 PM on December 1, 2007

He put the "[redacted] is a bitch" part inside html comment tags. So cool!
posted by topynate at 3:09 PM on December 1, 2007

if they paid him to write code for them, and he wrote the code and then took it to start his own company, that's stealing.

But without a contract, they can't really prove anything.
posted by empath at 3:20 PM on December 1, 2007

I resent Zuckerburg. Just watch him speak. He is like a bad caricature of stunted-egotistical-youth-at-elite-university. What really gets me is that this guy, mostly through chance, wounded up capitalizing hugely on an idea tons of people had and many more had the ability to implement. It's not like he was a visionary risk taker - plenty of others tried too (many schools had their own versions of facebook before the establishment of their hegemony, and there was always orkut and myspace) he just happened to run the network that gained momentum (likely because he was at harvard, and initially had the sense to restrain people from dicking around with their profiles too much).
posted by phrontist at 3:28 PM on December 1, 2007

if they paid him to write code for them, and he wrote the code and then took it to start his own company, that's stealing.

First of all, copyright infringement isn't Stealing. Secondly, it's hardly that simple. According to copyright.gov it depends on whether the person was an 'employee' or a 'contractor'. If they're a contractor, they'll own the work unless there's a contract.

And anyway, there's no reason to believe that the guy re-used code he wrote for them. Once you write something once, writing it again is pretty easy, since you know exactly what's needed. And it's not like the original facebook was all that complicated.

It's not like he was a visionary risk taker - plenty of others tried too ... he just happened to run the network that gained momentum

Exactly, and the whole Beacon debacle shows pretty clearly that he doesn't have some intuitive sense about how to build social networks.
posted by delmoi at 3:49 PM on December 1, 2007 [1 favorite]

So, this Zuckerberg fellow, he's what? Egotistical? Dishonest? Greedy? Dishonorable?

I predict he'll go far.
posted by Ritchie at 3:51 PM on December 1, 2007 [1 favorite]

I resent Zuckerburg. Just watch him speak.

Hah, I'm watching that video. "We listened to our users and gave them more control. Now they looove it, they love it!"

What a dick.
posted by delmoi at 4:00 PM on December 1, 2007

Wrong, as usual.

Huh. Once again claiming I'm wrong without any citation. Did you even read the document I linked to?
posted by delmoi at 4:01 PM on December 1, 2007

Once again claiming I'm wrong without any citation.

Burden of proof's on you, delmoi.
posted by oaf at 4:06 PM on December 1, 2007

Burden of proof's on you, delmoi.

You people are strange. It's not even clear what you want to argue about, but somehow it's delmoi's fault.
posted by a robot made out of meat at 4:17 PM on December 1, 2007

No it's not.
posted by weapons-grade pandemonium at 4:31 PM on December 1, 2007 [1 favorite]

Strange -- the "Poking Facebook" article comes up with a blank page for me (but the Google cache version works).

I can access 02138's other links to 'The Facebook Files' work for me.
posted by ericb at 4:42 PM on December 1, 2007

*They work for me.*
posted by ericb at 4:43 PM on December 1, 2007

Burden of proof's on you, delmoi.

oaf: Why don't you think the document I linked to initially is sufficient evidence? The only thing I can think of is if you think that the ConnectU code had been a 'collaborative work', but it seems that the people who hired Zuckerberg only hired him.

Anyway, I think the document I linked to is sufficient evidence for my claim. There are a couple types of works that can still be considered works for hire under copyright law even if the author was not an 'employee'. aside from collaborative works they also include:

• a work specially ordered or commissioned for use as a contribution to a collective work
• a part of a motion picture or other audiovisual work,
• a translation, as a supplementary work
• a compilation, as an instructional text,
• a test
• as answer material for a test
• an atlas
• or if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire

I didn't mention those things because I didn't think they applied to this case.

In any event, it would never be possible to cover every conceivable facet of every single possibility in a short comment. The comment I was responding to was actually wrong, while my response cut out some things that weren't relevant to the current situation, because I was only pointing out how the original comment was wrong.

fandango_matt also has a history of claiming, without evidence or even bothering to explain why that I'm wrong about some issue or whatever. Dispite the fact that actually, I'm right and he's he the one who's mistaken. But, there is no way to show how he's mistaken because he doesn't actually say what it is he thinks, other then that I'm wrong.

It's actually quite lame, and I kind of feel silly posting such a long response, since it's a complete derail and distracts from the point of the post, which is how much of a dick Mark Zuckerberg is.
posted by delmoi at 4:47 PM on December 1, 2007

Copyright infringement is indeed "stealing," legally and often morally. So is theft of services.
posted by fourcheesemac at 6:04 PM on December 1, 2007

Copyright infringement is indeed "stealing," legally and often morally. So is theft of services.

Well, morals are one thing, but I'm curious why you think copyright infringement is legally the same as theft. Are you saying that someone who infringes copyright can be charged with the crime of theft or burglary? If so, then you are completely mistaken.
posted by delmoi at 6:25 PM on December 1, 2007

Copyright infringement is indeed "stealing," legally and often morally. So is theft of services.

Wrong. From Dowling v the United States, 1985:
"It follows that interference with copyright does not easily equate with theft, conversion or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: "Anyone who violates any of the exclusive rights of the copyright owner," that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute, "is an infringer of the copyright."

Why is it that every time we discuss copyright infringment, someone always pops up with that "but it IS stealing!" remark? It's almost as if they think that if they repeat something often enough, it will magically come true.
posted by aeschenkarnos at 6:28 PM on December 1, 2007 [2 favorites]

Strike One: News Feeds
Strike Two: Beacon
Strike Three?
posted by tarheelcoxn at 6:48 PM on December 1, 2007

It's almost as if they think that if they repeat something often enough, it will magically come true.

In the real and meaningful sense of truth-as-consensus belief, it does.
posted by tarheelcoxn at 6:54 PM on December 1, 2007

I don't know what fandango_matt thinks is wrong, but it's absolutely true that contract work is not "work made for hire" for copyright purposes in the absence of a written contract establishing it as such:

A “work made for hire” is—

(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities. [USC 17, § 101]

Only if the work in question is a work made for hire is it the property of the employer [USC 17, § 201 (b)]. As Zuckerberg was not an employee but a contractor (by any reasonable definition, and also by that of the IRS), in the absence of a written contract, the copyright on any code he prepared is his. (Perhaps the ConnectU people have some trade secrets claim they can make here — IANAL. But I think the above is fairly clear as regards the narrow question of the ownership of the copyright.)
posted by enn at 8:07 PM on December 1, 2007 [1 favorite]

Strike One: News Feeds
Strike Two: Beacon
Strike Three?

I don't think face book will ever go away, but if they stop growing and something eclipses them, they're as good as dead. They'll always be there and they'll always make money. Just look at myspace, or hell AOL.

But hopefully this kind of thing will spur more more people to demand profile portability. There's no reason why face book should 'own' our information, and be able to do whatever the hell they want with it.
posted by delmoi at 8:13 PM on December 1, 2007 [1 favorite]

02138? pfft. 02139, FOOL
posted by rxrfrx at 8:14 PM on December 1, 2007

As Zuckerberg was not an employee but a contractor (by any reasonable definition, and also by that of the IRS),

Incorrect. He was offered into the project on an explicit equity stake. Read subsection (1) of the work-for-hire definition.

in the absence of a written contract, the copyright on any code he prepared is his.

Also incorrect. In the absence of a written contract, the court would look to infer the terms of the agreement, in which case Zuckerberg is most royally screwed. Subsection (2) of the work-for-hire definition is non-exclusive -- note the use of "if," rather than "only if," etc. -- and therefore the parol evidence rule applies.

Prior to the codification of the term "work-for-hire" in the 1976 Act, the usual judicial test for authorship would look first to (1) supervision, (2) creative control, and (3) industry custom, all of which do not work even remotely in Zuckerberg's favor. Given the lack of a written agreement, it seems likely that the pre-76 test would apply. I can't think of any other rationale that works in Zuckerberg's favor -- he bears the burden of demonstrating independent creation of the site, and I haven't seen any evidence of that so far. The bar for infringement in copyright doesn't even have to be intentional.

Your reading of the statute's burden-allocation is backwards.

Regardless, even if there's no copyright case, there's still probably a cause of action for trade secret violation, or some brand of misappropriation.

Sorry, delmoi.
posted by spiderwire at 10:41 PM on December 1, 2007

In the real and meaningful sense of truth-as-consensus belief, it does.

--which has fuck all to do with the application of a legal term of art. What's your point?
posted by spiderwire at 10:44 PM on December 1, 2007

Incorrect. He was offered into the project on an explicit equity stake. Read subsection (1) of the work-for-hire definition.

Well, thank you for the correction. If you're still reading this, what is your basis for considering equity-holders (or prospective equity-holders, since it doesn't sound as though any equity was actually transferred) to be employees rather than contractors? The description in the article — fixed compensation based on deliverables, little or no supervision, no contact between parties for weeks at a time — doesn't sound like an employee relationship to me, but perhaps the equity issue changes things in some way?
posted by enn at 11:20 PM on December 1, 2007

(I'm also not sure how you can say that supervision and creative control are not factors weighing in Zuckerberg's favor — assuming the facts are as stated, it sounds like he had little of the former and a good deal of the latter. Industry custom is more debateable, but I notice that several of the cases discussed here involve software, and several of those were decided in favor of contractor status. Of course, none involve equity as compensation.)

And I apologize for belaboring this side issue, but it's one that's been interesting to me for a while and I enjoy hearing the opinions of people who know what they're talking about.
posted by enn at 11:40 PM on December 1, 2007

If you're still reading this, what is your basis for considering equity-holders (or prospective equity-holders, since it doesn't sound as though any equity was actually transferred) to be employees rather than contractors?

Well, the first thing that comes to mind is that the method of payment is one of the eleven factors that the Court outlined in CCNV v. Reid, which is the reference case for application of the work-for-hire doctrine. But the real point is that, first, subsection (2) of the 1976 amendment is a non-exclusive "safe harbor" provision meant to clarify the doctrine in the 1909 Act, and, second, the distinction between "employee" and "contractor" is not the test for evaluating authorship under the work-for-hire doctrine. That's merely shorthand for the question of creative independence.

The entire issue here -- and particularly in Reid -- is that authorship turns on what an "employee" is, and it's not defined in the Act. The rule laid down in Reid is that the term 'employee' should to be interpreted by the general common law of agency, and therefore the relevant question is the hiring party's control over the manner and means of the project. The post-Reid reference point is §228 of the Restatement 2d of Agency, not whether or not the producer is characterized as an "employee" or a "contractor."

Put more straightforwardly, the pertinent question is who maintained creative control over the project. Prior to hiring Zuckerberg, the previous programmer had dropped out and been paid a single fee; Zuckerberg was hired on a continuing basis and given a project to complete. The issue of the equity stake is extrinsic evidence which goes to the nature of the agreement. The reason that the equity stake is important in this case is that it establishes the method of payment, the duration of the relationship, the right to assign additional projects, the regular business of the hiring party, etc. -- some of those eleven factors I mentioned that bear on the issue of control.

Based on my reading of the facts, I disagree with your characterization of the "description in the article," but even if the equity issue isn't dispositive (and it's not, though it is important), frankly, the entire question is really anterior to the central question of the case. Even if Zuckerberg wins that the software wasn't a work-for-hire, and that it wasn't a joint work, I haven't heard him make any argument against the misappropriation claim, which is really the heart of the issue. If the software was, in fact, a work-for-hire, that would simply end the whole inquiry, but I don't think it's really all that close regardless.
posted by spiderwire at 11:48 PM on December 1, 2007

I'm also not sure how you can say that supervision and creative control are not factors weighing in Zuckerberg's favor

"Creative control" speaks to the degree to which the employer specified and influenced the parameters of the project -- since Zuckerberg was, as I understand it, hired to complete a project rather than build something from scratch, that tends to weigh in the plaintiff's favor. As to supervision, the fact that Zuckerberg refused to respond to inquiries -- as the plaintiffs claim -- does not, I think, redound to his benefit. Refusing to be supervised when supervision is appropriate doesn't give you a free pass in this case.
posted by spiderwire at 11:51 PM on December 1, 2007

Let me put it this way -- the Reid factors, too, are shorthand, in that they basically ask the question of who "created" the work in an equitable sense. The issue is, quite simply, creative independence, creative capability, and the relationship of the two parties.

CCNV hired Reid to make a sculpture -- Reid was a sculptor, was given lots of creative license, and CCNV didn't know jack about sculpting. If a company that makes sculptures professionally hires a sculptor and gives them some reasonably specific outlines of what to make, that case probably comes out the other way.

The Reid factors are a way of laying out some of the questions you'd ask to resolve the aforementioned issue: Is it a one-off project? Is it done on company premises? Is it something that any yahoo could do? Is it a contribution to an ongoing enterprise that the employer is engaged in? (Really, any time you see the Court lay out an eleven-factor list, what's happening is that it's just an issue of equity but the Court wants to dress it up and make it a little more official.) (And yes, I know that there are canonically twelve factors, in case anyone's wondering, I just don't think that (9) and (10) deserve their own numbers.)

Frankly, I think pretty much any angle you take on the case comes out against Zuckerberg and, as I said, even if he wins the work-for-hire argument, they don't really need that to nail him. The standard access/similarity test for copyright infringement as well as the vanilla trade secret infringement test are both slam dunks. They'll get a big settlement and that'll be that.
posted by spiderwire at 12:08 AM on December 2, 2007

Re-reading the article I see the facts are not quite as clear-cut as I remembered (I read this article a couple days ago when I saw it elsewhere) and that it's not at all clear, as I thought I recalled, that this is not a joint work, which would render the work-for-hire issue moot. And thanks for your reference to the Restatement 2d of Agency, which will be interesting to research further. I appreciate your taking the time to go into this.

Refusing to be supervised when supervision is appropriate doesn't give you a free pass in this case.

Damn; there goes my "But I was a really bad employee" defense.
posted by enn at 12:14 AM on December 2, 2007

Even if it were a joint work, joint works are treated under tenancy-in-common rules; there would still be damages, they would just be apportioned rather than strictly restitutionary.
posted by spiderwire at 12:22 AM on December 2, 2007

I appreciate your taking the time to go into this.

Not at all — I get a great deal of practical benefit from legal discussions, so I'm the one that should be thanking you (and everyone else) for tolerating me when I get all pedantic.
posted by spiderwire at 12:26 AM on December 2, 2007

Why don't you think the document I linked to initially is sufficient evidence?

Because doesn't deal with all that's going on here. You can't just link to something on copyright.gov and claim that it refutes anything, because it doesn't. You need to know a lot more about what was going on between the parties before you can determine anything.
posted by oaf at 6:29 PM on December 2, 2007

--which has fuck all to do with the application of a legal term of art. What's your point?

People who repeat this claim aren't doing it in a courtroom. Their audience isn't a judge, lawyer, or even a remotely-clued observer: it's the would-be casual 'pirate' of media or software.

Have you not been in a theater when they play the horrible "you wouldn't steal a car" anti-piracy adverts? I love this parody, btw.

You're right, but you and I aren't the audience.
posted by tarheelcoxn at 8:33 PM on December 2, 2007

Well, the RIAA/MPAA ads you're talking about all draw analogies between copyright infringement and stealing. That's disingenuous, but it's a far cry from saying that stealing and copyright infringement are the same thing -- if those ads that, they'd be sued, since it's not.

But that wasn't the topic at hand. You weren't responding to some shell in a movie theater, you were responding to a typically insightful fcm comment reading,

Copyright infringement is indeed "stealing," legally and often morally. So is theft of services.

-- which is facially incorrect. Someone pointed out that you can't change the law by chanting and clapping your hands (though you can change it by voting, much to some people's confusion), and then you dropped "consensus-belief" on the thread.

All I commented to say at that point was that:
1. fourcheesemac is wrong. Dead stop, wrong.
2. aeschenkarnos found the appropriate authority and that should have ended the conversation.
3. Then you had to come in with "truth-as-consensus-belief," which, to put it politely, isn't relevant. You can believe with all your might copyright is stealing or that the DMCA is a blight on the nation and so on and so forth, but sadly, our government does not vote on the basis of consensus reality. It votes on old, statuts, common law, and facts, facts, facts.

And no many more people join in your absolute conviction in your Constitutional right to run through downtown naked and screaming through the city, I assure that there has not yet been a consensus belief that can agree strongly enough that a jail cel should open.

My point is that consensus belief doesn't have much of an effect on the decisions of the court most of the time. That's why we have pre-trial hears to clarify and emphasize the use of particular terms of art for laypeople on the jury. As a participant in this thread at which the original infective was flung, I'm not a layperson, so I'll take them and answer them as they come my way...
posted by spiderwire at 11:37 PM on December 2, 2007

...However, I will utterly fail in my command of English when I try to type responses just prior to falling asleep. To summarize the last two paragraphs: consensus reality ain't freed Mumia yet, so the rest of the world prolly shouldn't hold their breath.
posted by spiderwire at 5:36 AM on December 3, 2007