Lesson 6: “Facebook Ethics” (A/B testing edition)

Thus far this semester (we are half-way through!), we have been reading about the events at Harvard College in late 2003-early 2004 leading up to the launching of Facebook (or “thefacebook,” as it was then called) and using these events to explore many different fields of business law, including such areas as contracts, unfair competition, and intellectual property. Now, let’s fast-forward to January 2012, when our friends at Facebook conducted a massive (and secret) social psychology experiment on 700,000 English-language Facebook users without their consent. (Update: The scientific journal that published Facebook’s research later published an Expression of Concern but did not retract the article or impose any sanctions on the authors of the paper. By the way, for what it’s worth, one Facebook user took matters into his own hands and conducted a “reverse-Facebook experiment.”) So, was Facebook’s secret psych experiment an ethical one?

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Scoreboard Symmetry

Credit: goregyle (via reddit)

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Caribbean Europe

h/t: zurthen (via reddit)
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Legal liability of “innocent” co-authors for research fraud

Last week, we published a short letter in the journal Science in which we proposed extending the intentional tort of fraudulent misrepresentation to the most egregious cases of research fraud. After all, why should alleged academic fraudsters like Michael LaCour (political science) or James Hunton (accounting) be held to a different legal standard than businesses or ordinary persons? Yet many cases of alleged research fraud often involve “innocent” co-authors. To what extent might such co-authors themselves be legally liable for the primary author’s alleged research fraud? The answer to this question will depend on the scope of a co-author’s legal duty to independently investigate or verify the integrity or genuineness of the primary author’s research data. Specifically, a co-author might be liable for a primary author’s research fraud under the well-established common law doctrine of negligent misrepresentation. Broadly speaking, a negligent misrepresentation (as opposed to a “fraudulent” one) can occur when a person carelessly makes a false statement of material fact–including a misrepresentation that he honestly believes to be true but which he should have known was false. This theory of liability could thus apply to an “innocent” co-author who adds his or her name to a paper with fake data but does not make any reasonable efforts to verify the integrity of the primary author’s data. There is much more to the tort of negligent misrepresentation, however–and we are currently researching and writing up a formal law review article on this subject (legal liability for research fraud), so we will have more to say about this problem soon …

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Mapping the writers and the works of “the lost generation”

Credit: Martin Varnic (via kottke).

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  h/t: PaganWolfe73 (via imgur)

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Lesson 5: When does deception create legal liability?

Mark had met with them three times. They had exchanged fifty-two emails … Mark had looked at their code …” Ben Mezrich, The Accidental Billionaires, Ch. 14.

When was the last time you were lied to or deceived? Better yet, when was the last time you told a lie or deceived someone else? Aside from the ethics of deceit, what are the legal consequences, if any, of deception? As we saw in Lesson 3, Harvard sophomore Mark Zuckerberg and the Winklevoss team–consisting of Mark’s classmates Divya Narendra and Tyler and Cameron Winklevoss–had met in November 2003. During their meeting, Zuckerberg had informally agreed to “help out” the Winklevoss team with their Harvard Connection website. But sometime after this initial meeting, Zuckerberg decided to create his own website–“the facebook”–which he eventually launched from his dorm room on Feb. 4th, 2004. Unlike the Harvard Connection (later renamed ConnectU), the facebook would be interactive, but like the Winklevoss’s website, users would need a Harvard email address in order to join the facebook. So, here is the main question for this lesson (Lesson 5): even if the informal agreement between Mark Zuckerberg and the Winklevoss team was not a legally-binding contract (perhaps for lack of consideration), did Mark engage in unfair competition or commit business fraud (i.e. the intentional tort of “fraudulent misrepresentation”) by pretending to work on the Harvard Connection when, in fact, he was really working on his own website? Also, did he steal any trade secrets (see below) from the Winklevoss team?

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