Facemash and Copyright Law

According to the 2010 film “The Social Network” (see page 27 of the movie script), the Harvard Ad Board accused Zuckerberg of “violating copyrights” (among other things) when he created Facemash. Really? This allegation may sound plausible. After all, creators of original works (including photographs and even selfies!) own the exclusive legal rights to their works the moment those works are created. But before we can conclude that someone is engaged in copyright infringement, we must ask what copyrights did he infringe? In the case of Facemash, since Zuckerberg did not have the express or implied permission to use the I.D. photos of his fellow students, he may have committed copyright infringement when he took those pictures from Harvard’s databases and posted them up to Facemash, but that begs the question: who owns the legal rights–i.e. the copyright–to those pictures? Harvard or the students themselves? (Why is the question of ownership so crucial? Because it is the owner who retains the right to sue for damages for any copyright infringement.)

To keep this analysis simple, let’s say Harvard owns the rights to those student I.D. photos. (Perhaps students are required to assign their legal rights to Harvard when they submit their photos to the university.) The next question is: did Harvard at any time formally register those pictures with the U.S. Copyright Office? Without formal registration, a copyright owner’s enforcement rights are very limited, since federal copyright law preempts State law in this area. (See here, for example.) For the sake of argument, let’s say Harvard took the precaution of registering those student I.D. photos with the Copyright Office the moment it realized those photos were hacked. What next? In theory, Harvard could sue the hacker in federal court and request statutory damages under the Copyright Act, but in this case, the hacker was one of its own students! If Harvard is not going to expel him over this conduct, is it really going to incur the expense or risk of negative publicity by suing him?

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