prior probability

“This wasn’t right, damn it. This wasn’t fair.” –Quote attributed to one of the Winklevoss twins in Ben Mezrich, The Accidental Billionaires.

In our next lecture, we are going to re-enact another pivotal scene from the film “The Social Network” (see the YouTube clip posted below), a scene based on chapter 16 of the bestseller The Accidental Billionaires. (Cf. the fascinating prologue in Aaron Greenspan’s book Authoritas (ThinkPress, 2008), a memoir of his years at Harvard.) This scene takes place in the spring of 2004 in the office of Larry Summers, the former U.S. Treasury Secretary and distinguished economist who was the president of Harvard University at the time. In summary, Tyler and Cameron Winklevoss arrange a meeting with the president of Harvard (in real life, they waited in line like everyone else to meet Dr Summers during his monthly office hours), and they are going to accuse a fellow student (sophomore Mark Zuckerberg) of violating Harvard’s Honor Code, which reads as follows:

Members of the Harvard College community commit themselves to producing academic work of integrity – that is, work that adheres to the scholarly and intellectual standards of accurate attribution of sources, appropriate collection and use of data, and transparent acknowledgement of the contribution of others to their ideas, discoveries, interpretations, and conclusions. Cheating on exams or problem sets, plagiarizing or misrepresenting the ideas or language of someone else as one’s own, falsifying data, or any other instance of academic dishonesty violates the standards of our community, as well as the standards of the wider world of learning and affairs.

We will thus need three students to re-enact this pivotal scene: one to play the role of President Summers and two to play the roles of Tyler and Cameron Winklevoss. In the meantime, please think about the following three questions:

1. In your opinion, are the twins right? Did Zuckerberg violate the Honor Code?

2. Does Harvard have “jurisdiction” (i.e. legal authority) to investigate this alleged breach of the university’s honor code?

3. If this dispute is not a matter under Harvard’s jurisdiction, then what court would have jurisdiction to hear the Winklevoss’s allegations, a State court of general jurisdiction or an Article III federal tribunal?

In addition to the technical legal issue of “subject-matter jurisdiction” (i.e. the legal authority of a court to hear a case), we will also discuss the fundamental issue of personal ethics. Simply put, how do you decide between right and wrong?

“I’m thinking we keep it simple and call it the facebook.”

–Harvard sophomore Mark Zuckerberg, as quoted in Ben Mezrich, The Accidental Billionaires.

When Mark Zuckerberg registered the domain name for “thefacebook” and began building his new website in late 2003 and early 2004 (the original Facebook homepage is pictured below), he was potentially creating several valuable forms of intellectual property. But what type or types of intellectual property was Zuckerberg creating? Accordingly, in our next lecture we will study intellectual property rights or the “law of ideas,” including copyrights and trademarks (Lesson 6) as well as trade secrets (Lesson 7). Specifically, we will explore the relation between these major forms of intellectual property and the launching of the original Facebook website on 4 Feb. 2004.

Theft?

Bonus IP question: By the way, what do you think about intellectual property rights in tattoos? (My former student Talina Santiago posed this problem to me a few years ago in Ponce, P.R., and her question still resonates with me all these years later.) Specifically, can you copyright a tattoo design, and if so, who would own the legal rights to the tattoo design: the tattoo artist or the person who paid for the tattoo? We will consider the 2011 “Mike Tyson tattoo case” (Whitmill vs. Warner Brothers, Case No. 4:11-cv-752), and try to answer these questions in class. Specifically, we are going to re-enact an informal mediation session in our next class, based loosely on the facts in the actual Mike Tyson tattoo case. In summary, tattoo artist S. Victor Whitmill created a face tattoo for boxer Mike Tyson in 2003. As the creator of this world-famous tattoo, he sued Warner Bros. for using his design in one of its films (The Hangover: Part II) without the artist’s express authorization. (In addition, for this exercise, let’s assume that Mike Tyson is also suing the movie studio on the theory that he, not the artist, owns the legal rights to his face tattoo. After all, it’s his face!) Warner Brothers’ position, of course, is that tattoos cannot be copyrighted.

In real life, this interesting case was settled out of court through mediation, so in our next class, we are going to re-enact this mediation session. Accordingly, we will need several volunteers for this activity:

• Mike Tyson: Your role is to explain why you own the legal rights to your face tattoo.
• S. Victor Whitmill (tattoo artist): Your role is to explain why you own the legal rights to Mike Tyson’s face tattoo.
• Kevin Tsujihara (CEO of Warner Brothers): Your role is to explain why tattoos cannot be copyrighted as a matter of law.
• The mediator: The class as a whole will play the role of the mediator and will vote on what course of action to recommend to the judge in this case.