Annie Kuo Becker: Welcome to Discovery. I'm your host Annie Kuo Becker. Today we're looking back at one of the most consequential legal battles of the early social media era: a series of lawsuits involving Facebook founder Mark Zuckerberg and Harvard students Cameron and Tyler Winklevoss and Divya Narendra, the founders of what became ConnectU. The story has become part of popular culture thanks in large part to the film “The Social Network” directed by Aaron Sorkin, who's releasing another Facebook-centered movie October 9 called “The Social Reckoning” but the real litigation was considerably more complicated than the movie suggests.
There were proceedings in both Massachusetts and California, competing claims by both sides, extensive discovery and depositions and ultimately a settlement rather than a trial verdict, deciding who was responsible for the creation of Facebook.
Our guest today had a front-row seat to this litigation. Scott Mosko is an attorney whose practice has focused heavily on intellectual property and patent litigation.
During his years at Finnegan in Silicon Valley, he was lead counsel in the California litigation involving Facebook and Mark Zuckerberg representing ConnectU, the Winklevoss brothers and Divya Narendra. The UW School of Law maintains a large affiliate faculty program that includes practicing attorneys who bring their professional experience into the classroom. Scott Mosko moved to Washington state in 2020, and after decades as a guest lecturer at UW Law is today an affiliate faculty member teaching patent law.
Court filings from the case identify Mosko as lead counsel for ConnectU and other defendants, and the record includes his work involving discovery and deposition evidence, including material concerning Zuckerberg's very first deposition of all time. Scott, welcome to Discovery.
Scott Mosko: Thank you.
AKB: So, let's go back to the beginning. Before Facebook became the Facebook it is today, and now Meta, Cameron and Tyler Winklevoss and Divya Narendra were working on a Harvard social networking concept that eventually became ConnectU. One of the things that makes this story interesting is that there were actually two legal tracks developing, the Massachusetts litigation and the California litigation. Can you explain how those two cases came to exist and how they related to each other?
SM: Sure. The underlying claim that Divya Narendra and the Winklevoss brothers brought concerned their issue of whether Mark Zuckerberg actually stole the idea from them for what ultimately became the Facebook. Years or some time before the litigation started, Divya Narendra actually came up with the idea for a social type of network that was tied to the universities throughout the country, and they hired Mark Zuckerberg to do the coding because they had found out through some interesting sources that Mark had coding capabilities.
They hired Mark to actually do the coding for this idea, and when Mark ultimately — Mark Zuckerberg — ultimately launched the Facebook without their knowledge, they took the position that that he had violated their trust, that he had stolen the idea, and so a lawsuit was filed in the Massachusetts court, the district court in Massachusetts, regarding that ultimate claim. Now, some time later, a second lawsuit was filed by Zuckerberg and what was called the Facebook in California, and I was the lead counsel for the California case.
AKB: The public version of the story is often simplified to the Winklevoss brother sued Zuckerberg, but Facebook and Zuckerberg also brought claims against ConnectU and its founders in California, which you've just described. So, your firm represented ConnectU in that litigation. What exactly was the Facebook — as you've mentioned, Facebook today was called the Facebook at its launch — so, what exactly was the Facebook at the time accusing the ConnectU side of doing?
SM: So, when Zuckerberg launched the Facebook, it launched through various websites that were tied to universities. So, you could be a university at Amherst, a university here at Washington, UCLA, any of them. But if you were a student at one of those universities that Facebook had actually launched in, you could become a member and tie into their social network. And essentially, it was really exactly that — a social network, something that was designed to allow the students to communicate with one another.
Set up dates, for example. If you were taking Psych 101 and you missed the class because you were sick that day, you could email the people in that network to say, "Hey, I missed Wednesday's class. Would anybody, could anybody share the notes with me?” That type of thing. So, that's what Facebook initially was designed to do. There was a competing site that the Winklevoss brothers and Narendra set up called ConnectU, doing somewhat of the same thing.
And what the Winklevoss brothers and Narendra ultimately did was they were able to access the Facebook sites on these various universities, and then communicate with the people who were members of the Facebook site at the universities, and essentially try to pull them to their site, to the ConnectU site. So, ultimately, what happened is that Facebook and Zuckerberg sued the Winklevoss brothers and Narendra for essentially attempting to steal information or take information that they contended they were not allowed to do. That was the second case. That was the lawsuit that was filed in California, where I was lead counsel.
AKB: Eventually, there was a settlement, right? Both cases eventually settled, so there weren't any verdicts that came down. Facebook was pursuing the case against ConnectU in California, and there was another law firm involved that wanted a settlement.
SM: So, not uncommon, many times a client may very well hire more than one law firm, and in this instance, the Winklevosses decided to hire a second law firm in addition to mine. Also, not uncommon when two different law firms are involved in the same case, they have differences in opinion, and a difference arose between the two law firms. I and my law firm believed that we should continue the discovery of the activity that was going on between Zuckerberg and the ConnectU folks, the Winklevoss folks, that we should get more discovery before we entered into any kind of reasonable settlement agreement or settlement discussions.
The other law firm disagreed with that and pushed the idea of settlement, and we ultimately ended up at a settlement conference in San Francisco in the early 2000s that ultimately resulted in the settlement of the case, both cases, the Massachusetts case and the California case.
AKB: So, one of the fascinating things about litigation is how the public sees the pleadings and the headlines, but then the lawyers see these behind-the-scenes aspects. The lawyers see a much larger universe of information, depositions, and emails, and discovery, and forensic evidence, confidential documents.
There was a remarkable episode during the Massachusetts appeal involving confidential court materials that somehow became publicly accessible and were photographed by a reporter. There's some reason to believe that Aaron Sorkin, the director of the movie, partially used some of the information for the movie that came out as a result.
Can you take us inside the moment of what happened and what it meant for the lawyers on both sides.
SM: The federal court system involves two different courts, really. There's the trial courts, which we call the district courts, and there are the appellate courts, which we call the circuit courts. And in Massachusetts, even though they're two different types of courts, they happen to be located in the same building on different floors, but in the same building. The district court clerk put all of the information on a cart and wheeled the cart up to the floor where the circuit court of appeal was located in Boston.
And this reporter initially went to the district court level and said, "I'd like to see whatever I can see in the Facebook case, and the clerk directed the reporter to the circuit court office several floors above them. And I'm told that what occurred was the reporter went to the clerk at the circuit court level, said, "I'd like to see the Facebook files,” and they were still on the cart, and the clerk at the at the federal circuit said, "Oh, they're all over there on the cart,” and allowed the reporter to look at them.
Now the clerk then walked away, and the reporter spent the next several days photographing many of the documents that were in that file, which included the confidential information, which was not supposed to be seen by the public. And then, interestingly enough, the reporter was connected with a magazine at the time located in Massachusetts. Several stories were written about the confidential information that were ultimately published by the reporter’s company.
I found out about it initially because I had access to these various magazines, and I went into my office one morning and accessed the magazine, and I start reading this information that I knew was confidential. And my opponent at the time, that is the the lawyer who was representing Zuckerberg, did the same thing, and we each individually thought that the other was violating some procedure by releasing the information. It was a fascinating activity that actually went on between the two of us.
AKB: And both sides are probably, like, wondering what were they thinking.
SM: You are exactly right. That's exactly the thought that I had when I saw that on my screen.
AKB: And then there's an extraordinary moment in the courtroom when an attorney, because there's an emergency hearing, right, that's called to address this information, this confidential information being made public. When an attorney representing the publication appeared in court and explained how the publication had obtained the material.
SM: There was a hearing that the Facebook lawyers called on the assumption that they thought that we, as the representatives of the Winklevoss brothers, were divulging information. It was an emergency hearing. The court took the bench and the presentation started. The court then took a recess. When the recess was done, somebody from the audience stepped up to the lectern, which is unheard of, and said that he was in the audience, he understood what was going on and had some information that would be might be useful to the court, so the court might understand what actually occurred. It was a lawyer who represented the magazine, and the lawyer conveyed that here's what occurred. The reporter was able to access the information through the clerk's office.
AKB: This is why it's so cool to talk with you because these sort of anecdotes of behind the scenes are not, it comes out much many decades later, but still fascinating to hear.
So, then comes “The Social Network” movie. You've told me that watching the movie was difficult because so much of what appeared on screen did not match what you remembered actually happening. Aaron Sorkin, the director, initially contacted Finnegan as part of his research, but the lawyers declined, of course, to provide confidential information because of obligations to their clients. What did the movie get right, and what did it get wrong?
SM: Well, the notion of the Winklevoss brothers and Divya Narendra initially coming up with an idea for a social network that was tied to the universities, my recollection was correctly conveyed in the movie. The idea of hiring — the Winklevoss brothers hiring — Mark Zuckerberg to do the coding that was correct, and then Mark leaving Harvard to come to California to actually write code to launch and to continue with the Facebook was correct. So, that generally was accurate, but the activities among the various people were not accurate, were not consistent with what actually occurred.
They made up a procedure of all sitting around a table where some formal proceeding was going, that never occurred. There was some discussion about parties, a grandiose party. I believe it was in Malibu, California, which is in Southern California. That's not the way it was initially explained to us as to how it was occurred, whether there was cocaine use and the like, who knows?
But the producers of the Social Network took the opportunity to make the film probably more interesting, but in terms of somebody who was — speaking as somebody who was — actually part of the activity and knew what was going on, it was hard to watch because you're taken in by the notion of oh okay this is going to be about what actually happened. In many instances, it wasn't.
AKB: Would you then confirm that some of the material that surfaced publicly during the litigation reportedly became part of the cultural mythology surrounding the story?
SM: You know, the more information that came out added to the story. There was so much information that was gathered during the two cases, that it's hard to confirm what had the effect in the real world and whether it really made much difference. You know, the story was out. Zuckerberg did take the information. We knew about it and I'm expecting you're going to ask me about some situations about what occurred before the settlement conference occurred, but there were certainly many pieces of information that came out that shouldn't have come out based on the court proceedings.
AKB: Yeah, and you're taking us right there. I wanted to address the settlement. Ultimately, the Massachusetts and California litigation didn't end with trial verdicts deciding who invented Facebook, because the parties reached a settlement in 2008 that was widely reported at approximately 65 million in cash in Facebook stock. I know you know the number, but won't confirm the amount, which is fine. There was a 2008 Vanity Fair article by Ben Mesrick, who wrote the book “The Accidental Billionaires” which is what the movie was based on. It brought us into the very room where settlement negotiations took place, and you were there …
SM: I was there.
AKB: … behind the glass conference room walls, observing every minute of of that event. Did Mark Zuckerberg actually ask for reassurance that the Winklevoss brothers, who were Olympic rowing athletes, would not take a swing at him?
SM: That's my recollection. There was some concern the the Winklevoss brothers before, really after we reached the terms of the agreement, the Winklevoss brothers wanted to have a face-to-face communication with Zuckerberg, and there was some concern that Mark Zuckerberg had, as I recall, about his safety. And so what they did was they put all the lawyers in this grandiose room that had glass behind it. So, there was a glass separation.
Outside, they set up two benches, if you will, or sofas or couches, and they put Zuckerberg on one, and they put the Winklevoss brothers on the other, and it was far enough away that there wouldn't be any problem. Although the mediator at the time said that he had martial arts capabilities — I remember this very well — said something to the effect that if either one of the Winklevoss brothers made a move towards Zuckerberg, an aggressive move towards Zuckerberg, the mediator said something to the effect that he intended to break his clavicle, which was all very funny and interesting.
I don't think anybody expected or thought that that the Winklevoss brothers were going to do anything. Yes, they were six-six rowers versus Mark Zuckerberg, who is certainly not even close to that size. Could they have overpowered him? Of course. I never believed that there was a possibility that Cameron or Tyler were going to do that, but it was sort of dramatic and interesting to observe that whole scene.
AKB: Yeah, to be there, I imagine emotions were riding high. And it's a fascinating article about that very event. So, we're going to link to it in our show notes. Before the settlement, and out of the blue, the Winklevoss brothers received a series of emails warning them not to settle. Can you tell us what you can about that?
SM: Probably one of the more strange events in my 40-some odd years of being a intellectual property litigator. Cameron Winklevoss received anonymous emails from a source that we can only guess who it might have been, and the anonymous emails included a reference to Menlo Park. And specifically the emails went something like, "Do not settle. Menlo Park is withholding information.” Well, it turns out that Menlo Park was the location of Zuckerberg's law firm, and during the course of these litigations, the parties get to ask questions, get to seek information through what we call document requests, and that activity had occurred.
And these communications that Cameron began receiving were suggestive that somebody knew that there was a lot more information out there than had been disclosed at that point. So, that raises the issue as to the sort of dispute between the two law firms about when the right time to settle the case or even discuss settlement should be. And again, we, the Finnegan Law Firm, believed that we should wait to see. We should wait to get more information. The other law firm felt otherwise, and the client has the opportunity to listen to both sides and make a decision.
The client at that time, the Winklevoss brothers, decided to go forward with the settlement. Now, the information that is published in the Vanity article is consistent with the information that was conveyed to Cameron, suggesting that this person did have the knowledge or have some knowledge as to what was there. If the parties did not reach a settlement, would that have affected a jury as to the value of what the case was worth? Could be. It was certainly aggressive information. It was certainly information that would not that did not put Mark Zuckerberg in the greatest of light.
We didn't feel that as the firm at that time, my firm at that time, thought we should wait to find out, get more information. There are ways that the court system will allow us to compel the production of documents. We thought we should go forward with that. The Winklevoss brothers wanted to settle, and they had the right to, and they did.
AKB: And later, the Winklevosses and Narendra challenged aspects of the settlement, including the valuation of the Facebook share. So, perhaps the Finnegan law firm was kind of in a state where they could have said, "Well, we told you so,” but the courts ultimately enforced the agreement.
SM: Well, you're right. I mean, listen, one doesn't know where or the value of a case, and you you could ask 10 lawyers what the value of a case is, you'll get 10 different answers. I don't know that any of us ever said we told you so.
AKB: Maybe thought it.
SM: I suspect some of us probably thought about it. The dispute that ultimately occurred was because Facebook at that time was not public. There was no valuations that had been published about it, but there was a valuation that I believe Microsoft had provided for some reason, which I don't know or I don't remember, and that valuation was never shared with us before the settlement.
And the Winklevosses took the position that we should have known about that before the settlement occurred.
AKB: But y'all didn't. The Winklevoss brothers and Finnegan weren't aware that Microsoft had provided that valuation before the settlement.
SM: Right. And the calculation, there were many ways that the calculation of settlement went through. I can't tell you how they ultimately came up with the number. I can tell you that there was an insistence by Cameron that part of the settlement be through Facebook stock, which turned out to be a very smart decision by Cameron Winklevoss because the stock obviously became very valuable.
AKB: So, what did that settlement actually resolve for your clients before they knew about the Microsoft valuation? Perhaps it was closure and some peace of mind, or some validation that their idea could have been stolen.
SM: Well, Mark Mark Zuckerberg has always taken the position that they didn't — that is, the Winklevoss brothers and Narendra — did not invent Facebook. He did. What was eventually released in 2004 was a lot different than what Facebook was in 2008, and then it's a lot different now in 2026, right? So, it migrates, it changes, and how that would have occurred if the Winklevoss brothers and Narendra were at the helm, who knows?
AKB: Yeah.
SM: But things changed, and obviously Mark Zuckerberg made some very good decisions, at least decisions that resulted in a very valuable commodity in Facebook, in the Facebook stock.
AKB: Yeah.
SM: Would that have happened if Narendra and the Winklevoss brothers were at the helm? Who knows?
AKB: Who knows? And if the listeners are interested in kind of judging for themselves what may have happened, I came across a book called “The Facebook Effect,” which has a chapter detailing the history of social networking over decades. There could be the argument that Mark Zuckerberg was just building on the shoulders of what had been a continuous chain of of people getting to that point.
You've got a distinction that's almost impossible to ignore in this conversation. You were the first person to ever depose Mark Zuckerberg.
One of your filings from February 2008 attached excerpts from Mark Zuckerberg's April 2006 deposition, as well as Cameron Winklevoss's January 2006 deposition. I think I'm reminding you some of these things that happened 25 years ago. That's significant because those depositions were part of the factual record underlying the dispute over what Zuckerberg knew about the Connect U project from Harvard and what happened during the development of Facebook. What was Zuckerberg like as a witness?
SM: Many witnesses are complacent. They are responsive. They are not combative, and Mark was exactly that. There were no particular issues of him raising his voice, of him arguing. He was there with a seasoned lawyer as his counsel during the deposition, my recollection is that he responded to the questions that were asked. His lawyer helped him out, as in many instances lawyers do during depositions. But certainly, as projected in many of in “The Social Network,” he was not that individual that was projected, at least during the deposition that I took.
AKB: Okay, so that was the real Mark Zuckerberg, perhaps at least at the time, as a kid in his 20s,
SM: And as being throttled by the lawyer who was representing him. He was a kid. He was in his 20s. He was certainly a very smart individual, but he was certainly not combative during the deposition.
AKB: Let's get to the present. You're an affiliate professor here at the University of Washington, and you're teaching patent law, including this fall. This will be your second year teaching patent law, but you've been guest lecturing here for decades. What do you hope students, particularly law students, who are going to work with technology companies take away from cases like this?
SM: Intellectual property is really the core of what allows companies to protect their information, and without that kind of protection, the notion of spending the dollars that it takes in order to come up with technology would likely not occur. Certainly, from the patent standpoint. Copyright standpoint as well. And we have trademarks that protect the notion of the name, and and there are courses here at the University of Washington that are terrific that address those areas as well. That is copyright and trademark.
From a patent standpoint, those people who are interested in the course go on to, many times will go on to, in careers at big companies — Microsoft, Amazon — to protect the intellectual property. Others go on to law firms. There's some incredible law firms here in the state of Washington that specialize in intellectual property, and it's a thriving area. And we are right in the center of some incredible activity that students recognize, and I think that's that explains why there's a lot of popularity in the courses.
AKB: Yeah, and you know, because of our location and proximity to so many technology companies, UW is a great place to study.
I want to ask you one more question, and then the heaviest question of all, which I say somewhat in jest. You lived through an era when the technology industry went from a relatively small Silicon Valley world to something that affects almost every part of society today. Would you describe how you've witnessed technology litigation evolve since this case?
SM: And let me address it from the patent standpoint. In 1982, the Federal Circuit Court of Appeal was created, and that is the court where all patent cases, regardless of their location, get appealed to, and that really sort of set the stage that allows some consistency in patent law area, in the patent law area. And that allows people to innovate. Whatever they come up with their inventions, it allows the protection of the invention.
Sure, there's issues that the law you would think should have gone one way and go the other, but there is a system now that exists that started in the Santa Clara County, which is where I think most of the patents in the world are — at least certainly at one point were — applied for, and that allowed for people to come up with ideas. It allowed for people to protect their ideas, and mostly you knew the protection would allow the companies and the inventors to spend the time and the effort to come up with the ideas, knowing that at least from a from a patent perspective, that they would have the ability to prevent others from practicing.
AKB: Thank you so much for sharing the story behind the story with us, and for that heavy question that I teased earlier, Scott Mosko, do you have a Facebook account?
SM: I do not. That's something that I just never felt comfortable acquiring. Certainly, my wife has one. My three children have one. I don't think Facebook is as popular as it was certainly 10 years ago and 20 years ago. But I do not have a Facebook account.
AKB: Scott Mosko is an affiliate professor at the University of Washington School of Law, where he teaches patent law. And thank you to everyone listening to Discovery. I'm Annie Kuo Becker. We'll see you next time.
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