By Mike Dorf
It now appears that the Winklevoss twins have decided to go forward in trying to undo their Facebook settlement. I haven't even seen The Social Network yet, and I haven't followed this case closely enough to hazard a guess as to whether the allegedly withheld information was sufficiently important to render the underlying settlement void. I also don't have a view as to whether this is a case of "be careful what you wish for": If the 9th Circuit voids the settlement, the Winklevosses could end up losing at trial, thus ending up with nothing rather than the "mere" $140 million they now have. And I certainly don't have a view about whether Mark Zuckerberg stole the idea for Facebook from the Winklevosses' proposed ConnectU, or whether they in turn owe part of the proceeds of their share of Facebook to Wayne Chang. But I do have a few thoughts about innovation.
1) Even if Zuckerberg didn't lift Facebook from ConnectU, certainly Friendster and MySpace pre-dated Facebook. This is a familiar story in the world of computing. The most famous example of "borrowing" of this sort occurred after Steve Jobs visited Xerox PARC, where he saw the first computer using a GUI (graphical user interface) with a mouse. Apple ran with the idea and the rest is history.
2) It's tempting to read these stories as instances of the real innovators being outfoxed by the better marketeers, but I think that largely misreads what is going on. The romantic myth of the inventor holds that a genius has a truly original idea and if he's savvy, he exploits it; if not, someone else does. But the truth is that more often innovation is a result of incremental changes produced by teams. Indeed, we often see examples of multiple, independent teams simultaneously hitting on the same basic idea for a product.
3) Part of the reason is simply a matter of certain tools being excellent for certain tasks. Thus, nature independently evolved wings as a means of flight in insects, some dinosaurs, birds, and bats. In light of that, it's not really surprising that human flight mostly uses wings.
4) In most matters of human creativity, the existing scientific and social context will often have prepared the ground for particular breakthroughs. Leibniz and Newton simultaneously hit upon the calculus, roughly two millenia after the formulation of Zeno's paradox made clear the need for a mathematical way to handle infinitesimal change. Feynman, Schwinger, and Tomonaga hit upon successful versions of quantum electrodynamics more or less simultaneously. And more generally, Nobel Prizes are routinely shared because of roughly simultaneous independent discoveries.
5) It's hard to say exactly what makes a certain idea "in the air," even when one has it. My own minor example illustrates the point. In the spring of 1995, Evan Caminker and I independently wrote papers on nearly the exact same subject: Whether, when, and to what extent lower courts ought to decide cases by trying to predict how higher courts would resolve them. Interestingly, there was at the time no recent or pending case that posed the issue in any special way; the leading interesting examples were already decades old at the time; but somehow, we both simply decided this would be an interesting topic to explore at exactly the same time. And although we did not reach exactly the same conclusions, our respective analyses were quite similar. (Caminker's paper ended up running in the Texas Law Review, while mine ran in the UCLA Law Review; because we discovered what we were up to before either went to print, we cross-cited one another.) It's possible that this was simply a matter of chance, but I have since seen enough similar pairs (and even a few trios) of articles to persuade me that there is something else going on here, and that something else is a kind of collective storehouse of ideas.
Knowing that ideas are often just "out there" doesn't resolve the Winklevoss/Zuckerberg dispute, but it does cast some doubt on the innovator/thief trope.