Archive for the ‘Twitter’ tag

“We Don’t Care”? Maybe Kanye should…

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140 characters may not seem like enough room to really say something of value. But if Kanye West is saying something, it can be worth a lot more than one may expect. Etsy seller “supervelma” has hand-stitched popular tweets from the rapper Kanye West onto fabric, framed them, and is currently selling them for $45 each on the online craft retailer Etsy. Understandably, West may be upset that someone else is profiting off of his hard-earned Twitter notoriety, but does he have a remedy?

Copyright is the traditional form of protection for works of art. Having a registered copyright can prevent others from reproducing the work, making a derivative piece of art based on your original work, or further diluting the value of your work by displaying it. West could argue a claim of copyright infringement, however he may encounter difficulty proving that a tweet can actually receive copyright protection. Many tweets simply state facts—which cannot be protected by copyrights—or link to news articles, whose headlines are generally found to be insufficiently creative to warrant copyright protection.

It is also debatable whether a tweet like, “Fur pillows are hard to actually sleep on” meets the de minimis requirement of creativity that a copyrighted work must have. Most copyright experts agree that there is not a bright line rule about whether tweets can gain copyright protection; a copyrightable tweet would certainly be the exception rather than the norm because of the observational nature of Twitter.

West—a professional wordsmith—might be able to make a stronger argument than most that his tweets go beyond mere observations, and are artistic expressions that might even make it into future albums. Viewing his tweets as strings of song lyrics may convince a judge that his entire Twitter history, or at least some of his more introspective and personal tweets, would warrant the protective shield of a copyright.

Even without a copyright, West would likely prevail because of the use of his name and “likeness”—in the form of a hand-stitched avatar on the cloth. Most states have held that people are entitled to a “right of publicity,” which recognizes a property right in the commercial value of a person’s identity. The commercial value of the name Kanye West, and the public image he has developed, is clearly what is driving the market for these embroideries. While “supervelma” does offer customers the chance to custom order whatever tweets they would like, West’s tweets are what gained the recognition of popular website Buzzfeed and undoubtedly drove up business.

West certainly has grounds to seek an injunction to stop “supervelma” from continuing to produce these items, and depending on the state statute regarding remedies he could also sue to recover for any damages and may even be able to get exemplary damages if a jury felt they were appropriate. Public figures should be aware that the same media making them more available to fans can also provide more material for appropriation, and it may be worthwhile to increase their monitoring of retail websites like Etsy, Amazon, and eBay for unauthorized products.

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December 1st, 2014 at 1:44 pm

Posted in Commentary,Technology

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$14 Billion for 140 Characters

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Twitter is the latest tech company to pursue an initial public offering; its shares are scheduled to begin trading Thursday morning on the New York Stock Exchange under the symbol TWTR.  Twitter took advantage of a of the JOBS Act that allows companies with under $1 billion in revenue to file IPO documents confidentially while they are being reviewed by the SEC.  The IPO filing became public on October 3rd and revealed, among other things, that Twitter is seeking to raise $1 billion dollars.  The IPO filing also revealed financial information about the company that wasn’t previously available to the public.  Twitter has shown some rapid growth, with revenue rising 198% and net loss declining 38% in the last year.

The large majority of Twitter’s revenue comes from advertising.  This worries most investors, as Twitter draws smaller numbers than TV networks or Facebook.  Recent high-profile tech company IPOS have been hit or miss, which makes investors wonder whether Twitter’s performance will be more like LinkedIn, whose shares are trading at over 400% of its May 2011 IPO price, or if it will perform more like Groupon and Zynga, which are trading at around 40 and 70%, respectively, below their 2011 IPO prices.

A recent decision to raise the price range right before the IPO, to between $23 to $25 valuing the company at almost $14 billion at the high end, reminds some of Facebook’s aggressive pre-IPO strategies. Facebook made the mistake of aggressively raising the price of its shares before its IPO and issuing too many shares, which caused its stock to trade below the IPO price for almost a year.  Although Twitter did mimic Facebook’s aggressive price raising strategy, it’s still planning to sell a limited number of shares.

Many believe that Twitter is a bad investment, but the recent increase in the price range for the IPO reflects high demand from institutional investors.  Only time will tell whether Twitter will be able to survive in the long term, or if we are experiencing another bubble.

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November 7th, 2013 at 4:33 pm

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Property Rights of a Twitter Handle

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In this age of social media and social networking, Twitter has become a resource that continues to grow in importance. While still less than seven years old, Twitter is one of the 10 most popular websites in the world and has over 500 million registered users. Authors use Twitter to publish messages up to 140 characters in length to their followers—messages that can also be accessed by the rest of the internet. While Twitter is simple in its design, some complex issues have begun to arise as a result of the exposure these messages receive. One of these issues is who owns a particular Twitter handle.

A Twitter handle is the username users select to publish their messages. Who owns a Twitter handle is probably not something that most people have given much thought to when registering an account to stay connected with friends or for other similar uses. However, when an employee uses a Twitter account in connection with his or her job, who owns the Twitter handle is a very important question.

A leading case on this issue is PhoneDog v. Kravitz, No. C 11-03474 MEJ., 2011 WL 5415612, (N.D. Cal. Nov. 8, 2011). Noah Kravitz was employed by PhoneDog and one of his duties was to tweet about the company and its products. When Kravitz left the company, he simply changed his Twitter handle from @Phonedog_Noah to @NoahKravitz and kept all of his followers under the new Twitter handle. PhoneDog claimed that Kravitz was supposed to be using the Twitter account only to further the goals of the employer and thus the company should own the account. As employees were asked to maintain Twitter accounts to drive traffic to PhoneDog’s website, PhoneDog claimed that Kravitz’s followers were tantamount to a business customer list, and thus should be considered property of PhoneDog.

Using a Twitter account in connection with one’s job can give an author exposure he would not otherwise be able to attain on his own. For instance, by the time Kravitz left PhoneDog, he had amassed over 17,000 followers under his Twitter handle. While it is impossible to know for sure, it is highly unlikely Kravitz would have been able to amass such a following without his connection to PhoneDog. Yet, as the influential technology and business publication The Next Web argues, “Just because your job affords you certain amenities certainly doesn’t mean that once you leave that job, forced or otherwise, you have to give all of that back.”

Precedent certainly exists for this very argument—and we only have to look back to 2012 to find three high profile examples. Michelle Beadle, a popular sports commentator, changed her Twitter handle (from @ESPN_Michelle to @MichelleDBeadle) to keep all of her over 600,000 followers after moving from ESPN to NBC this past summer. Pat Forde, a national sports columnist, changed his Twitter handle (from @espn4d to @YahooForde) to keep all of his over 100,000 followers after moving from ESPN to Yahoo! Sports. And Darren Rovell (@DarrenRovell), a popular and influential sports business reporter, took his over 200,000 followers with him after moving from CNBC to ESPN.

Beadle and Forde even had the name of their former employer (ESPN) as part of their former Twitter handles, so a simple examination as to the purpose of the account may not provide as much clarity about ownership as one may think. Besides, as ESPN’s former ombudsman notes, “Reporters and analysts increasingly see their accounts as personal assets they’ve worked hard to build, simultaneously a clip file and a portable audience for their work.” This translates into a very valuable asset and is something “they will be loath to surrender.”

While many interested parties were keeping an eye on the outcome in PhoneDog v. Kravitz, hoping that it would establish some clear legal boundaries between employees’ personal use of social media and employers’ claim to those channels of communication, they will now have to look elsewhere for such a holding. In December 2012, PhoneDog and Kravitz settled out of court, allowing Kravitz to maintain sole ownership of the @NoahKravitz Twitter account. Alas, we must now wait for another lawsuit for precedent-setting answers.

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January 6th, 2013 at 9:09 am

Hashtags Represent the Future of the Linkable Web

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When Dick Costolo succeeded Evan Williams as the CEO of Twitter, the social network blogged about the occasion with a post entitled “#newtwitterceo”. This is an example of a new kind of link—the hashtag—and its popularity is growing rapidly. The #-symbol (a.k.a. “number sign” or “pound”) introduces the form, which precedes a term or phrase, often without punctuation or capitalization. A search for #newtwitterceo only returns results with that specific tag, far more relevant than a search for “new Twitter CEO”. Twitter encourages using hashtags in this way. They represent a new form of link for the social Web, pointing not to a specific website, but often to a larger topic or thread. Some writers have been quick to specify the hashtag’s dos and don’ts, or to discourage its use. Others have recognized its potential to attract a larger audience. New websites have been founded with the sole premise of pointing users to the best hashtags.

In 2007, Chris Messina suggested the pound symbol be used for organizing groups via Twitter, and ever since hashtags have allowed tweets to show up more easily in search results. The form underwent mission creep, and now serves many functions, the most prominent being adding additional context to a tweet. It can reveal the speaker’s tone. It’s almost like an aside, a whisper from the tweeter to the reader. For example, Mitt Romney tweeted: “Only in @BarackObama’s world is it an “economic positive” that Americans are giving up hope and leaving the workforce #clueless”. With only 140 characters to make a statement, the added context can be particularly valuable.

The hashtag has leaked from Twitter into the wider Web. Twitter has officially supported hashtags since 2009, and other websites have begun to do the same. Regardless of official support, hashtags are common on popular social networks today, including Facebook, which has led to some confusion about what exactly they mean. This has, in turn, created a niche for new services which explain the meaning behind the tags. Much like URLs, they can serve as guideposts for navigating the vast soup of content generated every day by the millions of users worldwide.

The usefulness and applicability of hashtags have brought the form beyond the Web and into popular culture. Hashtags have appeared in advertising (including the Super Bowl), Comedy Central’s Roast of Donald Trump, and as a recurring gag on Late Night with Jimmy Fallon. They can also guide professionals (e.g., lawyers) networking and researching online. Hashtags seem to fill the niche left by AOL keywords of yore. They provide an easy-to-remember shortcut—a way of connecting us through the web without unwieldy URLs. However, they are also user-generated and are capable of expressing and connecting the ideas of many. As Internet communication becomes more complex and more personal, the popularity of hashtags is likely to increase. Going forward, an understanding of hashtags will be important for up-and-coming professionals on the social Web.

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March 20th, 2012 at 2:53 pm

The Value of a Twitter Follower

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These Are My Followers

Well, I think they are, anyway.  Litigation over the ownership of a Twitter account is pending in the Northern District of California right now.  Here are the facts of PhoneDog v. Kravitz.

Noah Kravitz was hired as an independent contractor to advertise for – he appears to be have been successful, garnering over 17,000 followers.  When he quit working with PhoneDog, he changed his twitter handle from @Phonedog_Noah to @Noah_Kravitz; he kept the followers.   While phone dog sued on four grounds, the most interesting claims are those which require a damages valuation.  How much is a Twitter follower worth?

In much the same vein, litigation (Eagle v. Morgan) over a LinkedIn account is ongoing in Pennsyvlania.  The plaintiff in the case, Eagle, formed a partnership which was later purchased by Sawabeh Information Services.  The plaintiff then shared her LinkedIn account with the new company.  After she was fired, she claimed they continued to access her personal LinkedIn account, meaning they had access to her virtual rolodex.  For an in-depth discussion, see here.  How do you determine damages in the case of a misappropriated virtual contacts list?

While numerous blogs have puzzled over how to best  value these things, it does not seem an insurmountable task.  In PhoneDog they claimed each follower was worth $2.50.  Of course, they don’t explain where they got that number.  How much did they pay Noah Kravitz over the course of his contract?  Was a percentage of that contingent on the number of followers he obtained?  Believe it or not, there are companies which exist to manipulate our “social” experiences on the web.  On the link aggregation website,, each vote you purchase for a submission can cost you fifty-cents.   N.B.the bulk discount!

The valuation of this type of “property” is an interesting question, but one that does not truly pose any novel difficulties.  First – if you are worried about it, contract around it (this twitter account is ours; your LinkedIn contracts are ours, etc.)  Second, if you fail to do so and end up in litigation, look to the market for damages estimates.  It exists and people participate in it.  Certainly total page traffic, the number of unique visitors and many other things need to go into the calculation, but it can certainly be done.  Notably, this may be more difficult to do for LinkedIn contacts.  What else can you think of?


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February 12th, 2012 at 4:41 pm

Twitter’s New Country-Specific Censorship Policy: An Attack on Free Speech or a Legally Necessary Move?

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The social media website Twitter announced in a recent blog post entitled “The Tweets Must Still Flow” its plan to enact a new censorship initiative. “Starting today,” Twitter announced, “we give ourselves the ability to reactively withhold content from users in a specific country – while keeping it available in the rest of the world.” Twitter explained that the site will “withhold specific content only when required to do so in response to what we believe to be a valid and applicable legal request.” (Twitter’s message is available at
The message was met with widespread protest, with users taking to their Twitter accounts to accuse Twitter of “selling out” and to propose a Twitter boycott for today, January 28, using hashtags like #TwitterBlackout and #TwitterCensored. Angry Twitter users have framed the move as an attack on free speech and the freedom of expression.
Others, however, have praised Twitter for its full disclosure on the issue and for being upfront about its legally-mandated censorship policy. Spokespersons for Twitter insist that the move has been largely misinterpreted. They argue that the negative effects of this initiative are being exaggerated, and that in fact the move is pro-freedom of expression as it will remove contested tweets in countries where they might be illegal while still allowing them to remain visible throughout the rest of the Twitter world. (Under its previous policy, when Twitter deleted a particular tweet, the deletion was global.) Twitter representatives maintain that Twitter is actually increasing its transparency because it will inform users when particular tweets have been deleted due to requests from governments or other entities. Twitter plans to replace the contested Tweet with a “Tweet withheld” message, and to post information about country-specific deletion requests it receives on the website Chilling Effects, an anti-censorship website. This arguably represents a less “secret” form of censorship than a system where a message is deleted without acknowledgement. Twitter argues that such a policy is necessary because laws vary between countries, and that it plans to impose censorship narrowly.
Opponents, however, argue that Twitter is more than a social resource; it has in fact been an important tool in not only social but also political movements worldwide. (for instance Egypt) Twitter was, for example, pivotal in orchestrating Occupy Wall Street and the Arab Spring uprisings in Egypt. Countries lacking a democratic system, where such an avenue for freedom of expression is arguably needed most, will no longer be able to depend on Twitter. According to the Associated Press, a letter from Reporters Without Borders, an entity which advocates for freedom of press, argued that “Twitter is depriving cyberdissidents in repressive countries of a crucial tool for information and organization,” and insisted that the new censorship policy be abandoned.
The move raises many questions. For one, is it legitimate for the definition of freedom of expression to vary from one country to another? How responsive will Twitter be to requests for removal of governments, companies, or other outside parties? (That is, how will Twitter go about determining what is or is not “ a valid and applicable legal request”?) Will removals, as Twitter promises, truly be imposed as narrowly as possible? Will tech-savvy Twitter users find a way around the country-specific censorship? Is this move, as many have suggested, ultimately aimed at gaining access to countries where Twitter has been blocked (for instance, China)? Finally has, as Forbes magazine put it, Twitter “commit social suicide”?

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February 1st, 2012 at 4:28 pm

The Dead Trees Give More Shelter

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The American government continues to investigate Wikileaks director Julian Assange, more than a month after the organization first released diplomatic cables to five newspapers.  Prosecutors have yet to charge Mr. Assange, who has already weathered rumors of possible indictment while under house arrest in a supporter’s British manor.

There has been a great deal of discussion over the ambiguities of the Espionage Act, an oft-amended law originally adopted to punish protesters during World War I.  Commentators, and especially journalists, would have you know that it is a bad idea to charge a self-proclaimed editor-in-chief with a law designed to prosecute spies and government employees.  Using the Espionage Act in such a way would be an unprecedented curtailment of the freedoms accorded to the media.

But a recent revelation has brought up the more pressing issue.  Last December, a federal magistrate judge in Virginia ordered Twitter to reveal identifying information of several accountholders, including Mr. Assange and an American supporter, Jacob Appelbaum.  The original request provided for a gag order, which Twitter succesfully fought in court.  The lawyer for Mr. Assange claimed that similar requests were made of other American companies, including Google, Skype, and Facebook.  (The primary law governing internet privacy, the Electronic Communications Privacy Act, is a product of 1986, making it the same age as the hacker manifesto.)

As one Economist technology correspondent pointed out, Mr. Assange is something of a legal innovator.  He placed his servers in countries with strict legal protection, but has made every attempt to exist as a permanent expatriate, outside any legal jurisdiction.  It is possible that closing this loophole through extradition and prosecution would have a chilling effect on the press, particularly journalists who make their living trafficking national security information.

But if Mr. Assange had been distributing pamphlets or writing letters to his organization, he would have made any investigation next to impossible.  Instead, he used social media and electronic communication services provided by American companies.  In doing so, Mr. Assange was given the same legal privacy as every other American customer: which is to say, not much.

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January 11th, 2011 at 4:08 pm

Social Media and the Law

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The recently published Malcolm Gladwell article dismissing those who claim social media is both a technological and social revolution, “Small Change,” has been generating buzz all across the Internet. Gladwell’s main contention:

The kind of activism associated with social media isn’t like this at all. The platforms of social media are built around weak ties. Twitter is a way of following (or being followed by) people you may never have met. Facebook is a tool for efficiently managing your acquaintances, for keeping up with the people you would not otherwise be able to stay in touch with. That’s why you can have a thousand “friends” on Facebook, as you never could in real life.

This is in many ways a wonderful thing. There is strength in weak ties, as the sociologist Mark Granovetter has observed. Our acquaintances—not our friends—are our greatest source of new ideas and information. The Internet lets us exploit the power of these kinds of distant connections with marvelous efficiency. It’s terrific at the diffusion of innovation, interdisciplinary collaboration, seamlessly matching up buyers and sellers, and the logistical functions of the dating world. But weak ties seldom lead to high-risk activism.

While it may seem that Gladwell set up an unfair comparison to the Civil Rights Movement, it can’t be forgotten that many social media evangelists got that ball rolling. “Twitter Revolutions,” mass uprising coordinated through Twitter, are a fiction created by the Western media evangelists, as Gladwell takes the time to point out, while thoroughly eviscerating social media’s actual role in social activism in Moldova and Iran.

But what if we  take a more comprehensive look at what Twitter and other social media has done? It may not lead to the social and legal revolutions of the Civil Rights Movement, but might it be leading some other legal revolution or just law breaking under the guise of social revolution?

When civil disobedience was employed during the Civil Rights Movement, it was used to end segregationist and racist legal regimes. Activists had to actively place themselves in danger to do so. Is social media’s Woolworth’s going to be online music piracy? Anil Dash, a self-proclaimed social evangelist, cites this as one of the strongest examples of social media activism. But are current copyright regimes really comparable to Jim Crow Laws? Why do these same “activists” not commit acts of civil disobedience by taking physical copies of the same music, books and other media they are so quick to accumulate digitally?

It may come back to the strength of the ties which were a staple of the Civil Rights Movement but have failed to form online. Digital hackers and internet pirates are almost completely anonymous — ties so weak to anything they almost do not exist — and tend to use this anonymity as an excuse for law-breaking in the name of revolution.

Many of the positive benefits of social media aren’t actually inherent in social media. There are examples of Twitter leading to the arrest of those threatening violence or perverts on trains. Unfortunately Twitter gives a platform to the violent and introduces an unnecessary intermediate step toward catching the pervert. The same went for two girls who used Facebook to call for help rather than actually call for help. And the student who tweeted his way out of jail. Traditional phone calls, text messages, or other communication could have achieved the same results.

As long as anonymity is allowed to reign supreme in the digital world, it will remain easier for those with social harm in mind to meet and prosper online than in real life. The weak ties promulgate a sense that no one is really watching. As Gladwell points out, the opposite continues to be true about social activists of the more positive variety, but thankfully the Civil Rights Movement has had a much greater lasting effect than anything social media appears ready to offer up.

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September 30th, 2010 at 11:58 pm

Failing to Twitter: Assault and Criminal Nuisance?

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When teen pop star Justin Bieber‘s signing became a riot of teens on Friday around 2:30pm, police were called in to control the crowd. Unable to quickly contain the situation, they asked his label‘s VP, James A. Roppo, to send out a tweet to cancel the event and disperse the crowd.  When Mr. Roppo failed to do so, they took him into custody, reasoning that “he put lives in danger and the public at risk.”  At his arraignment on Saturday, Mr. Roppo pled not guilty to the charges of felony assault, endangering the welfare of a child, obstruction of governmental administration, reckless endangerment and criminal nuisance.

(Curiously enough, Justin’s Twitter page has a tweet at 4:30pm finally asking his fans to leave the event.)

[Via Gizmodo]

[Video clips]

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November 24th, 2009 at 12:50 pm

Twitter Sued for Patent Infringement

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Twitter has been the subject of controversy as of late, primarily regarding the content of “tweets,” Twitter’s user-sent messages.  Some of this controversy has turned into legal action.  While the highest-profile controversies involve celebrities, such as the one involving the recently-settled lawsuit regarding a Twitter impostor of Major League Baseball manager Tony LaRussa, even non-celebrities have filed Twitter-related lawsuits, such as in the Chicago, Illinois lawsuit involving a corporate landlord taking offense to a tenant’s allegedly libelous “tweets” regarding her “moldy” apartment.

Thus, it may not have been much of a surprise that the wildly popular micro-blogging service itself was hit with a patent lawsuit.

On August 4, 2009, a Texas technology company filed a lawsuit against Twitter for patent infringement.  In its complaint, plaintiff TechRadium alleges that Twitter infringes on TechRadium’s patented IRIS mass notification system technology.  While attorney George Borkowski commented in Wired “Twitter is likely to claim that the [TechRadium] patents should be voided because what has been patented is too generic,”  we will be waiting to see what consequences the lawsuit will have on the digital media world.

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August 7th, 2009 at 11:02 am