twitter – Page 2 – Attorney Evan Brown

January 9, 2015 Anonymity, Defamation

Court orders Twitter to identify anonymous users

Defamation plaintiffs’ need for requested information outweighed any impact on Doe defendants’ free speech right to tweet anonymously.

Plaintiff company and its CEO sued several unknown defendants who tweeted that plaintiff company encouraged domestic violence and misogyny and that the CEO visited prostitutes. The court allowed plaintiffs to serve subpoenas on Twitter to seek the identity of the unknown Twitter users. Twitter would not comply with the subpoenas unless and until the court ruled on whether the production of information would violate the users’ First Amendment rights.

The court ruled in favor of the plaintiffs and ordered Twitter to turn over identifying information about the unknown users. In reaching this decision, the court applied the Ninth Circuit analysis for unmasking anonymous internet speakers set out in Perry v. Schwarzenegger, 591 F.3d. 1126 (9th Cir. 2009). The court found that the requested discovery raised the possibility of “arguable first amendment infringement,” so it continued its analysis by weighing the balance between the aggrieved plaintiffs’ interests with the anonymous defendants’ free speech rights.

The Perry balancing test places a burden on the party seeking discovery to show that the information sought is rationally related to a compelling governmental interest and that the requested discovery is the least restrictive means of obtaining the desired information.

In this case, the court found that the subpoenas were narrowly tailored to plaintiffs’ need to uncover the identities of the anonymous defendants so that plaintiffs could serve process. It also found that the “nature” of defendants’ speech weighed in favor of enforcing the subpoena. The challenged speech went “beyond criticism into what appear[ed] to be pure defamation, ostensibly unrelated to normal corporate activity.”

Music Group Macao Commercial Offshore Ltd. v. Does I-IX, 2015 WL 75073 (N.D. Cal., January 6, 2015).

August 24, 2013 Defamation

Lawyer’s tweet about case was not defamatory

Plaintiff sued an attorney and his law firm for defamation over a tweet the attorney posted about one of his cases that read as follows:

[Plaintiff] runs an organization for the benefit of its officers and directors, not shareholders and employees. The RICO suit was not frivolous. The 500K lawsuit is frivolous, however, so buyer be wary.

(Defenant used Twitlonger to account for the number of characters over 140.) The trial court dismissed the defamation lawsuit on an anti-SLAPP motion. Plaintiff sought review with the Court of Appeal of California. The court affirmed the dismissal.

It found that the tweet was nonactionable opinion, holding that “deprecatory statements regarding the merits of litigation are ‘nothing more than the predictable opinion of one side to the lawsuit’ and cannot be the basis for a defamation claim.” Further, insofar as the tweet asserted “[plaintiff] runs an organization for the benefit of its officers and directors, not shareholders and employees,” the attorney was stating his subjective opinion with respect to corporate governance at the plaintiff company. Accordingly, the tweet was not actionable.

Getfugu, Inc. v. Patton Boggs LLP, 2013 WL 4494952 (Cal.App. 2 Dist. August 21, 2013)

June 28, 2012 Uncategorized

Social media angle on SCOTUS healthcare decision

I’ve seen three interesting social media issues arise in the hours following the Supreme Court’s decision this morning on Obamacare:

1. Premature enunciation and the ensuing bruhaha

In a rush to report on the extremely complex decision, CNN’s website briefly stated that the healthcare law had been overturned. [Screenshot] Folks on Twitter were quick to pounce, and it still seems to be kind of flying under the radar that FOX News’ side-scrolling ticker got it wrong too. The comparisons to Dewey Defeats Truman are obvious. The picture below by @garyhe captures this notion visually.

But there are a couple important differences in modern and social media versus the 1940s.

Because of the faster means to get the word out, there is even more pressure for a media outlet to be the first. (The same kind of pressure, felt by a humble blogger like me to be among the first to analyze the issues herein is making it difficult for me to type right.) And members of mainstream media are not just competing against other mainstream media participants. As @roncoleman tweeted, “[t]he central role of @SCOTUSblog in this discussion is the truly historical event occurring today.” (@SCOTUSblog’s coverage of the decision was driven largely by the work of 81-year-old Lyle Denniston.)

And it’s easy to forget that mistakes in reporting can easily be undone. Unlike the paper in the Dewey Defeats Truman situation, which had to literally stop the presses, reset the type, print out new stacks of papers and physically deliver them hours later, the CNN website was changed immediately with little human effort. And the fact that CNN got it wrong couldn’t have harmed anyone, given that there were millions of commentators on Twitter to instantly lampoon it, thereby drawing attention to the error.

2. It’s not just law professors who can be constitutional scholars

@jonathanwpeters observed the profundity of how the discourse on Twitter had become erudite by simply noting: “June 28, 2012: the day that “Commerce Clause” trended on Twitter.” But maybe that eruditeness is just a facade. @jbtaylor gives us a warning: “Brace yourself. Everyone on Twitter is about to become a Constitutional scholar.”

3. Everyone’s a comedian and all the world’s a comedy club

Probably the best part of the social media response to the decision is the humor. Here are a few of my favorite tweets that look at the farcical side of this:

“Remember when John Roberts botched the President’s swearing-in on Inauguration Day? I think they’re all good now.” (by @johnsberman)
“I felt a sudden disturbance in the Law, as if millions of nascent law review articles cried out, and were suddenly silenced.” (by @timhwang)
“Tea Party just turned into a massive kegger as the last spare change has gone to buy all the beer left in St. Louis ‪#wow‬ (by @mimizhusband)
“Now that that’s over who wants to grab a Coke and watch some porn” – Clarence Thomas (by @platypusjones)

January 26, 2012 Anonymity

Ron Paul not allowed to find out who posted mean video about Jon Huntsman on YouTube

Ron Paul 2012 Presidential Campaign Committee, Inc. v. Does, 12-00240 (N.D. Cal. January 25, 2012)

(Hat tip to Venkat for posting a link to this decision.)

Ron Paul’s campaign — Ron Paul 2012 Presidential Campaign Committee, Inc. — sued some John Doe defendants in federal court over an offensive video attacking former (but then current) opponent Jon Huntsman. The video demonstrated a gross insensitivity toward Chinese culture, and was posted to YouTube and promoted on Twitter by a user calling himself NHLiberty4Paul.

Since the campaign did not know the true identity of the John Doe defendants, it asked the court for leave to take “expedited discovery” so that it could serve subpoenas on YouTube and Twitter. (The Federal Rules of Civil Procedure do not allow early discovery like this unless the court specifically permits it.)

The court denied the campaign’s motion seeking early discovery. It held that the campaign failed to show the required “good cause” for expedited discovery set forth in the case of Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D.Cal.1999).

Under the Seescandy.com standard, in determining whether there is good cause to allow expedited discovery to identify anonymous internet users named as Doe defendants, courts consider whether:

(1) the plaintiff can identify the missing party with sufficient specificity such that the court can determine that defendant is a real person or entity who could be sued in federal court;
(2) the plaintiff has identified all previous steps taken to locate the elusive defendant;
(3) the plaintiff’s suit against defendant could withstand a motion to dismiss; and
(4) the plaintiff has demonstrated that there is a reasonable likelihood of being able to identify the defendant through discovery such that service of process would be possible.

The court found that the campaign failed to address these required issues. One is left to wonder whether there is enough of Paul’s campaign left to make it worthwhile to try again.

October 23, 2011 Employment, Litigation

Court requires fired social media employee to return usernames and passwords

Ardis Health, LLC v. Nankivell, 2011 WL 4965172 (S.D.N.Y. October 19, 2011)

Defendant was hired to be plaintiffs’ “video and social media producer,” with responsibilities that included maintaining social media pages in connection with the online marketing of plaintiffs’ products. After she was terminated, she refused to tell her former employers the usernames and passwords for various social media accounts. (The case doesn’t say which ones, but it’s probably safe to assume these were Facebook pages and maybe Twitter accounts.) So plaintiffs sued, and sought a preliminary injunction requiring defendant to return the login information. The court granted the motion for preliminary injunction.

The court found that plaintiffs had come forward with sufficient evidence to support a finding of irreparable harm if the login information was not returned prior to a final disposition in the case:

Plaintiffs depend heavily on their online presence to advertise their businesses, which requires the ability to continuously update their profiles and pages and react to online trends. The inability to do so unquestionably has a negative effect on plaintiffs’ reputation and ability to remain competitive, and the magnitude of that effect is difficult, if not impossible, to quantify in monetary terms. Such injury constitutes irreparable harm.

Defendant argued there would not be irreparable harm because the web content had not been updated in over two years. But the court rejected that argument, mainly because it would have been unfair to let the defendant benefit from her own failure to perform her job responsibilities:

Defendant was employed by plaintiffs for the entirety of that period, and she acknowledges that it was her responsibility to post content to those websites. Defendant cannot use her own failure to perform her duties as a defense.

Moreover, the court found that the plaintiffs would lose out by not being able to leverage new opportunities. For example, plaintiffs had recently hopped on the copy Groupon bandwagon by participating in “daily deal” promotions. The court noted that the success of those promotions depended heavily on tie-ins with social media. So in this way the unavailability of the social media login information also contributed to irreparable harm.

April 15, 2010 Copyright

How Twitter’s grant to the Library of Congress could be copyright-okay

Twitter is giving a copy of the archive of all tweets from the beginning of time to the Library of Congress. The inevitable outrage has ensued. One big concern is privacy. You gotta admit it’s creepy (and evokes Big Brother) to know that all your tweets will belong to the feds.

The other outrage-catalyst is copyright, and the possible violation of the license that one grants to Twitter via the terms of service.

Venkat and I exchanged some email earlier today on this topic. What if you delete your tweets? Doesn’t that terminate the license you gave to Twitter to store and share your content? How can the Library of Congress still keep its copy if the original license has ended? Fred Stutzman has also asked these kinds of questions.

These objections seem to presume that if one were to remove his or her tweets from Twitter, the license would be revoked, and any subsequent display by Twitter would be an infringement. I imagine that’s true in relation to Twitter, but I’m not so convinced when it comes to the Library of Congress. They’d likely fall under Section 108 of the Copyright Act.

Section 108 (17 USC 108) says that it’s not an infringement for a library to make a copy or distribute a work if (1) it’s not for commercial advantage, (2) the collections of the library are open to the public or available to all researchers in a particular field, and (3) the notice of copyright in the original work remains intact or if no notice can be found, there’s a legend stating that it may be protected under copyright.

You see what I’m saying? The Library of Congress would appear to have the right to archive one’s Twitter stream regardless of any assitance on Twitter’s part. In other words, by providing the archive, Twitter is just helping the LOC do something it’s entitled to do anyway.

What do you think?

Do Twitter’s new terms of service forsake third party developers?

Twitter announced its new Terms of Service yesterday. One big issue deals with copyright ownership. This is one of the perennial questions in the law of social media: “who owns the user-created content?” Twitter nods to this issue when it states that “Twitter is allowed to ‘use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute’ your tweets because that’s what we do. However, they are your tweets and they belong to you.”

That’s all well and good. And by not being too grabby, Twitter avoids stirring up a brouhaha like Facebook did earlier this year for a little while when it claimed a very broad license in users’ content. In that situation, some pointed out that Facebook could use your content forever, even after you deleted your account. No doubt Twitter was motivated by an aversion to controversy of this sort when it decided to not claim a perpetual license.

But is Twitter being too cautious? The license it claims in the new terms of service does not specify a duration. That’s user-friendly, because such a license is probably terminable at will by the user. Under cases like Walthal v. Rusk, 172 F.3d 481 (7th Cir. 1999), Twitter would no longer have the authority to use, copy, reproduce, etc. the tweets of a user that no longer permitted such use be made. Deleting one’s account would be a good indication that such a license was being revoked. And the user could follow up with an express statement to Twitter that the license no longer exists.

Still all well and good. But let’s look at the “ecosystem” that has been nourished by the Twitter API, and which Twitter bolsters in its new terms of service. (“We encourage and permit broad re-use of Content. The Twitter API exists to enable this.”)

Third party developers can build apps that, among other things, cache users’ Tweets and make them available for mashup, organization, etc. and redisplay. These acts by the third party developer are an exercise of rights of the copyright holder, i.e., the individual Twitter user. The terms of service allow Twitter to sublicense these rights to the third party developer, so there is no problem so long as the individual Twitter user is under the terms of service.

What happens, though, in the situation we were just discussing where the individual user revokes the license to Twitter? These cached copies out there in the possession of third party developers all of a sudden become unauthorized, because Twitter no longer has the sublicensable right to allow the tweets’ copying and redistribution by others.

In such a situation, are third party developers who continue to display the content left blowing in the wind, as infringers of erstwhile Twitter users’ copyright rights?

Notice sign photo courtesy Flickr user szlea under this Creative Commons license.

July 30, 2009 Defamation

Was on CNN.com talking about Twitter

Great time today being on CNN.com Live talking about the recent lawsuit filed against a Twitter user for talking about mold in her apartment and an apparently uncaring management company. Video embedded below. (Or click through if it’s not showing up in the RSS feed).