The Legal @Animal and Twitter Account Names

(Author’s note: This post was drafted several days ago, but I was unable to post it because I needed to keep my SHRMChat post on the front/top page until today.  Last night I heard that @Animal had gotten his Twitter account name back and the issue was resolved. I am posting this anyway, because there is certainly a story – or future blog – in how and why Twitter finally relented, and this will be the backstory.)

 

One of the first things I learned in law school was IRAC.

Law school is about learning rules of law and their application to real situations through analysis. In order to do that properly, I was taught to use IRAC –  Issue, Rule(s), Analysis and Conclusion. Another student in one of my early classes added a F to make it FIRAC, because, as he correctly stated, you have to state the Facts somewhere.

So I’m turning the clock back 20+ years to pretend I am still in law school, and give you my legal take on the recent Twitter issue of who has the right to use the name @Animal.

FACTS –  Until June 19, almost 10,000 people followed a Toronto recruriter on Twitter who calls himself the Recruiting Animal (RA), and whose account name was @Animal.  He never reveals his real name on the Web, and the names Recruiting Animal and Animal are used by him for business purposes.

On June 19, something happened and RA tried to log into his Twitter account. Ultimately he determined that his Twitter account name (@Animal) had been taken, and his account had been changed to another name (@animaliaaa2). At first, the new @Animal seemed willing to return his name.

 

Ultimately, though, “Mikey”, as new @Animal came to call himself, dug in his heels and refused to give up the name. There is uncertainty as to whether he actually hacked and stole the name himself, or if there was some type of Twitter failure and he just happened upon it. Although RA sought help from Twitter, as of this writing  Twitter has refused to fix the problem, claiming that there is no violation of their Terms of Service. There is a huge amount of evidence that RA was using the Twitter account name @Animal prior to June 19, never willingly changed his account name, and would not have voluntarily abandoned it.

ISSUE – Who is rightfully and legally entitled to operate a Twitter account using the name @Animal? Who owns that account name – Twitter, RA, or Mikey?

RULE – An account name is clearly a “digital asset” under the law. Most digital assets are a mixed form asset – they have a licensing element and a property element. In a licensing agreement, the owner grants the user a license to use the asset under certain conditions, which are generally spelled out in the Terms of Service that the user agreed to when creating the account.

Under the law of conversion, one who takes and uses another person’s property (often because it has been lost or mislaid), is guilty even if the converting of the property is done without wrongful intent. For example, if you find your neighbor’s dog in your yard, and you keep it for yourself, you are guilty of conversion, even if you think you are helping the dog.

Under US law, intangible property (property that cannot be seen, touched, etc.) rights can be converted.  In Kremen v. Cohen, 325 F.3d 1035 (9th Cir. 2003), when the domain name sex.com was wrongfully transferred, a claim for conversion was held to be available against the domain name registrar.

ANALYSIS – To determine if the account name @Animal is a property right or used by license from Twitter, it is imperative to read Twitter’s Terms of Service. The TOS does not specifically state whether an account name is user-generated content or owned by Twitter, but it does say this:

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

In other words, the person who generates the content owns it (has a property right), and they grant Twitter a license to use it, according to Twitter.

Since Twitter account names are actually “submitted” by the user, as in the above description of Content, it follows that the account name is actually user generated content, owned as property by the person who created or generated it. That would make the account name property, with all legal property rights attaching to it. Twitter admits this property right by granting itself a license back to the property.

CONCLUSION – A Twitter account name is owned as property by the person who submitted it. If someone else converts that property for their own use – even if they didn’t have any fraudulent intent – they have committed a tortious or criminal act. If Twitter allows the person who has wrongfully converted the property to keep it, then Twitter is guilty of conversion as well. Mikey and Twitter have been shown ample evidence that (a) Recruiting Animal is the true owner of the account @Animal, (b) he  never abandoned the account name and desperately wants to retrieve it, as it is part of his occupation, and (c) legally, it is immaterial whether Mikey hacked and stole the account, or happened upon it innocently. Mikey and Twitter are both guilty of conversion.

Of course, despite any legal conclusion, Twitter’s feet dragging and refusal to fix this promptly constitutes a massive customer service fail.

Don’t agree? Prove me wrong in the comments. 😉

 

 

 

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13 thoughts on “The Legal @Animal and Twitter Account Names”

  1. You did not post the clause in their TOS where they state they are the owner of usernames and reserve the right to modify/change them. ‘Digital Content’ applies to tweets that the user sends. Technically, anyone who uses twitter is only ‘using’ their usernames according to their TOS.

  2. Dear anonymous.

    I didn’t post that because the TOS does NOT state they *own* usernames. If it does – please quote the specific language. It says they have the right to “reclaim” them, which is actually consistent with the granting of a property right in the first place. I would argue that the reclamation of granted property can’t conflict with the grant of a property right elsewhere in their TOS. Which clause prevails? The property right.

    Twitter may have thought that digital content only applies to tweets, but I don’t think the language of their TOS states that. And case law is clear that it can be broader.

  3. Also, anonymous, I might argue that reserving the right to reclaim an account name is consistent with allowing Twitter to restore names to their rightful owners in cases like this.

  4. I don’t know the circumstances of how you got your name back, but I still maintain that this was a massive customer service fail, despite any legal issue. If there was even some doubt about the availability and use of the account name @Animal, I might be more forgiving.

    I know Twitter is a free service and everyone’s hands are tied to the TOS – but I would be really concerned about using Twitter for business purposes after this debacle. Who’s to say they won’t yank my business name right out from underneath me?

  5. I think this is a great example of how many (of us) are building our houses on a (virtual) foundation of sand. Linkedin for many is their bread and butter. Others rely on Twitter or one of the dozens of other popular (today) sites.

    Any/all of these places can dry up and blow away leaving the user community high and dry.

    Glad to see you got your identity back Animal.

  6. I know that you have been vocal about the recruiting community’s over-use of social media, Jerry, and this is a great example. But it is very, very hard to avoid, as Animal points out.

    It will make me pause and think the next time I speak to HR about using SoMe for recruitment purposes. Maybe it will become an example for the advocation of always taking it to the person-to-person level, even if the initial contact is on SoMe.

  7. I’d be more concerned about someone assuming my identity and/or doing things in my name. That said, what’s the difference between: justjoan and justjoan47 or @animal and @animaltoo? I am not big on Twitter; but agree it’s a customer service failure.

  8. If you think of it in terms of trademark law, Joe, you would see a big difference. People like Animal (and me!) spend a long time developing ourselves into a personal brand on the web, just like Campbell’s Soup. Campbell’s Soup has a huge investment in their name and in their trade dress (like the red and white can), because people have come to expect a certain product when they buy Campbell’s Soup in a red & white can. If someone comes along and sells Campbelli Soup in a red & white can, consumers will get confused.

    I have been using my name – and nothing else – on my web accounts for as long as there has been a web. When people interact with me for 5 years as JoanGinsberg – they have expectations as to who I am and what I do and what I will say. If someone came along tomorrow and stole my Twitter name and started posting as JoanGinsberg while I became joanginaaa2, I would be crushed, because the almost 4,000 people who follow JoanGinsberg will be deceived and/or confused. In that sense, it IS stealing and identity or doing things in my name.

  9. GirlGeeks woke up one morning and found that twitter had taken away her name. Someone else claimed it and Twitter sided with them. That shows who owns the name. Twitter does.

    She got her name back because the original GirlGeeks was able to mount a publicity campaign against the new owner and since the new owner was a business she didn’t want all of that bad publicity.

    The thief who stole my name didn’t care about bad publicity so I could not use that as leverage.

  10. Animal, the fact that Twitter sided with whoever took GirlGeeks doesn’t legally “show” anything. That was the point of the sex.com case. The domain registrar moved that name to another user and ended up losing in court. Of course, that was worth the court fight due to the big bucks involved.

    That said, I think the story now is how you got your account name back. You claim Twitter didn’t do it – so who did? Did you pay off Mikey? It’s your story and you don’t have to say, but we’re all incredibly interested in you. 😉

  11. I have also found that several people are using the name of animal for making them as their twitter account name. This is for making discussion on the topic related to animal.

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