(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.