We’ve talked before about who owns social media profiles, content, etc. (see Who Owns Your Company’s Social Media Profiles, Contacts and Content?), but we had not seen much guidance yet from the courts. This may be starting to change.
In a recent case from California, PhoneDog v. Kravitz, the plaintiff, an “interactive mobile news and reviews” web company, sued one of its former employees, Noah Kravitz, when he refused to release his Twitter account to the company when his employment ended.
During his employment, Kravitz used the Twitter account “@PhoneDog_Noah” to tweet about the company and to promote its services. The Twitter account gained approximately 17,000 followers, not an unsubstantial number.
When Kravitz left PhoneDog, the company requested that he relinquish the Twitter account. Instead, Kravitz simply changed his handle to “@noahkravitz” and kept using the account (and, importantly, kept the 17,000 followers). Not surprisingly, this was not what PhoneDog had in mind.
PhoneDog then sued Kravitz for, among other things, misappropriation of trade secrets and conversion (conversion – for the non-litigators in our audience – is sort of like theft in a noncriminal context).
Kravitz, in turn, moved to dismiss the complaint. The court ultimately granted Kravitz’s motion as to a couple of PhoneDog’s claims, but the misappropriation of trade secrets and conversion claims survived. Since this was only a motion to dismiss, we don’t know yet whether the court will actually find that Kravitz’s conduct in refusing to turn over the Twitter account will result in liability. We do have some interesting insight, however, into the arguments both sides are likely to make in the case.
When discussing the issue of who actually owns the Twitter account, Kravitz argued that PhoneDog did not own the Twitter account because, according to Twitter’s Terms of Service, the account “‘as all Twitter accounts are, is the exclusive property of Twitter and its licensors, not PhoneDog.’” PhoneDog, however, disagreed and countered that it had an ownership interest in the account based on the license granted to it by Twitter to use and access the account.
Kravitz also argued that PhoneDog did not own the 17,000 Twitter followers because, “‘followers are human beings who have the discretion to subscribe and/or unsubscribe to the Account without the consent of PhoneDog’ and are not property and cannot be owned.” How philosophical of him.
PhoneDog, in contrast, took a more pragmatic angle and argued that the list of followers is the same thing as an old-fashioned customer list, in which it had “an intangible property interest.” It also argued that the list and the Twitter account’s password constituted trade secrets under California law.
As an aside – Kravitz’s arguments hearken back to one often raised in non-solicitation litigation – that customers or clients have free will and can choose where they do business – they cannot be “owned.” Of course customers can choose to do business or not with a particular company. However, companies and employees can also choose to contract away the right to service those customers – which impacts that customer’s “free will.” That is the precise purpose of a non-solicitation agreement. Companies and employees may also want to consider whether to contract about what to do with a Twitter account when an employee parts ways with the company. It certainly would have helped avoid this piece of litigation.
Anyway, the court in the PhoneDog case, held that PhoneDog had met its obligation to adequately state a claim in the complaint for misappropriation of trade secrets and conversion, but since it was only a motion to dismiss, it did not rule on any of the real substantive issues. We’ll have to wait and see how the case proceeds.
So, why do we care about this case? Well, even though we don’t get a lot of answers on the issue of who owns social media, the case demonstrates that employers who find themselves in PhoneDog’s unenviable position may have some recourse in the courts. This may have only been a motion to dismiss, but it means that PhoneDog has survived the first round and can proceed with some of its claims. We’ll keep you updated on what happens next.
Leave a comment
Teresa is the Chair of Fredrikson’s Non-Competes and Trade Secrets Group, and an MSBA Certified Labor and Employment Law Specialist. She counsels business clients on risk management and policy development relating to employee use of technology, and also litigates their business and employment disputes. Teresa trains, writes and lectures extensively on legal issues arising from business use of technology and social media.