C3 Patents - Patent and Trademark Law in Lancaster Pennsylvania

Dec282011 | Steve O'Donnell

Does a twitter follow have a value? What does this mean for RT contests?

If you’re on twitter, or if you’re an employment lawyer, you’ve probably seen the story about the case to decide ownership of a twitter account. Interesting story, and one that should be kept in mind when you mix business with twitter.

The story is all over the internet, so I’m not going to hash the whole thing out here again. If you’ve been able to avoid it so far, you might want to take a look at this NYT article.

In a nutshell, Noah Kravitz worked for Phonedog and tweeted as Phonedog_Noah. When he left, he kept tweeting as NoahKravitz (you can change your twitter name without losing followers). Phonedog sued for possession of the account stating that it is a “customer list” and asking for damages of $2.50 per month, per follower (17k followers). There are a number of “facts“ I’m leaving out, because I’m sure they’re up for debate (i.e., who said what, why the account was opened, etc).

The usual headline to this story is that the case will decide if you or your employer owns your social media accounts. I don’t think it will do that. I doubt many people would think that they own an account if it was opened by their employer for the purpose of communicating with customers (which is, I hope, explicitly drafted into an employment contract, if it’s not, it should be or the business is just asking for trouble). On the other hand, I don’t think there is much of a question that if I work for a company and also run a personal twitter account, that the account isn’t the property of my employer. In those situations, there really isn’t a question to be resolved. Here, the question is closer to “whether a list of followers of an account that was associated with a business constitutes a customer list?” A contract could have settled this before it ever became an issue. Even if there was no traditional employment contract in place, the foresight to send an email and create a “paper” trail about ownership could have kept this from becoming an issue.

Enough about that, lets just say the main idea is that is should be clear from the start who owns what. What’s more interesting to me is that thought that there is some monetary value to a twitter user.

One of the things I like to roll around my head from time to time is the legality of twitter or Facebook contests. You know the ones, “everyone that Likes my page will be entered to win…” or “ReTweet this by Friday at Midnight for a chance to win…” I posted on it once before, you can read that if you’re bored.

In brief, there are contests, sweepstakes, and lotteries. Contests require skill, sweepstakes are open to everyone, and lotteries require something like a lottery ticket to enter (the legal term is consideration--some tit for tat). Those cereal box promotions, or McDonald’s Monopoly game look like lotteries because you’re supposed to buy something to get a game piece, but read the rules and you can also send away for a free entry--which is how they avoid being classified as a lottery.

Contests and sweepstakes are usually legal (there might always be some state-specific issue, so check that out before you get yourself in trouble), but lotteries are usually pretty tightly controlled by the state. I’ll let you decide for yourself if that’s so the government can run it’s own lottery as a monopoly or if it’s to protect the public from unscrupulous lotteries (the old, illegal, numbers games).

Usually people get confused about the terms, so just because someone calls something a contest, don’t assume they mean it’s a contest.

The interesting thing I see coming from the twitter-ownership case is a possible finding that twitter followers have some real value. That is a core presumption to Klout.com (and a few other “social influence” marketers) where you can get stuff based, in part, on your number of twitter followers.

If, the court states that there is some value to twitter followers, then the question of whether a “ReTweet to enter” promotion is a lottery or a sweepstakes suddenly becomes more of an issue. If there is value to a new followers, a like, a retweet, or any other social media metric, then is trading one for a chance to win something make that promotion a lottery or a sweepstakes? It sounds like a lottery to me, and running an illegal lottery is generally to be avoided, unless you’re in the illegal lottery business. On the other hand, there could be some value to a Like (or whatever), but not enough to transfer any benefit on the site being Liked. In other words, an individual Like or RT might be of such little value that it’s not worth the bother for a court to care about. Of course, if the court goes along with Phonedog and agrees that each follower is worth $2.50, that is probably enough consideration to turn these promotions into lotteries and possibly cause lots of problems for lots of people.

Now, of course, it’s probably going to require a bored Attorney General to look into a simple Facebook or Twitter promotion, but it could happen. There’s also the possibility that you’re violating the law of another country if someone in their borders “Likes” your page as an entry to your promotion. That could be a whole new circle of Hell. Even if you don’t have a legal issue because of your request for ReTweets being open to the world, you might incur more expense than you intended if someone half a world away wins your promotion and wants their prize mailed to them.

So, I haven’t really settled things here, like lawyers tend to do, so what is the takeaway? At the very least, I’d post rules for a promotion and limit it to people within the US. You might also want to limit it to people in your state or city--what is the point of having someone win your promotion if you’re a local business and they’re half the country away and likely to never actually purchase your services/products? Of course, the best idea is to hire an attorney to look at the issues and give you advice on how to structure things to minimize the chance of running into troubles.

Oct262011 | Steve O'Donnell

XXX Domains. Should you care?

XXX top level domains are coming any minute now. Should you worry that your personal or business .com is going to be registered as a .xxx and someone is going to divert your visitors? Will your mom try to visit your personal blog and wind up watching weird porn, the kind you used to have to import directly from ex-Soviet bloc countries?

ICANN, the body that oversees our domain system has opened up registration of .xxx sites. I’m not sure if the impetus for that was so that it was even easier to find pornography on the internet, or if it was that this would make it easier for individuals (or governments) to block pornography. I don’t think it matters. I also don’t think anyone is particularly thrilled at the prospect of xxx domains. I understand the adult industry doesn’t like it because the new domains are more expensive that the usual .com and there is the concern that they’ll be rounded up and forced into the .xxx pigeonhole category.

One thing that has some people concerned is the possibility that pornographers are going to register known trademarks with a .xxx domain and divert internet traffic. I personally don’t see the problem. Even .net domains are second class internet citizens and other top level domains (TLDs) out there have been largely ignored by everyone. Sure, a few people registered different TLDs, for special effects, such as Delicio.us, or for .TV sites, but for the most part, they just haven’t caught on. Most internet marketing people will still tell you to rebrand if you can’t get the .com TLD.

Let’s say, just for fun, that you own pizzahut.com. What will happen if someone buys pizzahut.xxx and posts foot fetish videos? Probably nothing really, someone searching for pizza isn’t going to pull a porn site from Google or Bing. The content of the site is still going to drive search results, not just the name. Is it possible that someone could accidentally type in pizzahut.xxx instead of pizzahut.com? Sure, I guess it’s possible, that’s a pretty weird typo though. That person is probably just as likely to accidentally type in papajohns.com.

Also, registering pizzahut.xxx is a pretty obvious trademark problem, and if someone did try to do that, it could be recaptured by Pizza Hut without much bother.

Still I guess I can see why some people might want to shut down the possibility of someone registering the .xxx version of their trademarked site, so there is a way you can do that now. For the next few days you can file a reservation request with the ICM registry. If you’re interested, take a look at http://www.icmregistry.com/ (Sunrise B option). You’ll need a trademark to do this. You can also contact your favorite registrar. I’m sure any one will be happy to have your business. If you miss the time frame, you’ll likely be able to still register it later if you want.

Personally, I’m not worried about it, and I actually have some reason to be concerned.

 

Oct072011 | Steve O'Donnell

Steve Jobs, 1955-2011

I mourn the loss of Steve Jobs.

If it wasn’t for him, well, I’m not sure if we’d still be using DOS, but I think it’s safe to say that technology wouldn’t be where it is now.

If he retired with the stack of money he had following his ouster from Apple in the mid-80s, I doubt we’d be at the point where I can hand a device to my 4-year old or to my mom, and have both people intuitively know how to use it without a long explanatory demonstration. Also, without his influence, technology would still be ugly. He realized there wasn’t a good reason tech had to be beige and that it could form the aesthetic centerpiece of a desk, office, or even living room.

Steve Jobs was also a prolific inventor and realized that patents were vital to business, especially to a company whose strength lies in innovation. He is listed as an inventor on 317 patents that range from computers and peripherals to OS innovations, and even to staircases. I’m not going to list them all, especially since the New York Times already has here. Take a few minutes to look through their list to get an appreciation of the depth of Steve’s influence.

The Times list, of course, doesn’t contain applications that haven’t yet issued as patents. I don’t know how many of those are pending, but I know we’ll be seeing Steve Jobs’ influence for years to come.