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Face It: Parting Is Such Tweet Sorrow

December 31, 2011
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We've been waiting for a case like this: a lawsuit in the U.S. over who owns a Twitter account, and over the related question of how much a social media "follower" is worth. The results of the case between mobile phone news site PhoneDog and a former worker could help clarify tricky issues around social media portability.

We wrote about this topic in June—just before PhoneDog filed its lawsuit in the U.S. District Court in the Northern District of California. Among the points of our story was that social media ownership was an uncharted frontier. More and more employees post material on Facebook, LinkedIn and Twitter—often on behalf of companies. These social media accounts are increasingly important to both parties. They allow firms to promote their brands where people increasingly gather, and they enable individual workers to establish a professional voice and show skills that could help their careers.

But exactly who "owns" the accounts, the content and the followers has been unclear. Can employees take Twitter and LinkedIn accounts with them when they leave for another firm? Company policies often are silent on the issue, while laws and court cases haven't caught up with the technology.

That's why the recent case involving PhoneDog and ex-worker Noah Kravitz is potentially important. PhoneDog claims the @PhoneDog_Noah account that Kravitz used was the company's. And, the company says, the roughly 17,000 followers of the account are worth $2.50 a month, meaning that Kravitz owes the firm $340,000 for using the account for a period of eight months after he stopped working for PhoneDog.

Kravitz, who changed the handle of the account to @noahkravitz after he left PhoneDog, tells a different story. In court documents, he portrays the lawsuit as a response to a separate lawsuit he filed against PhoneDog for allegedly unpaid wages and profits. He also says PhoneDog did not initially object to his continued use of the account and in fact asked him to send out tweets on PhoneDog's behalf after he left the firm.

Kravitz also disputes the worth of his Twitter followers, saying that PhoneDog's methodology would value Lady Gaga's following of more than 12 million people at more than $3.6 billion a year—a figure higher than the gross domestic product of some nations.

And Kravitz raises interesting arguments about account "ownership" and confidential company information. "Neither the account nor any of its followers are properties of PhoneDog," he states in a court document. "The account itself is the exclusive property of Twitter, not PhoneDog. The account's followers, on the other hand, are humans and … humans in the United States are not 'property' and cannot be owned."

I suspect the courts will view these claims as specious—since what's at stake here is account control more than ownership. But the humans-can't-be-property argument does jibe with the way that social media followers often are loyal to people rather than institutions. And it will be intriguing if the court punts the whole matter of control to Twitter itself. I'm sure Twitter won't enjoy having to settle these sorts of spats.

A hearing is set for late January.

One other provocative point in Kravitz's court documents: Twitter accounts are nearly the opposite of secret. PhoneDog sued in part for "misappropriation of trade secrets," claiming that the password to the @PhoneDog_Noah account was "confidential information" that "would be of substantial value to PhoneDog's competitors if it became known to them." But Kravitz says he created the account and password, and that the account is highly transparent. "Unlike a password to a company's computer network or server, logging into a Twitter account allows one to view only information already widely known (e.g. lists of followers that is already displayed on the account's homepage and thereby easily assessable to competitors and the tweets which are available to everyone at times)." (Emphasis in the original.)

One factor that may aid PhoneDog in the dispute is that the former Twitter handle incorporated PhoneDog's name. That's an approach suggested by Mitch Danzig, a member at the law firm Mintz, Levin, Cohn, Ferris, Glovsky and Popeo in San Diego. This naming convention may help companies prove they control social media accounts.

When we spoke with Danzig last year, he made another point worth repeating: organizations should get in front of the issue. In other words, craft explicit policies on social media portability. That way, you won't have to wait for this lawsuit to be resolved to give your managers and employees greater clarity.

Ed Frauenheim is senior editor at Workforce Management. To contact him, write to efrauenheim@workforce.com.



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