Are Twitter followers fans or property? Who owns your Twitter account?
Lawsuit comes down to who has the right to exploit the attention of an audience.
If you blog or tweet to as part of your job to promote the company you work for, when you leave the company, does the Twitter account and the list of followers belong to you or to your employer?
Cell-phone information and sales company PhoneDog may help answer that if its lawsuit against a former employee (who is also suing PhoneDog for back pay) is heard in court rather than settled.
It seems like a trivial question, or would to people who don't live and die by Twitter.
Increasingly, it's not individuals, but companies whose public image grows or shrinks within a select population of heavily connected social-networking users, toward whom those companies are directing more and more of their promotional efforts.
Along with those efforts comes the complications of adopting anything new, namely the need for people who can use the technology well but who might eventually leave to find new opportunities of their own.
Is a Twitter account intellectual property?
Tech companies are used to fighting over patented designs and other intellectual property. Most companies have sales or marketing groups in which it's not unusual to see someone escorted out of the building by security after quitting or being fired, to make sure they didn't take their contact or customer databases with them.
During the past two years marketing has evolved from the science of hanging posters on the inside of toilet stalls to one in which interactive social-networking spreads like oleo on top of traditional marketing media.
Social networking lets marketers swap useful tips or updates for the customer's time, attention or contact information.
That makes blogs, Twitter feeds, Facebook fan pages, LinkedIn events and Q-and-A's and other exchanges more than just one-way communications or platforms for individual expression.
They become every bit as much a part of a company's proprietary record of interactions with a customer as call logs, support records and customer reports following a sales visit.
So when a blogger, tweeter or Facebook updater leaves the company, the personality, name, message string and all the associated good will and contact information part of the company's intellectual property, at least from the point of view of the company.
My tweets, my followers…my Twitter account
From the point of view of Noah Kravitz, who spent four years blogging and tweeting under the name Phonedog_Noah as part of his job at online phone-information site PhoneDog.com, the name Phonedog_Noah, the 17,000 followers and all the good will amassed by his own writing andthinking should belong to him.
Eight months after Kravitz left PhoneDog, according to the NYT, PhoneDog sued him to get the name and Twitter list back.
It is seeking $2.50 per month per customer in damages. Over eight months, that totals $340,000.
Aside from the unfairness of expecting Kravitz to retroactively pay for the attention of a list of customers PhoneDog apparently didn't ask for when he left the company, the suit raises questions many companies have been dealing with for years, though rarely in court.
If an employee uses a personal social-networking account to help promote the company, when that employee leaves, should the account go, too?
Maybe, if the account used the company name in it and was set up specifically to promote that company's business.
What if the account existed before the job and would exist after? Should a personal Twitter identity become part of a former employer's other assets as soon as you quit?
It seems obvious to me that accounts created specifically as part of a job and used primarily for that purpose could be considered property of the employer.
The PhoneDog/Kravitz suit probably won't provide a clear answer
Accounts created before the job, or used heavily for reasons other than work, probably shouldn't, just as your car wouldn't become property of an employer just because 90 percent of the driving you did in it was for work.
The Kravitz/PhoneDog case gets more complicated than just issues about prior ownership.
Kravitz claims the demand for reparation for kidnapping 17,000 Twitter followers is retaliation for his own claim – made in a previously filed lawsuit – for salary he was never paid while a video reviewer and blogger for PhoneDog and for 15 percent of the site's total ad revenue because he did that work while he was a vested partner in PhoneDog.
Kravitz told the NYT that PhoneDog told him he could continue using the Twitter account as long as he would "tweet on their behalf from time to time."
Kravitz changed the PhoneDog handle to NoaKravitz, kept all his followers and kept on writing.
So Kravitz isn't writing under the PhoneDog name, had permission to keep using the account and isn't using the list of followers to compete with or attack his previous employer.
In divorce or job change, how do you divide the friends?
Media companies are often successful in suits arguing that they created and should continue to own names and character of pseudonyms made up as bylines for opinion, gossip or advice columns such as InfoWorld's Robert X. Cringeley or eWeek's Spencer F. Katt, even if the writers who made the pseudonyms famous quit.
Kravitz isn't trying to hold onto the name or the PhoneDog character, however, and PhoneDog isn't suing for those reasons.
It's suing because it considers Kravitz' 17,000 followers to be a customer list of which it has been deprived.
If the court agrees, how would Kravitz give those followers back? A list of their Twitter handles would give PhoneDog back its list, but as a static set of addresses, not an active audience of followers willing to tune in to each tweet.
Transferring the account back to PhoneDog would fix that, but what about any followers Kravitz attracted in the mean time and any damage to the name he tweets under now? Should PhoneDog get those as compensation for not having asked for the account back earlier?
Should Kravitz be fined? If, as he said, he had permission to take the account and changed the name to avoid confusion with his former employer, what has he done wrong that deserves several hundred thousand dollars worth of compensation?
If the court decides PhoneDog – which has plenty of other bloggers, reviewers and other sources of content – is demanding Kravitz' account back as retribution, what kind of compensation would it have to pony up and what effect (if any) would that have on Kravitz' suit for back pay?
What about the rights of the followers, who signed up to read Kravitz specifically, not the corporate entity PhoneDog. Should they be given the chance to opt out before any division of followers?
How granular does that have to be? Do Kravitz' new followers have to opt out, or are they considered his property rather than PhoneDog's?
Do the followers who signed up while Kravitz was at PhoneDog have a choice? Or, if they're unhappy with the switch, do they have to un-follow PhoneDog and re-follow Kravitz? If they do, can PhoneDog keep their contact information to send marketing material later, or should opting out of PhoneDog's Twitter feed (this one, anyway) also count as a do-not-contact notice?
Conclusion: Big mess
There's not any clean way to make the division any more than there is a way for a divorcing couple to divide up the friends between them. Putting all the football-watching friends in one pile and football haters in another will split a lot of couples such that they can no longer socialize as a couple with either of the divorcees.
That's not fair to them, even assuming they accept being assigned one spouse or the other as their officially sanctioned friend and agree to remain on Team Spouse 1 or Team Spouse 2 and obey all the policies, expectations and bylines applied thereto in perpetuity. (Few adults would go along with that without complaint, especially if the entities reassigning the loyalty of other people are faceless tweeters rather than flesh-and-blood friends whose problems deserve a little indulgence and understanding.
Even the before-and-after question is more complicated than it looks.
Companies that expect to grow by marketing through social networks often advertise for social-media producers, coordinators or content producers with a proven ability to gather an audience through effective promotion and content. What they want is people who are already tweeting and Facebook-updating and Slashdotting and Farking and writing regularly for any other community-contribution content-distribution network.
That means they come with baggage – followers that are considered a major advantage that helps social mediators get hired. When they leave, is it fair to have all the assets they brought with them to the company have to stay behind? That eliminates one of the primary reasons the company hired that employee in the first place, making it even harder for that employee to find another gig in a job market that's going on the third year of painful constriction.
That's hardly fair to the employee, or to the audience, which would probably not stay with whatever replacement the employer chooses to take over the tweeting, probably without knowing the audience, or even the topic, well.
My inclination is to give PhoneDog a full list of the followers who were active the day Kravitz left, let Kravitz keep the account and all the followers – to avoid pissing off everyone who thinks well of either the company or the tweeter. Kravitz, and any other tweeters, bloggers or other social-media personalities, should have to give up any pseudonym or tag line or column title created for the previous employer, but face no restriction on working under their own names.
PhoneDog could own PhoneDog_Noah, for example, but not _Noah, let alone NoahKravitz.
This particular case will probably be settled as part of the case about Kravitz' back pay, wehther or not the Twitter suit is related.
Other cases – lots and lots of other cases – are sure to come up in 2012, though. It would save a lot of trouble to create a policy now that is vetted by your lawyers and that gives some benefit to the tweeters who might be leaving, though not so much benefit that you, the employer, lose out on the cost of supporting and promoting the feed or paying the salary for the person who wrote it.
Those things have value and should be given some consideration. They don't override the right of writers to write what they want for whom they want, however, or the right of readers to follow writers they like.
Lists of names might be corporate assets; the short and fragile attention of an audience, however, is an expression of tolerance or enthusiasm for a particular writer, performer or source of content. It's not an asset in even the insubstantial way "good will" is an asset on balance sheets.
"Followers" are not an audience bought and paid for by marketing promotions, direct-mail costs and loss-leader special offers to sign up.
Following a Twitter writer – for now at least – is still a voluntary expression of interest, not accession to the assumption any moment of a consumer's attention is worth money and should be paid for either voluntarily or by force.
The ownership question is more complicated between employer and employee; between writer and audience, it is as clear as the invisibly clean glass on which the snouts of birds and inattentive humans are mashed: an audience owes nothing to a writer but the chance to catch their interest.
A writer owes a lot to readers, beginning with the assurance that the content will be at least as useful, accurate and entertaining over time as on the day they agreed to follow.
Writers also owe their audiences the confidence that he or she won't drop the responsibility or sell the opportunity to write for the audience that has picked out as a favorite one strand in what has become an increasingly tangled, complex, heavy tapestry.
That responsibility will get more critical with the presumed addition of a smothering weight of legal obligations, lawsuits and belief that the attention of a thinking being is so existentially inconsequential that others can buy and sell it without regard for rights of the mind from which it comes.
Read more of Kevin Fogarty's CoreIT blog and follow the latest IT news at ITworld. Follow Kevin on Twitter at @KevinFogarty. For the latest IT news, analysis and how-tos, follow ITworld on Twitter and Facebook.