You may be familiar with Twitter, the social networking site based on status updates of 140 characters or less. One of the features that makes the service unique is the URL that it provides: since the username is included in the URL, each name can only be used once. Couple this with the fact that many corporations and celebrities have snatched up accounts and you run into a potential cybersquatting mess.

In what some are calling Twitter’s big break, Oprah joined the service on Friday. However, a quick search shows that her official account is not the only “Oprah” on the block. In addition to various accounts from her media empire, there are several Oprah impersonators, with usernames like @OprahHerself, @TheRealOprah (mimicking the name structure used by Shaq), and @Ophra. At the time of this writing, all of those impersonator accounts have been suspended. However, the obviously false @Fake_Oprah remains.

Often, the fake users are not as obvious. For example, the account in Tina Fey’s name seems like it could be real, but it has been deemed a fake. These fake twitters, for entities real and fictional, are a part of the Twitter landscape. This can make it difficult for users to tell who is real and who is not. For a social networking site, this can be a big issue–i.e., the fake Stephen Colbert user (using his actual name) has more followers than the real Stephen Colbert. Although many of these fake accounts are entertaining, the question arises: what is Twitter doing to protect against infringement of trademarks and publicity rights?

Though Twitter’s policy is clear, the practical answer is not. The relevant clause states that “[y]ou may not use the Twitter.com service for any illegal or unauthorized purpose,” which includes the various IP infringements. This implies that if you are not authorized to post in a person or entity’s name, you may not do so. However, because it is Twitter that owns the domain rather than the individual user, it is unlikely that ICANN arbitration could be brought against a user who infringes a trademark, and Twitter’s own enforcement of these rules has been fairly lax. (In addition to Fey and Colbert, the list of possibly fake celebrity profiles is a long one.) As a result, the best that can be done is to suspend the account. So far, this seems to satisfy users. However, as of right now, many of the Twitterers who would be concerned about this are already established enough on the site that this is a minor issue. (For example, it is easy to tell the difference between the real and fake Ashton Kutcher accounts based on user following alone.) But as more and more trademarked names join the Twitter user ranks, this issue will become more prevalent. If Twitter does not find a way to address the problem, it may find itself on the wrong end of secondary liability.

Update 6/4/2009: Tony La Russa, manager of the St. Louis Cardinals, is suing Twitter, alleging that a fake account in his name damaged his reputation and caused him emotional distress. At least some of his claims are based on trademark law. It should be interesting to see how this plays out.

– Steven Reilly

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4 Responses to The Internet's All a-Twitter: Am I Really Tweeting with Michael Jordan and Stephen Colbert?

  1. onlooker says:

    Agree with Steven: that PETA case applies well.

  2. Steven says:

    rebeccistan, I think that the First Amendment certainly comes into play if we’re talking about the content of these fake accounts, but that wasn’t what concerned me here. What I think is unique in the circumstance of Twitter is that, once I (not Jerry Falwell) register @JerryFalwell, the real Mr. Falwell can no longer register that account. On other popular social networking sites, such as Facebook and MySpace, there is no limit on how many people can purport to be Mr. Falwell. The same is true in the Hustler case: the magazine’s use of his name in a fake interview doesn’t prevent him from publishing under his own name.

    On Twitter, however, the limited resource of usernames makes the makes it more akin to something like the the PETA.org case (http://en.wikipedia.org/wiki/People_for_the_Ethical_Treatment_of_Animals_v._Doughney) where, even though the site was a great parody, the court found it to be an infringement. The point is that, if Twitter can’t find a way to help its audience differentiate between the real and the fake (and I don’t think that this would take any of the humor out of those fakes), it could find itself in a bit of trouble.

  3. Casey Fiesler says:

    Another really interesting IP issue with respect to Twitter – DMCA takedown for role-playing characters. http://wearesterlingcooper.com/

  4. rebeccistan says:

    http://en.wikipedia.org/wiki/Hustler_Magazine_v._Falwell

    What are your feeling on Hustler v Falwell in this context, if it it obviously satire?