Another Questionable IP Lawsuit Over a Derogatory Twitter Account

April 28, 2014 · by Venkat Balasubramani · in Content Regulation, Publicity/Privacy Rights, Trademark

Uli Behringer is the the CEO of “Music Group,” a company I had not heard of prior to this lawsuit. Apparently ticked off at the antics of “@NotUliBehringer” and “@fakeuli,” Behringer and his company tried to get Twitter to take down the profiles and tweets in question. Twitter demurred, noting that the accounts did not violate any of Twitter’s policies.

Last week, Music Group sued in federal court, asserting a smorgasboard of tenuous legal claims (link to the complaint):

– the first thing that jumps out is that both accounts are clearly parody accounts—no reasonable twitter user would think otherwise

– the complaint contains a claim for a CFAA violation, but as the complaint itself acknowledges, the computers in question are “within Twitter’s network” (the CFAA claims, if any, are Twitter’s—Behringer is taking a page out of the handbook of the vice principal who tried to assert CFAA claims against students who created parody twitter accounts, and like those, this claim is also a loser on its face)

– the unfair competition claim talks about defendants diverting sales and profits, but neither of the Twitter accounts in question are selling or even promoting anything, other than their message about Behringer [Eric’s note: reminding me of this terrible ruling]

– plaintiffs also bring a claim based on infringement of the “Uli Behringer” trademark, but it’s unclear that Music Group (who we can only assume obtained ownership of the trademark from Behringer, who is not a plaintiff) or Behringer could claim trademark protection in the name at all; even assuming they can, this claim faces numerous other hurdles, including that there’s no use of the mark in commerce

– the complaint also asserts a claim for “cyberpiracy”—to the extent this is meant to be a claim under the cybersquatting statute, it’s a non-starter because the ACPA only applies to domain names

– interference with contract is another claim that’s tenuous at best, as it usually is in these circumstances

– the complaint contains a copyright claim, but it’s unclear what works are at issue, or that they are registered [Eric’s comment: Probably a headshot. It’s always the headshots.]

– there is a claim of course for defamation, but as with other tenuous defamation claims, the complaint does not specify what specific statements are defamatory; given case law that says context and hyperbole should be taken into account for online statements, these look a lot more like protected commentary than defamatory statements

– finally, there is a claim for breach of employment contract—by posting these comments, defendants are allegedly in breach of a provision in their contract that prohibits them from making “any disparaging remarks concerning Company’s actions, or perceived omissions . . . or otherwise take any action that would disparage or cast doubt upon the business acumen or judgment of the Company”

Oh boy.

Setting the employment relationship aside, this looks like a classic overreaction by a company to a critic. Mr. Behringer .. meet Ms. Streisand. Why on earth would your company waste your time and energy going after a couple of twitter accounts that together have .. 350 users and approximately 100 tweets?

The parodists did the right thing by making clear that their accounts are parodies. Given that there’s no commercial hook, this looks like the modern iteration of a sucks site, which (as many companies have found out the hard way) can’t be suppressed. Here, the company tries to fit all manner of claims to the conduct in question (including a copyright claim, see Garcia v. Google), but some are obviously not meritorious and others face numerous hurdles.

The company is relying on the provisions of an employment agreement, so how does this change things? For starters, the contractual provision looks similar to those that the NLRB has criticized. Second, the company is gambling here by assuming the employment agreement gives it cover. If the person posting is not an employee or can mount a challenge to the non-disparagement clause, things could get expensive for the company. Washington has an anti-SLAPP statute that’s robust and similar to California’s. [Eric’s note: Washington’s anti-SLAPP law has a mandatory “penalty” provision of $10,000 in addition to attorneys fees.] The fact that the company is going after putative employees makes for some interesting possibilities for procedural maneuvering: (1) is the company even allowed to conduct discovery to find out who is behind the account, given the tenuousness of many of its claims? (2) would the anti-SLAPP statute nevertheless apply to some of the company’s state claims?

Not necessarily an easy situation to deal with from the Company or Mr. Behringer’s side, but he should know that these lawsuits don’t often go away quietly and stand a more than slight chance of going south. I assume they exhausted all internal venues for addressing the situation. Still, I would be wary about proceeding with a heavy hand supported by legally flimsy claims—particularly because the accounts in question had meager exposure at best. I can see a federal judge thinking that invoking the machinery of the federal judiciary is not exactly a worthy use of resources to further what is either an investigation to out a rogue employee or an attempt to squelch protected speech. Given all of these issues, I’m surprised Behringer didn’t just focus on his business and move on.

Citation: MUSIC Group Macao Commercial Offshore Limited v Does, 2:14-cv-00621 (W. D. Wash. complaint filed April 25, 2014)

Creating Parody Social Media Accounts Doesn’t Violate Computer Fraud & Abuse Act – Matot v. CH

Employee’s Twitter and Facebook Impersonation Claims Against Employer Move Forward — Maremont v. Fredman Design Group

Facebook Posts and Twitter Invites Don’t Violate Non-Solicitation Clause — Pre-Paid Legal v. Cahill

Employee/Ex-Employer Lawsuit Over Twitter Account Settles – Phonedog v. Kravitz

Employer Who Takes Over Employee’s Social Media Accounts May Commit Privacy Violation–Maremont v Susan Fredman Design

Creating Parody Social Media Accounts Doesn’t Violate Computer Fraud & Abuse Act – Matot v. CH

Misguided Catfishing Scheme Leads to Discipline of College Students — Zimmerman v. Ball State

Accessing Ex-girlfriend’s MySpace Account and Posting Offensive Content Results in Conviction

Ex-Employer’s Hijacking of a LinkedIn Account Is a Publicity Rights Violation–Eagle v. Morgan

Employer Fails to State Stored Communications Act Claims Absent Allegations That Employees Interfered With Company Accounts – Castle Megastore v. Wilson

Conviction Upheld for Impersonating Dead Sea Scrolls Scholars by Sending Out Emails Signed by Others – People v. Glob