Fight Over Access to Log-in Credentials for Blog Does not Trigger Copyright Preemption – Insynq v. Mann

September 7, 2012 · by Venkat Balasubramani · in Copyright, Licensing/Contracts

[Post by Venkat Balasubramani with comments by Eric]

Insynq, Inc. v. Mann, 3:12-cv-05464 RBL (W.D. Wash.; Aug. 29, 2012)

Insynq is an application service provider that “provides virtual desktops and remotely hosts applications for accountants and small business owners.” Mann worked at Insynq and Insynq’s predecessor; her responsibilities included sales, support, and “writing and content development.” She signed an agreement which contained (a seemingly broad) non-compete clause, which prevented her from the following:

(1) compet[ing] for or solicit[ing] business related to an application service provider; (2) own[ing], operat[ing], or participat[ing] in employment with any entity in the business of marketing and selling application service provider business; (3) compet[ing] or solicit[ing] application service provider business from any customer of Insynq; or (4) [using any confidential information of Insynq].

While Mann was employed at Insynq, she started up a few blogs on the side (“bookkeeping in bunny slippers”; “ca4ca”; and “quickbooks in the cloud”). In February 2012, Insynq terminated Mann, and asked her to turn over the log-in credentials for the three blogs. When Mann did not turn them over, Insynq sought and obtained a preliminary injunction requiring Mann to turn over the log-in credentials. Insynq obtained the injunction in state court where it sued, but Mann removed to federal court on the basis that requiring Mann to turn over the log-in credentials triggered copyright preemption.

Insynq moved to remand, and the court granted the motion. The log-in credentials may allow someone to access the blogs and post to the blogs, but this is distinct from the right to display or reproduce the articles, which were the rights protected under the Copyright Act. In fact, Insynq expressed no copyright interest in the articles at all.

This dispute is one of many where employer and employee fight over blogs or social media assets post-termination. As Eric notes below, getting the credentials prior to termination would have been prudent.

As to the underlying merits, it’s not entirely clear that Insynq should be able to preclude Mann from blogging on the side, at least not by virtue of the non-compete it had in place. The non-compete ostensibly covers the same type of services that Insynq provides (roughly speaking, bookkeeping services in the cloud), but it’s hard to see how blogging directly competes with this. Insynq could have claimed access to the underlying content under a work-for-hire provision in its employment agreement (assuming it had such a provision in place), but as the court notes, that’s not what Insynq was looking for. I’m not sure exactly what the basis was for requiring Mann to turn over the log-in credentials and the court does not discuss the basis of the state court injunction. (If the non-compete clause is the basis for the injunction, this may preclude Mann from blogging going forward, but this doesn’t necessarily mean that Insynq should have control over the blogs.)

As Eric notes, the copyright preemption claim was a stretch. The log-in credentials provide control over the account, and are typically viewed as an intangible property right (similar to domain names). But the content itself is separate, and in the case of a blog, is subject to copyright principles as far as ownership goes.

As always, a clear written agreement is the surest route to avoiding misunderstandings, although even where there is an agreement in place, an agreement may not easily answer the question since use of the platform or account may end up being a blend of personal and professional.

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Eric’s Comments

I don’t really understand the copyright preemption doctrines, but the preemption argument here seemed pretty out-there. I know litigators love to make creative arguments, but this seemed more on the crazy side of the crazy/creative divide. I can’t imagine the lawyer actually expected the preemption argument to succeed.

If the blogs really were company assets instead of personal blogs, then the company apparently violated the cardinal rule about employee-operated social media accounts: get the login credentials BEFORE terminating the employee.

* Court Denies Kravitz’s Motion to Dismiss PhoneDog’s Amended Claims — PhoneDog v. Kravitz

* An Update on PhoneDog v. Kravitz, the Employee Twitter Account Case

* Another Set of Parties Duel Over Social Media Contacts — Eagle v. Sawabeh

* Employee’s Claims Against Employer for Unauthorized Use of Social Media Accounts Move Forward–Maremont v. SF Design Group

* Courts Says Employer’s Lawsuit Against Ex-Employee Over Retention and Use of Twitter Account can Proceed–PhoneDog v. Kravitz

* Ex-Employee Converted Social Media/Website Passwords by Keeping Them From Her Employer–Ardis Health v. Nankivell

* Court Declines to Dismiss or Transfer Lawsuit Over @OMGFacts Twitter Account — Deck v. Spartz, Inc.

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

* “MySpace Profile and Friends List May Be Trade Secrets (?)–Christou v. Beatport”