FanPost

Twitter Suspends @DodgersGM

"I'm not Ned Colletti, but I tweet like I am" is the tagline we've come to know from the user known as DodgersGM. Today his account was suspended. I personally am disappointed, as now there will be nobody left on the internet that will ever mock Ned Colletti. Actually I'm disappointed because it's a very good parody account with just the right volume of tweets. It doesn't spew out 50 in the course of 10 minutes, but it's also not just a once a day shot.

You might think, well doesn't he have rights? Well, the legal issues there are

  1. did @DodgersGM infringe the Dodgers' or Ned Colletti's trademarks (which will primarily ask if @DodgersGM create a substantial likelihood of confusion)
  2. did @DodgersGM abuse the Dodgers' or Ned Colletti's right of publicity
  3. did @DodgersGM dilute the brands, or
  4. did @DodgersGM cybersquat by registering a handle that should be an official account?

And if you're looking at the court case you might wonder what the 9th circuit says, and I'm on the east coast so I'll just lazily link to this law review article.

But you can't get there if Twitter has the right to suspend the account under its terms of use, which also include these rules.

It's entirely possible that I missed some instance of @DodgersGM spamming or violating some other term, and in fact the terms of service are fairly broad. The most general term is this:

We may suspend or terminate your accounts or cease providing you with all or part of the Services at any time for any reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms or the Twitter Rules, (ii) you create risk or possible legal exposure for us; or (iii) our provision of the Services to you is no longer commercially viable. We will make reasonable efforts to notify you by the email address associated with your account or the next time you attempt to access your account.

But more to the point is this:

The Services that Twitter provides are always evolving and the form and nature of the Services that Twitter provides may change from time to time without prior notice to you. In addition, Twitter may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally and may not be able to provide you with prior notice. We also retain the right to create limits on use and storage at our sole discretion at any time without prior notice to you.

Twitter probably could just arbitrarily say "screw it, you're banned" based on that. It seems unlikely, and what is more likely is that it has to do with something more specifically in their rules about trademarks, impersonation, or username squatting.
Twitter says of Trademarks:
  • Trademark: We reserve the right to reclaim user names on behalf of businesses or individuals that hold legal claim or trademark on those user names. Accounts using business names and/or logos to mislead others will be permanently suspended.
The issue here is whether @DodgersGM infringed. It looks like no for a few reasons. From the above-linked article, here are the 9th Circuit's relevant factors:

(1) strength of the mark; (2) proximity of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) type of goods and the degree of care likely to be exercised by the purchaser; (7) defendant’s intent in selecting the mark; and (8) likelihood of expansion of the product

It works against our fake Mr. Ned that the the Dodgers are a famous mark. There is also the problem of how on Twitter you could select @Dodgers or @DodgersGM as twitter feeds to read. The marks are likely not deemed to be too similar, and all we're really talking about is a twitter account. You could probably run a survey that shows that a certain portion of people who comment on Youtube think that @DodgersGM really is Ned Colletti. But what works in favor of our friendly fake is that on twitter people can figure out that he's not really Ned Colletti pretty easily (and twitter users can be reasonably sophisticated about picking who to follow), the intent in picking the mark was clearly as a parody, which is fair use, and it doesn't appear that @DodgersGM was going to do anything for commercial purposes; this is just high-grade trolling. But using the Dodgers name in there or Ned Colletti's name is essential for saying what this is a parody of. You could just say "Los Angeles baseball executive" but that could be ambiguous.

Additionally, parody is very strongly protected fair use. A large part of what makes parody work is the simultaneous message of "it is real" and "it is fake", and it helps if it's a bunch of jokes too (you could analyze the humor with Scott Adams' two of six rule, as first explained in The Joy of Work - those six elements of humor are found here). And when you invoke parody you also invoke First Amendment interests as well, interests which are important to Twitter.

I don't think it was Username Squatting at all. Here are the terms on that:

Username Squatting: You may not engage in username squatting. Accounts that are inactive for more than 6 months may also be removed without further notice. Some of the factors that we take into account when determining what conduct is considered to be username squatting are:

  • the number of accounts created
  • creating accounts for the purpose of preventing others from using those account names
  • creating accounts for the purpose of selling those accounts
  • using feeds of third-party content to update and maintain accounts under the names of those third parties

There's no reason to think that the purpose was to prevent Ned Colletti from using @DodgersGM, or having a good twitter account. It turns out that @NedColletti is already taken, but there are other accounts, and it seems like asking for the account could have worked easier. The idea was for parody, though there is a fair argument that using @FakeDodgersGM or @FakeNedColletti or @FakeDodgerFlanders or something would have worked. Now, if Colletti asked for the account and @DodgersGM said "how about $50,000" then there's a problem, because not only does that violate the rule that you can't sell twitter usernames, but also suggests you're trying to profit from someone else's name.

Of course, if @DodgersGM is a master troll with hundreds of fake accounts, that's a different story. But based on what we know, it doesn't seem like he was abusive in creating the account, and it bears similarity to the Jerry Falwell case. If there was abuse and/or an attempt to profit from the more famous mark, then that might look like the PETA case.

The strongest case for removing @DodgersGM might be in the policy on impersonation.
Impersonation: You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others

The impersonation rule says you are not allowed to cause actual confusion, even if the person who is confused is the kind of person who thinks The Onion is real. That's not where the legal standard is set, but it's reasonable to see where this comes into play. The @DodgersGM account might have posted something insensitive that someone questioned Ned Colletti about, someone down the totem pole found out it was this account, and the Dodgers complained. It's quite possible that while we might hope that the Dodgers can take a joke, there might be a fan or someone's family member who was horribly offended and thought that it was from Ned.

Now if this were just a website, different story. But again, because it's on Twitter, it is subject to Twitter's terms of use, and therefore it's at their discretion. It seems a shame, but you've got to let people have their own rules on their own site. It's not clear it was this bad, but because of the terms of use we may never know, or have the right to know.

I personally would be able to get just as much satisfaction out of tweets from the same guy under @FakeDodgersGM if necessary, and Twitter might just require that satire accounts be more obviously marked.
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