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Dean Collins sells a desktop software application called My Twitter Butler. By all appearances, it's pretty spammy. It enables Twitter users to auto-follow other users based on keywords they use and permits the mass-sending of DMs to followers.

Twitter doesn't like My Twitter Butler and Twitter's high-powered Silicon Valley law firm, Fenwick & West, sent Collins a letter demanding that he "deactivate" his website, transfer the MyTwitterButler.com domain name to Twitter, stop using the My Twitter Butler name and begin complying with Twitter's Terms of Service. Or else.

Good on Twitter, you might say. After all, the amount of spam activity on Twitter is growing and it's coming in many shapes and forms. It's annoying to just about everyone (except the spammers) and defeating it is crucial to Twitter's success going forward.

There's little question that Collins' use of the My Twitter Butler name puts him on shaky legal ground. And it's pretty obvious that the application he sells does permit its customers to engage in behavior that's forbidden by the Twitter Terms of Service. I certainly won't shed a tear if Twitter bans users who are employing My Twitter Butler in less-than-savory ways.

But Twitter's handling of Collins is troublesome and it's increasingly apparent that Twitter is approaching IP and developer issues in a "we're going to have our cake and eat it too" manner.

First, while Twitter, Inc. does hold a trademark registration for 'Twitter' and Collins almost certainly has limited grounds on which to defend himself against a trademark infringement suit, Twitter freely lets other services that it apparently has no qualms with use the word 'Twitter', both in product names and domain names. Examples: Twitteriffic, Twitterholic and Twittercounter amongst many others. Twitter even promotes Twitteriffic prominently.

The problem here is that in the United States the failure to aggressively prosecute trademark infringers can result in the weakening of a trademark or in some cases the total loss of trademark rights. So by that standard, one would think that Twitter's attorneys would be advising it to treat anyone using the 'Twitter' mark the same. But that's not the case. Twitter doesn't at all seem interested in protecting its trademark, defending against infringement wherever it occurs. Rather, it seems to be using its trademark to hit back at individuals and companies that run afoul of its Terms of Service and corporate tastes. Haven't other corporations been called 'evil' for similar legal shenanigans?

Which gets to the second point: Twitter's odd relationship with developers. Here, Collins has developed an application that is, in my opinion, most likely to be used for spammy purposes. But given that it's a desktop software application that enables its users to run afoul of the Twitter Terms of Service, the question becomes: is Collins violating the Terms of Service or are his customers violating the Terms of Service? Where is the line drawn? Couldn't other powerful Twitter clients be used in an abusive manner?

At a higher level, Twitter's strong-arm tactics raise serious questions about Twitter's platform strategy. In the absence of some sort of formal relationship with developers or an App Store-like bureaucracy, Twitter should have the means to effectively enforce its Terms of Service at the platform level. There are simple approaches (eg. more effective API limits) and more complicated approaches (eg. detecting the signatures of API abuse) for accomplishing this. In all cases, applications and users violating the Terms of Service should be banned without the need for high-priced attorneys.

The bottom line is that Twitter risks a lot by trying to have its cake and eat it too. It's hard to take the company seriously when it threatens one developer over his use of the word 'Twitter' in a product name but actually promotes another product that uses 'Twitter'. If Twitter is going to finally defend its trademark, it should defend it across the board on legitimate grounds; it shouldn't use it as a tool to threaten developers it doesn't like. And when it comes to its platform, Twitter would instill a lot of confidence by showing developers that it's capable of stewarding an ecosystem in which the Terms of Service can be enforced by someone in the IT department, not someone in the legal department.

Photo credit: JoshSemans via Flickr.

Patricio Robles

Published 14 August, 2009 by Patricio Robles

Patricio Robles is a tech reporter at Econsultancy. Follow him on Twitter.

2392 more posts from this author

Comments (3)

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Rufus

Does twitter butler really breach Twitter's terms of service? As I understand it it allows it's customers to use it to potentially breach the terms of service, but that is a different thing.

If I sell big sticks it enables my customers to break the law of the land by going out and hitting people over the head. That does not mean I am prosecuted for assault. Clearly there are differences around some weapons like guns, but they are included in the terms and conditions (laws) of the country where I live.

As I understand it MTB allows users to send messages to their friends that will not scroll off (direct messages are not lost so easily as time passes). When sending out, for instance, the details for a party this seems like a good idea. It is capable of use which is not abusive. I can see that people abusing it are breaking terms and conditions and should be dealt with, but not MTB themselves.

I was once involved in a patent for a web analytics product and got an objection from the patent office that it could be used for privacy invasion and therefore was immoral and could not be patented. Now web analytics is used by everyone and is seen to have sensible uses. Times change and not everyting that can be used to do bad things is inherently bad.

In the UK one of the main objections to using trademarks is passing off, which MTB is clearly not doing in their use of the word twitter. As the word existed before the trademark I am dubious about the extent to which twitter can own it even in the US. Certainly if they are being defrauded or defamed they should protect their brand, but as Patricio says above they should be consistent in how they do that.

In essence I think i am simply saying Twitter should not be demanding the deactivation of what looks like a useful service. Anyone looking at my tweets (@rufusevison) will see I do not spam or promote any particular product but I think in the future I could find twitter butler useful. If I do have the need I would like it to be there so that I can use it.

Rufus

P.S. We got the patent in the end but we had to argue to show it had a legitimate use.

about 7 years ago

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allrise

What do u think about the case Twitter VS. My Twitter Butler? Its now being debated at AllRise court. Join to judge http://bit.ly/AllRise228

about 7 years ago

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Mark H

Excellent post. I agree that twitter should review their tactics. Their current course will only hurt them in the long run.

about 7 years ago

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