Whose Social Network Account: A Trade Secret Approach To Allocating Rights

INTRODUCTION

Imagine that you work for a law firm, focusing on a discrete practice area, say music law. One of your many non-billable responsibilities is to contribute to an industry newsletter. However, the law is changing so rapidly in your area that your articles are typically out of date the moment they are published. One day, you decide that your time would be better spent opening a Twitter account and simply tweeting the latest developments. In the casual spirit of Twitter, you write tweets that not only inform, but also entertain your clients and yourself. You make wry comments about judicial opinions and the antics of the outsized personalities in the industry. You write a little about your personal life, in part because you use the same account to keep in touch with friends and family. Within a few months, several thousand people in your industry have become followers of your Twitter stream. You and your law firm are delighted. The firm even adds a link to your account on the firm web page.

A few years later, you leave your employer to go to a different firm. To your surprise, a week after you leave, your old firm demands that you return "their" Twitter account. What to do? Who "owns" the account?

This is, of course, not a problem unique to law firms. In many industries, workers maintain popular social network accounts followed by thousands, even millions, of people. How do we figure out when the account belongs to the employer and when it belongs to the worker? Who gets the account when the parties part ways? This question has recently arisen in a spate of cases. In PhoneDog v. Kravitz, a company that provides cell phone reviews sued a reviewer for taking his Twitter account with him after he left the job.1 In Eagle v. Morgan, a former employee sued a financial service company for changing the password on her LinkedIn account and transferring it to another employee the day she was fired.2 In Christou v. Beatport, LLC, a night-club owner sued a former employee for using the password to the plaintiffs MySpace pages to advertise his new club.3

The cases have aroused intense interest.4 Approximately one billion people participate in online social networking5. In addition, more than 70 percent of companies maintain a social network presence, and the number is rapidly increasing.6 Cumulatively, employers and individuals have enormous investments in social network platforms at stake. The precedents set will affect not only these investments but also the public interest in preserving the immense benefits of social network use.

These disputes are likely the harbingers of many more to come for two principal reasons. First, social network...