Twitter's Lawsuits Against Spam Tool Providers Could Easily Backfire

from the risky dept

It's no secret that there's a fair bit of spam on Twitter -- which is annoying -- and it's nice to know that Twitter knows this is an issue that it needs to fight. But I'm a bit concerned by the news that it's now suing spamming tool providers as well as some spammers. Going after the spammers directly for terms of service violations makes sense and they're fair game. But going after tools providers? That seems risky. I'm reminded of a very similar situation from a few years ago, in which Craigslist went after spam tool providers as well. Some of the details there raised significant questions -- most specifically in Craigslist arguing that service providers could and should be liable for actions of their users. That approach rejects the core concept behind protection from secondary liability -- something that's been quite important to tons of internet sites over the years, including Craigslist and Twitter.

I recognize how tempting it is to go after the tools providers over spam. But just as we don't blame Twitter or Craigslist for how users use (or abuse) their system, those companies shouldn't blame tools providers for the actions of their users either. At the very least, I could see it coming back (in a big, bad way) to haunt Twitter, by giving opponents in lawsuits the ability to point to Twitter's own claims against these tool providers to suggest that it, too, should be liable for the actions of its users. From the details (embedded below), it appears that Twitter is arguing that all users breached the terms of service -- and it carefully notes that each of the software providers have registered accounts -- meaning they agreed to the terms at some point. I understand why it's being argued this way, but I'm not sure it makes sense. The terms apply to that account, not everything that someone with an account does outside of the account. Twitter also claims that the spamware providers are involved in tortious interference with a contract as well as fraud and "unlaweful, unfair and fraudulent business practices" under California law.

To its credit, Twitter does not go as far as Craigslist did in its anti-spam lawsuits -- which actually tried to use copyright and trademark law, as well as claiming that violations of terms of service are a violation of the Computer Fraud and Abuse Act. Thankfully, Twitter avoids going down those paths where those very specific laws might come back to haunt it -- and sticking with slightly more defensible claims.

While I'm incredibly sympathetic towards Twitter's position here, and the goal of stomping out spammers, I still find it troubling in a few ways. Twitter can and should (absolutely) look at ways to kill spammer accounts and to block spamming tools through technological means. It's when things go legal that it could get tricky. While my heart wants them to win -- I still fear that the arguments that the service provider itself is guilty because their tools are used for spamming floats a little too close to arguments about whether or not Twitter is responsible for how its users use Twitter.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    G Thompson (profile), Apr 6th, 2012 @ 11:45am

    You either open your API to all and sundry and try to mitigate the idiots that no matter what will try to do stupid things and hope that your threat in the TOS will work (and be prepared to take legal action on that threat), or you only open your API to trusted organisations that you vet which cuts down innovative use of your product and could in the long term cause a competitor to take over your market lead.

    Think Apple v Android/Microsoft/Intel
    Think Linux v AppleOS(NEXT)/Windows/OS2

    If you open your API you can ONLY blame the people who abuse the service that the API can provide, you cannot place vicarious liability on the tool maker who was only working with what you gave them and limited in what they can legally stop people doing. Unless of course it can be proven that they knowingly told and instigated the tool usage in that way (well that's what the Napster case was all about anyway)

    If they can blame the tool maker, they can only blame themselves.

     

    reply to this | link to this | view in thread ]

  2.  
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    GMacGuffin (profile), Apr 6th, 2012 @ 11:47am

    Re:

    Lawsuit says defendants aren't using the API.

     

    reply to this | link to this | view in thread ]

  3.  
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    Anonymous Coward, Apr 6th, 2012 @ 12:01pm

    Twitter should invest in learning algorithms to go after spam, although crude today they are getting better and better.

     

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  4.  
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    G Thompson (profile), Apr 6th, 2012 @ 12:12pm

    Re: Re:

    Thats what I get for not reading things at 5am on a Saturday morning..

    Though I still stand by what I said on API's, and also if they are not using API's they would then be using world viewable protocols (ie: what a browser can do) or macro's.. And Macros should NOT be illegal to create or sell or anything else for that matter. No matter what Blizzard think (or Facebook), my macro tool for greasemonkey is a godsend sometimes.

    And no I still haven't read it, 5am - off to bed. ;)

     

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  5.  
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    Androgynous Cowherd, Apr 6th, 2012 @ 12:37pm

    Er, how example is spam even a problem on Twitter? If all someone generates is pointless sales pitches, just don't follow them. Let them have an audience size of zero.

     

    reply to this | link to this | view in thread ]

  6.  
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    E. Zachary Knight (profile), Apr 6th, 2012 @ 12:56pm

    Re:

    A lot of it is people mentioning you in a post while linking to scammy way of getting your personal information. The people behind such spam will just scan twitter for accounts and send the spam directly to them. Others will search for certain topics and spam everyone that is found in the search.

    The best you can do is report them and block them.

     

    reply to this | link to this | view in thread ]

  7.  
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    GMacGuffin (profile), Apr 6th, 2012 @ 1:03pm

    Re: Re: Re:

    Agreed across the board.

     

    reply to this | link to this | view in thread ]

  8.  
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    Frankz (profile), Apr 6th, 2012 @ 1:14pm

    While I can see Masnick's point of view, in that a tool provider shouldn't [normally] be liable for what it's users do with it, does it change the tool provider's liability if/when that tool is designed specifically to do nothing but spam and violate Twitter TOS? especially if they're circumventing the provided API

     

    reply to this | link to this | view in thread ]

  9.  
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    Stuart, Apr 6th, 2012 @ 1:30pm

    Re:

    If Twitter is successful in getting the tool provider to be responsible for the span itself. It will be bad.
    If I receive spam on my twitter account is not the tool ultimately responsible for me receiving this spam Twitter itself?

     

    reply to this | link to this | view in thread ]

  10.  
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    Anonymous Coward, Apr 6th, 2012 @ 2:48pm

    My irony meter's pegged

    Twitter are spammers. (Specifically: they send unsolicited bulk email.)

    Don't believe me? Okay. Test it.

     

    reply to this | link to this | view in thread ]

  11.  
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    Nick (profile), Apr 6th, 2012 @ 3:07pm

    Blizzard

    Is this at all similar to Blizzard's attempt to sue and shut down Glider, a program designed to cheat at the popular MMO? They appeared to be successful, as the primary and only use for it was to accomplish methods against the game's TOS. It appears to me that even if it's not a criminal case, a company ought to be able to shut down a company whose use is maliciously against the TOS.

     

    reply to this | link to this | view in thread ]

  12.  
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    Frankz (profile), Apr 6th, 2012 @ 5:35pm

    Re: Blizzard

    That was my thought, exactly, when I wrote my comment above, but then I forgot to mention it
    MDY Industries LLC v. Blizzard Entertainment
    It was actually MDY (maker of Glider) that sued Blizzard, but Blizzard won big on the counterclaims.
    https://en.wikipedia.org/wiki/MDY_Indus._LLC_v._Blizzard_Entm%27t,_Inc.

     

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  13.  
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    Drew (profile), Apr 7th, 2012 @ 1:51am

    "Craigslist arguing that service providers could and should be liable for actions of their users."

    Lets charge Smith & Wesson for every single murder with one of their firearms.

    Lets charge Budweiser for all crimes committed while under the influence of their alcoholic beverages.

    Lets charge Adobe for every single forged document made with their software.

    Lets charge one of the many owners of phone lines with every case of harassment committed over their lines.

    The owner of Craigslist is a retard and should be castrated then sentenced to death by paper cuts.

    You can't just go around blaming the makers of tools/products for misuse of them.

    If something can be abused chances are it will be. Some of the ways it will be abused can be foreseen and some cannot. It's nobody's fault but the person that's doing the abuse.

    This does not mean we censor,spy, or even discontinue the products. If that were the case we would be kicked back into the stone age technology wise and into a communistic era with zero privacy.

    We catch them when we can and we punish them. We do not punish everyone just in the hopes we might catch a few extra. We see more and more laws pass that chips away at our rights as free people entitled to our privacy. Unless we standup to fight this scum we will be forced into slavery to the system. Once that happens it will be too late to stand up.

    Fight before it happens and while it happens. Don't sit around with a thumb up your ass till it's too late.

     

    reply to this | link to this | view in thread ]

  14.  
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    Anonymous Coward, Apr 7th, 2012 @ 5:19am

    Re:

    Most of them don't rely on the API, rather they use methods to appear to be filling out forms on the webpages, just like regular users.

    I agree with you - when a tool has no other purpose than to be used to spam, there should be liability attached. Clearly, the creators of these products know that their tools are not welcome, and they continue to fix, update, and morph them to avoid having Twitter block their products. Their intention is clear.

    Twitter has limited options here, they cannot keep changing the user interface to keep defeating these companies without hurting their user experience. Yet a failure to address these spammer and the tools they use also risks harming the Twitter user experience.

    At some point, Twitter as a private company needs to be able to control their universe.

     

    reply to this | link to this | view in thread ]

  15.  
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    Anonymous Coward, Apr 11th, 2012 @ 5:16am

    Re:

    The difference too many don't mention here is: Firearms have purposes besides commiting murder, as has everything else you mentioned. There is a big difference between suing someone for the misuse of their tools, or suing someone for the use of their tools.

    If you make a tool that obviously has only or mainly negative uses, a tool for which you would need to construct elaborate scenarios to even find a legitimate use at all, then it is obviously meant to do illegitimate things. You, as the maker, know that, and therefor facilitate and enable those uses intentionally. Which is quite a difference to i.e. the mentioned telephone provider, who does not provide telephone lines for the purpose of harrasment.

    And as long as this difference is applied strictly, Twitter does not need to fear any backlash, either, as Twitter obviously has many legitimate uses and ist therefor totally excempt from the argument.

    I don't know, if the tools are caught by this, but I guess most spam tools will have difficulty finding much legitimate uses that do not fall victim to Occams Razor.

     

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  16.  
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    Anonymous Coward, Apr 12th, 2012 @ 5:11am

    It's good to see that some people "get it".

    These aren't "spam tools".They're tools that can be used for spam. I've used tweet attacks for a year and have not spammed anyone with it. I simple used it to manage my followers. It was very good, stable software with a nice one time, life time price. Now I have to use socialoomph to do the exact same thing and shell out a bi-weekly fee. Tutorials on how to do most of the functions of TA using yahoo pipes are all over google and youtube. Is Twitter going to sue them too? It's ridiculous.

    This action by twitter will not stop spam. Everything those programs did can easily be done with php, mysql and curl. And done way more efficiently than any of those "spam tools".

     

    reply to this | link to this | view in thread ]


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