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TWiT is suing Twitter, alleging breach of contract and copyright infringement (techcrunch.com)
113 points by gotenyama on Jan 17, 2018 | hide | past | web | favorite | 90 comments

For reference, this is the "contract" which TWiT are arguing. It's a reply from Ev, to an e-mail from Leo. The full contents are at the bottom of the filing[1].

>Just got your letter. Don't worry: We're not expanding to audio or video under the Twitter brand. That news story was the result of an over-zealous production company (and extremely sloppy reporting by AP). See our post: http://blog.twitter.com/2009/05/were-not-making-tv-show.html

There's a world of difference between "we are not" vs. "we will not". I am not eating a sandwich right now, but I will most definitely at some point in the future. One would have to be a fool to interpret this as an agreement to never expand into audio/video in all of perpetuity. Furthermore, Twitter's own trademark filing (since 2007) lists "video and audio" as part of the goods and services provided by their brand. Perhaps this argument should have been made in 2007, or when it was published for opposition (which is basically the USPTO's way of saying 'hey, if you are concerned about this trademark infringing your rights... speak up!') in Feb of 2008 (however no such filing was placed according to TTAB's records), not 2018.

[1] https://www.scribd.com/document/369311229/TWiT-vs-Twitter

"Copyright infringement" is not "trademark infringement" and shouldn't be in the title.

How is this any different from patent trolling? Nobody confuses TWiT for Twitter, or vice versa. I don't think TWiT should be in a position to make money off Twitter's entry into video, just like some random patent troll shouldn't be able to monetize ludicrous patents

The difference is that somewhat haphazardly, Ev created an oral agreement and then confirmed the existence of the agreement in an email stating that Twitter wouldn’t violate it. There’s now a paper trail saying that Twitter wouldn’t do this, and that basically confirms that at minimum a breach of contract has occurred.

Patent trolls wait forever to take action on patent use only after a company gains susbstantial profits. On the other hand, a good example of patent enforcement would be initiating legal action at the first sign of infringement — before profits are made.

For the contract to be valid, there needs to be "cause" for confusing TWiT with Twitter. Most people would agree that there's no cause here, voiding the "contact"

From TFA: "At that time Williams, on behalf of Twitter, acknowledged the confusion which likely would arise from the use of TWITTER in the marketplace, as well as instances of actual confusion which already had arisen."

It doesn't matter what "most people would agree" if the defendant themselves are on record acknowledging the problem.

I've never heard anyone confuse Apple (The computer company who sell music) with Apple (The record company founded by the beatles), yet you'd be a fool to not see the problem in the overlap when Apple were on contract saying they'd only use it in the computer industry and then started venturing into the music industry.

I would say the great majority of people would think Apple Records is part of Apple music.

> there needs to be "cause" for confusing TWiT with Twitter. Most people would agree that there's no cause here, voiding the "contact"

Meanwhile, Leo Laporte has had people asking him for almost a decade if TWiT is related to Twitter. The marketplace gets confused more easily than you believe. And a founder will get inundated with this confusion when it is about a company as well known as Twitter.

Totally agree, this is a case of "intellectual property gone too far". Twitter didn't become big because of riding on the back of the TWiT trademark, and if people have heard of TWiT, no one confuses it with Twitter.

It's usually the case that the property owner is some big multinational company (like Disney or something) and the supposed infringer is some small artist. This time, it's reversed: Twitter is the 900-pound gorilla and TWiT is the plucky underdog. But the principle is the same, this is an absurd lawsuit only possible because of the modern legal system's screwed up obsession with intellectual property.

Part of keeping a trademark valid is the owner's work to enforce it. If Laporte does nothing, he risks having his trademark slowly overrun.

I am not so sure. I have see Leo claim that people have asked if twit was related to twitter and searching for twit on twitter shows people referring to twitter as "twit." https://twitter.com/search?q=twit&src=typd

> Nobody confuses TWiT for Twitter, or vice versa.

It's been a nightmare trying to play TWiT on my Google Home Mini. I tried asking it "Play TWiT Live on iHeartRadio", and it replied "I looked for Twitter Live on iHeartRadio, but it either isn't available or can't be played right now". I get a similar response to "Play TWiT Live on TuneIn", though it usually turns that one into "Tweet Live".

There is no patent involved. This is why TWIT doesn't make the same claim towards/against Netflix.

Feels like shake-down-waiting-to-happen more than cease-and-desist case.

A trademark is more precarious than a patent. If you don't defend the trademark in a timely manner, the infringer can make a laches defense. Unchecked infringement - however minor - can also cumulatively damage the distinctiveness of the trademark, making it more difficult to defend against future infringement.

The "Trademarks must be defended" and the "yell fire" concepts are the 2 most over stated and misunderstood legal topics on the planet.


>>Quite simply, the view that a trademark holder must trawl the internet and respond to every unauthorized use (or even every infringing use) is a myth. It’s great for lawyers, but irritating and expensive for everyone else. And when done clumsily or maliciously, it chills free expression.

>>Nobody confuses TWiT for Twitter, or vice versa

I would not be so sure on that, atleast not when it comes to legal confusion. After all no one Confused Apple the computer corporation, with a Grocery Store that used a Apple as a logo, yet Apple the Computer Corporation used market confusion to squash their logo....

I must admit, i am more likely to confuse them with Twitch than Twitter. Never mind that i had actually forgotten who they were at first.

About time i made a new company!

I think i'll call it Twicflix.

On a related note TWiT!=Twitter, just like app!=Apple. Where is the legal case here?

The legal case is that Ev, the CEO of Twitter at the time, confirmed the existence of an oral contract that precludes the two companies from crossing domains. Breach of contract.

Wouldn't there have to be some kind of consideration for it to be a valid contract?

Not getting sued counts as a consideration. Remember TWiT is a much older company.

On a related note - it turns out that he's been running the New Screen Savers show for a while now - didn't even know about it. Happy memories watching the original show - I'll have to give this a try.

Oh, and some of the old team pop in Kate Botello, Patrick Norton, etc.

So there's one benefit to suing Twitter - it gets your name in the media again and all of us old timers can reminisce and catch up on the new series.

I watched the first ~30 episodes and honestly tried to love it, but I couldn't do it. These days I find Leo so insufferable and conceited that not even my nostalgia for TSS can save the new show.

If they spread the role of hosting around more like they did back in the day I would love it. But most episodes didn't feel like TSS, they felt like The Leo Show with Leo Laporte starring Leo Laporte.

What we liked about The Screen Savers and ZDTV/TechTV in general was that it was the first time somebody was actually talking to a wide audience about the computers, the web, and gadgets. It was ice water in a desert.

Now, there is no premium on tech content. One no longer needs to seek out Leo Laporte to hear what’s going on in tech or roundtable discussions about it.

I find Leo seems to come and go with being annoying. You can tell when he's stressed or something in the background becomes he gets really awful. I kind of wonder if it would be better if he were in front of the camera a bit less in an overall sense for the network.

It also highlights what a one-man-band is TWiT: It depends heavily on Leo Laporte being a first tier broadcast media professional. Because Leo can't or won't hire a second person of his skill level as a radio voice, if there is anyone like him available at any price, TWiT doesn't scale.

Moreover, most people are increasingly used to internet-first voices in the media they consume. You don't need to be able to hold forth for hours without an "uh" or a misplaced breath to have a hugely popular and highly remunerative show. And, on top of that, while podcasts are thriving, video is thriving even more. "Video natives" are the best paid people you've never heard of. TWiT is in danger of becoming a relic.

He hired Tom Merritt to do a daily tech news podcast a while ago and he did a fantastic job, but Laporte didn't renew his contract after Merritt moved because he wanted someone in-studio.

I've stopped listening to TWiT network shows since. Not out of resentment, but because I just got tired of Leo.

I used to listen to TWiT within the first few year. It just sounded like a few people chatting about something they were interested in, and that was really compelling compared to the dullness of television. But it has become much more like an old fashioned TV station which I just don't like. And the network is not really needed when people can promote themselves on Youtube and other social media.

Seems like Laporte has a solid case with lots of documentation. He'll need it facing twitter's legal army.

They'll probably just have to pay licensing fees (as Apple does to Cisco for iOS and "iPhone" or to Apple the record co.) Legals can't just make trademarks go away.

Either way, should be interesting to see the resolution to this.

That’s probably a very acceptable outcome! It’s been years since I followed Twit and similar video content, but it was a big part of my “nerd upbringing.”

I know there's a show called This Week in Tech, but do people actually call it 'twit'?

I’ve always referred to their entire network as TWiT. If memory serves me correctly, all their shows (not just This Week in Tech) used to begin with a bumper that said “Netcasts you love, from people you trust. This.....is TWiT.”

They still do. Here it is at the start of this week's MacBreak Weekly episode (at 24 second mark):


They actually do, yes. Source: Listened to many Leo Laporte podcasts over the years, but stopped a couple of years ago, due to the noise/ads to content ratio.

I used to listen to TWiT but signed up for Audible based on their recommendation of the service and I stopped listening to podcasts and listen to audiobooks!

It's like saying: I stopped reading newspaper, and read novels only now!

Even though they share the same channel (text, audio, etc.), those are not replaceable things. Or at least that's my opinion.

TWiT is the network as a whole. This Week in Tech is just one show (the original show?) on the TWiT network along with Windows Weekly, Security Now, etc.

I've always called it TWIT.

Which is also the name of the network, which has a bunch of other shows besides TWIT.

Yes, we do actually call it TWIT

Not sure. William stepped down from CEO and is only a board member. Unless I am wrong, since there is no formal contract ever signed, then this implicit, informal contract/agreement may be null after William’s resignation.

Consider the following scenarios:

1. Suppose there was a board meeting in which William had voted No on the expansion, since thr majority ruled in favor of the expansion, could plantiff now argue the new management was aware of this implicit agreement? Had William ever shared this information with anyone else?

2. If not, and if the board and the CEO were not aware of this implicit agreement until recently - whether William had forgotten about this whole agreement or not, then is Twitter obligated to honor this implicit agreement?

It seems Twitter should honor the agreement because William represented Twitter when he made that correspondence. However, it is not uncommon for one CEO to write “We do not have a plan to sign a contract with your competitor yet”, then after his or her resignation, the new CEO can join force with the competitor. That’s perfectly legal and has always been done before. If a resturant owner said “I will never stop ordering wines from you”, then the new owner doesn’t have to honor this causal “promise”.

Let’s see how the court takes this case.

You may be right on these specifics (and I'm sure Twitter's lawyers will spend hundreds of hours searching through all the possible permutations), but on the other hand, as long as someone is acting in the capacity of a corporate officer with duly appointed authority, and makes an agreement in that capacity, then the agreement binds the corporate entities. Whether that officer then informed other members of the company may not really be material here.

Just ask yourself whether this would be a good general policy: corporations get to escape contracts if their exec promises something and then leaves, or they just 'conveniently' forgets to inform other execs. In that world, how can any two corporations agree on anything?

Note that if an exec really does enter in a huge future liability and fails to inform the corporation, the usual way it should be resolved is the corporation is still liable, and then the corporation sues the former exec for failure to execute duties properly, with the sudden unanticipated liabilities going towards proving damages.

Except an agreement isn't really the same thing as a contract. For a contract to be legal, there has to be "consideration". I'm not sure if anything qualifies as consideration in this case.

Allowing use of an existing trademark is a form of consideration AFAICT, although I'm not a lawyer.

Yes, you could be right there. Although a bit sticky since it is only a similarity of names and not actual usage of "TWiT" that Leo allowed them to continue with.

Well clearly Twitter should just acquire TWiT and turn the platform into their own talking head political commentary network.

Leo must be running into hard times. Usually this sort of move is a play when your main business isn’t thriving.

Seems like a legitimate trademark defence.

Twitter have gone lumbering into Leo's registered trademark class: "IC 041. US 100 101 107. G & S: Entertainment in the nature of visual and audio performances, and musical, variety, news and comedy shows."

What do you think they'd do if he started a microblogging service under the TWiT name?

Ha. Leo has been talking about this for a long time, bringing it up here and there and various shows. He tends to not get that sympathetic of an ear from his own co-hosts, nor do I have much sympathy. The amount of confusions that arises is probably minimal and is an issue that exists primarily in his own head.

I also noticed that in the linked complaint, TWiT still insists on calling their productions "netcasts" instead of podcasts. The market isn't similarly confused over requiring an iPod to listen to podcasts, Leo...

When twitter was new and fresh, I could see this happening... there was a time when more people had heard about TWIT than twitter... but those times have changed, now I'd assume it's many orders of magnitude that people have of twitter and no clue that TWiT exists or has ever existed. Maybe twitter could just buy them out and make them a part of the core service somehow - everyone can get money and press and benefits. Guess the lawyers make money either way.

Just curious, if he loses this, in what range would the monetary costs that he'd have to shoulder lie?

Most likely nothing more than his own legal costs. The suit would have to be considered frivolous to get anything and the publicly available data already shows that Laporte has plenty to go on.

Obvious attempt at a cash grab, as nobody is following Leo Laporte's productions. TWiT uploads on YouTube often have a few hundred views after months, nobody would confuse this tiny little podcaster with Twitter the social network.

does anyone remember the name of the alternate microblogging platform leo laporte was using when this first came up ~ 10 years ago? I remember one episode he just gave in and used twitter.

All of them. He flirted with them all. Jaiku, Identi.ca, App.net, etc. He was always trying to find an alternative. I've been listening on and off to him since my first iPod, so over 10 years. As each new one came out he jumped on it. He was the same with Android/iOS and Windows, Linux and Mac OS X.

I think it was Pownce, as Kevin Rose co-founded it and he was associated with Tech TV all the way back to 2002 (I think). Blast from the past...

He really pushed identi.ca, there was a nice community there back in the day. It became a bit of a refuge from the noise on twitter. I had my identi.ca account in my sig file up until a couple of years ago. But I have largely lost interest in any of the social media platforms though I use twitter from time to time.

I think he tried a few, but the one that I remember him saying that he liked the most was Plurk.

This page shows the UI, at the time, pretty well: https://readwrite.com/2008/06/04/plurk_unique_or_just_anothe...

Jaiku. It was bought by Google and disappeared because of Google+

Jaiku or Pownce?

This is so weird. There has to be more to the story than this. Hardly anyone in TWiT's demographic would confuse it with or prefer it over Twitter.

Leo laporte is not a cool guy.

I've been listening to some of his podcasts but narrowed it down to only SN. On his other podcasts I get news that I have already picked up here (days earlier). I remember that the drop that did it for me was some guy on his M$ podcast 'commanding us' to be good slaves and shut up about the M$ excessive and intrusive telemetry because if M$ wants something we should just shut up and comply.

Leo also tends to invite people who cannot speak, they "erm" every two words, and I also remember a lady saying "like" like every other word, like you get my point, like go see a speech specialist, like you get me.

One more point on the "not cool", two years back he made a switch from having an opinion on things to just sucking up on everyone (good and/or bad). I think that ad slowed down so he changed his tune.

I like Security Now. And when Fr. Robert Ballecer is covering for Leo I simply love it. Leo is a little clueless on the hard issues, and Fr. Robert can milk more info out of Steve and go to more in depth discussions. Too bad he's leaving the network...

Exactly right. I stopped listening to SN, because Laporte being on auto-pilot for 90% of each episode does not make for an interesting conversation.

There's a silver lining to his absentee hosting style. When I'm skipping past a commercial (hitting the +15 button), I know that I can keep hitting it until I don't hear his voice anymore. He's basically only there to read the ads.

What I hate (and it happened in the most recent SN) is when Steve explains something then Leo asks a question about the thing Steve just talked about. At least try and pay attention.

I agree! I really like the back and forth between Fr. Robert and Gibson, it feels a bit more dynamic than Gibson and Leo. Leo never seems to have read as much into the topic before the podcast (and perhaps so since he is in so many netcasts on the network).

According to one of the things Fr. Robert said on air, they're making a studio in the Vatican. Perhaps we'll still see some tech talk coming from him once it's done.

Ever been on radio? you'd be surprised how often non professionals say um,er when you listen to your self after the fact

Care to elaborate? I never got too into his shows, but he never seemed particularly uncool to me.

I was a fan of Leo from back in the zdtv days but over the last year I've had enough of him and don't watch anything he does any more. Reasons include his constant use of "funny" indian and russian accents, constant on air sexual "jokes" to and about female guests (he once admitted on air that Kate Botello filed a complaint with HR about him back in the techtv days and Shannon Morse and Sarah Lane have both made a #metoo post which many believe to refer at least in part to Leo), and other things like his inability to be on time for his own shows (he has even been late for his radio show more than once), total lack of preparation for shows, spending tens of thousands on vacations while complaining about how expensive it is to pay his employees, and turning on former cohosts like Tom Merritt, Brian Brushwood, and Justin Young.

I don't mind the rest of it so much but I have to agree about the sexual joking around with his female cohosts. They are clearly uncomfortable, it's palpable. And he KEEPS DOING IT. I would give him a break once, maybe twice, but it is persistent in some cases to the point where it's borderline harrasment - and that's what we can hear on air. Who knows what happens when we are not listening.

It's a good reminder to those of us who assume otherwise that otherwise perfectly intelligent, rational and seemingly polite and reasonable people can be completely blind to this sort of thing.

Wow, yeah, that's pretty uncool. Thanks for filling me in.

Biased but some context: totaldrama.net

That just looks like a website made by a hateful obsessive.

I think the site is run by an ex-employee. There is a lot of drama about nothing, however there are some cases were Leo is clearly not a "good" person especially when it comes to how he treats his employees.

Don't bother. his (simooo) opinion is no more valid than anyone else. Not coincidentally anyone can see Leo puts out original content for a very long time. From the beginning. No matter what I hope he always is able to keep doing it.

Not opinion. Facts

The way he treats his female guests/co-hosts.

Accidentally streaming his private porn habits repeatedly.

Would you mind elaborating? As a long time viewer of Twit and several umbrella shows, I'd love to find out more.

Showing his ding dong on the video feed, revealing his porn habits, talking very unprofessionally to female colleagues

If TWiT wins do they have to take over Twitter? Seems like a sneaky way for Twitter to get a full-time CEO.

I find it quit nonsense. And moreover, why don't they sue twitch then too in the first place?

I upvoted because Twitch is a really interesting case. The Levenshtein distance between the trademarks is closer, and Twitch is pretty much entirely focused on video, which makes it encroaching on TWiT's domain of business.

The CEO of twitch presumably didn't have a conversation with Laporte and promise to never get into the video business.

Yeah, I think the thing is though that you have to enforce trademarks early and evenly. You can't enforce for one significant breach and not for another. If you want to allow certain kinds of trademark use then you need to come to a licensing agreement for those specific uses, either by allowing certain forms of use or by allowing specific people to use it. Not a lawyer.

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