Twitter Sues So-Called Spam Software Providers
Here are my comments:
Thanks for posting the complaint. After reading it, and having my background in law, I agree with your assessment as to it is not looking good. Based on this complaint, I can see why the license won't validate. It seems that Jay is cutting his losses. No wonder he took down his Facebook profile. A lawsuit like this will disgorge all his profit; that is what the constructive trust is about. If he doesn't lose his profits like that, he'll lose them paying attorney fees. We should all be glad we aren't named in that complaint. I'm taking this as a lesson that the internet is becoming less and less the wild, wild West where there are no rules. This suit shows once again that we should respect others intellectual property rights as if they were our own. This suit shows that when we don't respect others property rights they are not without remedy.
If I was going to defend this lawsuit, I would attack the assertion that Tweet Attacks violated terms of service. Basically, Twitter's terms of service say that they know spam when they see it. Wikipedia on contracts says about this, "If the terms of the contract are uncertain or incomplete, the parties cannot have reached an agreement in the eyes of the law. An agreement to agree does not constitute a contract, and an inability to agree on key issues, which may include such things as price or safety [insert here what constitutes spam, or, what constitutes following too many followers in a short period], may cause the entire contract to fail. However, a court will attempt to give effect to commercial contracts where possible, by construing a reasonable construction of the contract." When a contract is, "...prepared by the company, and if therefore there should be any ambiguity in it, must be taken, according to law, most strongly against the person who prepared it." American Surety Company v. Pauly (No. 1), 170 US 133 - Supreme Court 1898.
The issue of numerous complaints against Tweet Attacks appears to violate F.R.Civ.P. 11. Twitter users have the ability to pull down and select this tweet is spam. There is no option to say this tweet is spam coming from Tweet Attacks.
Another weakness in the case is proof of damages by Twitter. Connecting we lost x amount of dollars because of the actions of Tweet Attacks is a daunting task.
It is not legally permissible to obtain an injunction for monetary damages. OK, so tie loss of good will to the actions of Tweet Attacks; also very challenging.
The main problem; financing the defense of the suit. It's hard to make money doing that. Oh, how about this, a counterclaim against Twitter?
What do you see as the weaknesses in Twitter’s complaint? How would you defend it?
Some denigrate Wikipedia as a reliable and authoritative source. For legal purposes I find it to be right up there with Black’s Law Dictionary, American Jurisprudence 2nd, and Corpus Juris Secundum.
Call me at: 720-675-7230
On Skype: legalbear
Best times to call: 8:30 am to 9:00 pm MST
Join my Yahoo Group Tips & Tricks for Court by sending an email to:
My blog: legalbearsblog.com
Tax sites: IRSTerminator.com IRSLienThumper.com IRSLevyThumper.com
(formatted like this so this email doesn't end up in your spam folder)