SAN FRANCISCO (CN) — Telling an attorney for Twitter, “I don’t see how you can even make that argument with a straight face,” a federal judge Thursday heard arguments in a class action accusing the company of colluding with a defunct app-maker to misappropriate people’s online identities.
U.S. District Judge William Alsup made the comment in response to a Twitter attorney’s argument that the lead plaintiff’s right-of-publicity claim violates the First Amendment by seeking to curb app users’ activities with each other’s profiles.
Alsup nonetheless indicated that he might dismiss, with leave to amend.
Alsup told a Twitter attorney: “You’re probably right under the standing point and wrong on everything else.”
Lead plaintiff Jason Parker sued Twitter and Hey Inc., maker of the app “Famous: The Celebrity Twitter,” in August, claiming both companies violated Alabama’s Right of Publicity Act, which prohibits unauthorized use of a person’s name and likeness in commercial products.
Although Parker sued for a class of Alabama residents, he filed in San Francisco because both tech companies are based in California.
Twitter agreed in June 2015 to allow Hey to import its users’ profile data into its gaming app, including names and photos.
Originally called “Stolen,” the game “encouraged players to ‘buy,’ ‘own’ and even ‘steal’ real-life people by using virtual currency,” Parker said in his complaint.
The app disappeared in January after U.S. Rep. Katherine Clark, D-Mass., wrote to Twitter’s CEO, urging him to suspend Hey’s access until nonconsenting profiles were removed and safeguards put in place.
Less than a month later, the app re-emerged as “Famous.” Rather than urging players to buy and sell profiles, “Famous” had users “invest in” people’s profiles with “hearts” instead of with virtual currency.
Parker says he joined Twitter in May 2008 and discovered in July this year that his profile, name and photo were uploaded to the app and displayed for players to collect with virtual currency.
Hey shut down in October, after discontinuing “Famous” in September, according to Twitter’s dismissal motion.
Parker’s attorney Alexander Tievsky said Hey has not yet presented itself in the case.
At oral argument Thursday, Alsup assailed Twitter’s argument that Parker’s right-of-publicity claim violates the First Amendment by seeking to curb users’ activities with each other’s profiles.
“I don’t see how you can even make that argument with a straight face,” Alsup told Twitter attorney Matthew Brown.
Brown replied: “Twitter has the First Amendment right to disseminate the information.”
Alsup took issue with that, likening it to criminals stealing and sharing Social Security numbers.
“I can’t believe the First Amendment allows that kind of criminal conduct,” Alsup said. “You’re telling me that’s protected by the First Amendment? No way. You’re disclosing their personas.”
Brown replied: “Name and profile picture, to be precise. That’s distinct.” He said Twitter users voluntarily provide that information to the online network.
Parker’s attorney Tievsky said the Constitution does not protect Twitter in this case.
“The point here is, in the use of my client’s name and likeness, there is no creative expression, there is a mere taking of information and putting it in another place and another context, and that’s what becomes problematic,” Tievsky said. “We’re not talking about the kind of expressive work we recognize for First Amendment protection.”
Also Thursday, Alsup asked both sides to clarify their arguments on consent.
Twitter contends that Parker consented to Twitter’s disclosure of his information to Hey when he agreed to Twitter’s terms of service and privacy policies, which state that information submitted to Twitter is public and can be viewed by third-party websites.
In a motion in opposition, however, Parker’s attorneys said the terms and conditions require Hey to get users’ consent before using their information, which it never did.
Alsup expressed frustration with the arguments, suggesting a need for experts versed in consent.
“I’m supposed to resolve this on a motion to dismiss?” he asked.
Brown is with Cooley LLP in San Francisco, Tievsky with Edelson PC in Chicago.
Given Alsup’s indication that he lacked standing, Parker voluntarily dismissed his lawsuit on Friday, and said he intends to pursue the matter in state court.