The first celebrity lawsuit against Twitter came and went as fast as a tweet -- or did it?
St. Louis Cardinals manager Tony La Russa said Friday that he'd settled his suit against Twitter over a snarky impersonator on the microblogging site. But Twitter now says there was no deal, and plans to fight the case in court.
The sudden change in legal strategy shows that the young, popular and still-unblemished-by-litigation start-up reconsidered the implications of settling early, observers say.
"It may be part of the calculus that they shouldn't fold now because others might make the same arguments against them," said Corynne McSherry, an Electronic Frontier Foundation lawyer who's following the case. "There is that risk if you settle right away."
La Russa sued Twitter on May 6 in San Francisco Superior Court, alleging that an unknown person had been tastelessly using his name and image, tweeting from an account named "TonyLaRussa."
Besides claiming that La Russa's identity has been hijacked, the suit asserts that Twitter is damaging La Russa's trademark rights to his nationally famous name.
After ignoring La Russa's initial complaints, Twitter agreed to pull the fake profile "within half an hour of serving the suit," said La Russa's longtime lawyer, Gregory McCoy of Danville, Calif.'s Gagen, McCoy, McMahon, Koss, Markowitz & Raines. Then on Friday afternoon, the two sides reached a settlement -- or so McCoy thought.
After a long phone conversation, McCoy said he came to an agreement with Twitter's outside counsel, Rodger Cole of Fenwick & West.
"My understanding is that we reached an agreement on Friday afternoon," McCoy said Monday. "Both of us would say we had confirmed the outline of a deal and confirmed it in e-mails."
Although McCoy refused to detail the settlement agreement, La Russa told media outlets on Friday that Twitter had agreed to pay legal fees and make a donation to his Animal Rescue Foundation.
But Twitter apparently didn't think so. On Saturday, CEO Biz Stone posted a response entitled "Not Playing Ball" on the company's blog.
"Twitter has not settled, nor do we plan to settle or pay," Stone wrote. "With due respect to the man and his notable work, Mr. La Russa's lawsuit was an unnecessary waste of judicial resources bordering on frivolous."
Neither Twitter nor Fenwick's Cole returned phone calls and e-mails seeking comment.
McCoy said he doesn't think that Cole was the one who changed his mind on the deal. He characterized Twitter's new stance as "just a little chest-pounding."
La Russa's suit is the first of its kind against Twitter. The lawyers point to tweets by the fake Tony La Russa making light of the manager's recent drunken driving arrest and the death of a Cardinals pitcher in a car accident: "Lost 2 out of 3, but we made it out of Chicago without one drunk driving incident or dead pitcher ..."
La Russa's lawyers are hanging some of their case against Twitter on trademark claims, possibly because Web sites aren't liable for the humorous or mean-spirited postings of their users thanks to the Communications Decency Act.
La Russa claims that his mark is being infringed by the fake Twitter account because it creates confusion. The suit emphasizes that Twitter also reaps the rewards, with messages that pop up saying "TonyLaRussa is using Twitter," and "Join today and start receiving TonyLaRussa's updates."
EFF's McSherry said the trademark claims could stick in Twitter's craw more so than some of the others made in the suit.
"The one problem you can get in trademark situations is that you have to go and prove that no one's confused," McSherry said.
That said, McSherry believes the claims are "a stretch." "The actual parody is going to be found to be protected by fair use and noncommerciality provisions," she said.
