Tag Archives: api

Court will not aid company that was banned from accessing Facebook API

Facebook’s ability to decisively police the integrity of its platforms was without question a pressing public interest.

Plaintiffs provided software-as-a-service to help their clients locate social media content, gain approval to use that content, and then re-purpose it in the clients’ own advertising and marketing activities.

Previously, plaintiffs had operated in partnership with Facebook, whereby plaintiffs had access to the Facebook Open Graph API. In late August 2019 (a few weeks after a Business Insider article identified plaintiffs as misusing the Instagram platform) Facebook terminated the marketing partnership and access to the API.

After efforts to informally resolve the situation failed, plaintiffs, perhaps emboldened by the Ninth Circuit’s recent decision in hiQ v. LinkedIn, sued Facebook and Instagram asserting a number of claims, including breach of contract and tortious interference, and also sought a declaratory judgment that plaintiffs did not violate the Computer Fraud and Abuse Act. Plaintiffs sought a temporary restraining order that would have restored access to the platforms pending the case’s determination on the merits. But the court denied the motion. 

No irreparable harm likely

The court rejected plaintiffs’ argument that they would suffer irreparable harm if access was not restored. It found that plaintiffs’ allegations of imminent harms shared a common fatal flaw in that they merely alleged speculative harm – they did not sufficiently demonstrate that irreparable harm was likely to occur.

Plaintiffs did establish for purposes of this motion that much (though not all) of the work they conducted for clients before losing API access involved Facebook. But the court found that plaintiffs had not sufficiently shown that they would actually lose current customers, or fail to acquire new prospective customers, if access were not restored. 

Further, the court found that plaintiffs’ CEO’s statement that “this will soon reach a tipping point where [plaintiffs] can no longer operate” was not specific enough to demonstrate there was irreparable harm. “The extraordinary relief of a pre-adjudicatory injunction demands more precision with respect to when irreparable harm will occur than ‘soon.’ Such vague statements are insufficient evidence to show a threat of extinction.”

Not in the public’s interest

The court also found that the “public’s interest caution[ed] against issuing injunctive relief at this time.” 

Plaintiffs argued that the public interest favored an injunction because one would prevent the imminent destruction of plaintiffs’ business, preserve employee jobs, and generally allow plaintiffs to continue operating. Additionally, they argued that the public interest would be served by enjoining defendants’ wrongful conduct.

Defendants argued that the public had an interest in allowing Facebook to exclude those who act impermissibly on its platform and jeopardize user privacy by, in this instance, automating data collection and scraping content en masse. Defendants argued that the public has an interest in allowing them latitude to enforce rules preventing abuse of their platforms.

The court decided that awarding injunctive relief at this stage would compel Facebook to permit a suspected abuser of its platform and its users’ privacy to continue to access its platform and users’ data for weeks longer, until a preliminary injunction motion could be resolved. Moreover, as precedent within Facebook’s policy-setting organization and potentially with other courts, issuing an injunction at this stage could handicap Facebook’s ability to decisively police its social-media platforms in the first instance. Facebook’s enforcement activities would be compromised if judicial review were expected to precede rather than follow its enforcement actions.

And although the public certainly has some interest in avoiding the dissolution of companies and the accompanying loss of employment, the court found that Facebook’s ability to decisively police the integrity of its platforms was without question a pressing public interest. In particular, the court noted, the public has a strong interest in the integrity of Facebook’s platforms, policing of those platforms for abuses, and protection of users’ privacy.

Stackla, Inc. v. Facebook Inc., No. 19-5849, 2019 WL 4738288 (N.D. Cal., September 27, 2019)

Do Twitter’s new terms of service forsake third party developers?

Twitter announced its new Terms of Service yesterday. One big issue deals with copyright ownership. This is one of the perennial questions in the law of social media: “who owns the user-created content?” Twitter nods to this issue when it states that “Twitter is allowed to ‘use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute’ your tweets because that’s what we do. However, they are your tweets and they belong to you.”

That’s all well and good. And by not being too grabby, Twitter avoids stirring up a brouhaha like Facebook did earlier this year for a little while when it claimed a very broad license in users’ content. In that situation, some pointed out that Facebook could use your content forever, even after you deleted your account. No doubt Twitter was motivated by an aversion to controversy of this sort when it decided to not claim a perpetual license.

But is Twitter being too cautious? The license it claims in the new terms of service does not specify a duration. That’s user-friendly, because such a license is probably terminable at will by the user. Under cases like Walthal v. Rusk, 172 F.3d 481 (7th Cir. 1999), Twitter would no longer have the authority to use, copy, reproduce, etc. the tweets of a user that no longer permitted such use be made. Deleting one’s account would be a good indication that such a license was being revoked. And the user could follow up with an express statement to Twitter that the license no longer exists.

Still all well and good. But let’s look at the “ecosystem” that has been nourished by the Twitter API, and which Twitter bolsters in its new terms of service. (“We encourage and permit broad re-use of Content. The Twitter API exists to enable this.”)

Third party developers can build apps that, among other things, cache users’ Tweets and make them available for mashup, organization, etc. and redisplay. These acts by the third party developer are an exercise of rights of the copyright holder, i.e., the individual Twitter user. The terms of service allow Twitter to sublicense these rights to the third party developer, so there is no problem so long as the individual Twitter user is under the terms of service.

What happens, though, in the situation we were just discussing where the individual user revokes the license to Twitter? These cached copies out there in the possession of third party developers all of a sudden become unauthorized, because Twitter no longer has the sublicensable right to allow the tweets’ copying and redistribution by others.

In such a situation, are third party developers who continue to display the content left blowing in the wind, as infringers of erstwhile Twitter users’ copyright rights?

Notice sign photo courtesy Flickr user szlea under this Creative Commons license.