PeopleBrowsr v. Twitter: Twitter Lost This Round, And Should Have

PeopleBrowsr, the company behind such products as Kred, is fighting for its life after Twitter, it’s main source of data that drives its business, suddenly (sighting the end of a one-year contract) elected to do an about face and try to turn off access to its “firehose” of tweet-based information that PeopleBrowsr spent $1 million annually to obtain.

According to the complaint filed by PB, which is the basis for its successful restraining order granted Wednesday and preventing Twitter from kicking it out of access to the Firehose, and comparing that to Twitter’s response, the court was correct to grant the order, paving way for a January 8, 2013 hearing in San Francisco Superior Court.

Moreover, the court should take measures to force Twitter to provide open access to all comers. The reason for this assertion is simple: Twitter has become too powerful in its overall social role to believe it can just silo – off access to its Firehose in the way that it has done this year without suffering the consequences of upsetting many who have come to rely on its data not just for corporate gain but for social understanding – something more important in this blogger’s view.

Twitter’s recent API decision behavior has destroyed Trendistic, the service that estimated the rate of tweets and popular terms, and provided the results, complete with useful graphs, for free. Social analysis, bloggers, and reporters and researchers had an excellent tool to evaluate social change as it was happening via the lens Twitter presents.

While I disagreed with PeopleBrowsr’s own high dollar bar it set for access to Twitter-based data via Trendrr, stopping it from having any access at all to Twitter’s firehose just allowed the process of Twitter’s inward turn to continue without being blocked.

The only other alternative is Congress, but neither Congress or the FCC has shown the intellectual chops to take on this matter. Congress has to be made to understand the overall importance of Twitter before it can act to have some say over what it does.

What that “reads like” to the lay person is of no concern to this blogger because for practical purposes, Twitter, Facebook, Google, Yahoo, and other large Internet companies have become the public utilities of the 21st Century. The problem is that they have matured at a rate faster than our collective legal structure has grown with that expansion. Thankfully, the PeopleBrowsr complaint may be the straw that broke the camel’s back, but not for those reasons. The case is turning on legal document writing style from the perspective of civil procedure.

In plain english, PeopleBrowsr’s lawyers presented their case better than Twitter’s lawyers.

Read on.

Here’s the overall complaint filed by PeopleBrowsr:

PB v Tw Complaint TRO 28 Nov 2012

And in case you’re wondering, Twitter did file an opposition to the TRO, but the way it was written was enough to alienate even potentially the most sympathetic of judges. Twitter’s lawyers wrote their opposition to the TRO as if they were responding to a message board member in some kind of nerd’s debate about The Hobbit. The level of snark installed in Twitter’s opposition to the TRO was so great as to render it almost completely unprofessional.

Consider:

This is Contracts 101. Athough PeopleBrowsr attempts to dress up its case as some sort of grand antitrust or interference case, it is not.

That’s how the Opposition To The TRO starts, and it goes downhill from there, but its worth reading. In writing an Opposition To A TRO, it’s important to stick to the facts of the case, make sure they match relevant cases, break paragraphs so the document is readable, and leave out any snarky editorial commentary. The TRO prepared by Twitter’s legal reps looks like it was drafted by people not too far removed from law school, even though the lead lawyer is one well known in the tech community.

2012-1.11.28 Opposition to Application for TRO

In looking at the schedule of documents filed that’s on the San Francisco Superior Court website, the lawyers for PeopleBrowsr filed an “Order for Limited Expedited Discovery,” which was granted by the court in order to pave the way for the January 8th 2013 hearing. For the court to do that means PeopleBrowsr’s lawyers successfully preesented a case proving “that “unusual circumstances” must be shown to grant a party expedited discovery” – and its a fair bet those circumstances involved the very breakdown of PeopleBrowsr’s business operation. (That document was not placed online.)

It’s actually surprising that Twitter lost this round, given the stellar 20 year IP Law career of its lawyer Michael H. Page of Durie Tangri. But it’s clear Mr. Page didn’t really dive in an lay out a systemic legal argument devoid of snark and arrogance, for the court to be persuaded not to grant the TRO to PeopleBrowsr. Moreover, for all of the high profile IP cases Mr. Page has been involved in, he was bested by a lawyer who has a better range of success spanning many legal cases in different areas, including politics, and not just tech.

That person is Michael A. Kahn.

Mr. Kahn has a better grasp of what the judges at San Francisco Superior Court want to see from a plaintiff, and his background shows an expert hand who’s navigated the highest courts in California, and this “been involved in the screening and selection of candidates for the Bench for two California Governors and one U.S. Senator.” That means the judges know who he is, far more than they’re aware of Mr. Page. Mr. Kahn also has a long list of government appointed roles, and his bio reads this: “argued over a dozen appeals in State Supreme Court and Federal and State Courts of Appeal and has arbitrated over a dozen cases to decision (with over a 90% success rate).”

Including this round.

Twitter has a lawyer known in the tech community, but PeopleBrowsr has a lawyer known by judges in California, one with a 90 percent success rate. Mr. Page better pack breakfast, lunch, and dinner, and even with that, Mr. Kahn just might eat them for him.

Stay tuned.