Yesterday, I threw a public hissy fit when I found out that Tumblr’s customer service had acted on a trademark request from a company called Zephoria who had written them to ask that they release my account to them. (Tumblr has since apologized and given me my identity back.) In some ways, I feel really badly for Tumblr – and all other small social media companies – because brokering these issues is not easy. In fact, it’s a PITA. Who has the legitimate right to a particular identity or account name? What happens when the account is inactive? Or when the person who has the account is squatting? Or when there are conflicting parties who both have legitimate interests in an account name? Or when the account owner has died?

This is actually not a new issue. Battles over domain names (as in URLs) raged in the 1990s. People have spent millions of dollars buying domains from squatters and there have been countless lawsuits over who has legitimacy in these situations. Before there was Register.com, there was Jon Postel who was the benevolent dictator of domain names. Knowing this was too much for one person to manage, he went on to help found ICANN. (For a great accounting of these battles, I strongly recommend Jack Goldsmith and Tim Wu’s “Who Controls the Internet.”) These issues also came up when email services and instant messenger services had to disseminate accounts (which is why you got stuck with carebear42). Whenever you’re dealing with a limited domain space where the name or “handle” needs to be a unique identifier, you run into this. There can be a million Joe Smith’s in the world, but there can only be one joesmith.com.

Unfortunately, social media has thrown a new wrench into this age-old problem. While homepages were certainly identifiers of people, there were only so many of us geeks who were obsessed with getting a personal domain name back in the day, our digital vanity plate if you will. Blogs, social network sites, and Twitter took the identity battle to an entirely new scale. Not only are handles important as unique identifiers, they’re constantly referenced in all sorts of ways in social media. Blogging created an ecosystem where people became known for their blog identities. Social network sites (initially MySpace and eventually Facebook) brought the homepage unique name culture to the mainstream via the Facebook landgrab (albeit in a walled garden environment). And then Twitter took the culture of IRC into the mainstream, turning digital handles into referents not just for the technology but for addressing one another (through @replies).

In the early days of Web2.0, the technology stalwarts and traditional companies rolled their eyes at the millions of consumers using social media to babble on about their lives. The New York Times dismissed bloggers as “amateur diarists” and few took the cultural practices playing out particularly seriously. And then blogs started screwing with pagerank. And companies started realizing that if bloggers talked shit about them, it would ripple across the web. By the time that Twitter got big, companies realized that they needed to jump on the bandwagon and create a presence in these newfangled spaces. And all of a sudden, companies and individuals started competing for the precious unique identifiers on countless services across the web.

Facebook capitalized this, revealing their own interests. Facebook announced that at midnight on June 12, 2009, it would open the doors for a identifier land grab. What the public didn’t know was that Facebook had already chosen to reserve countless identifiers for its (potential) customers. All sorts of companies were given handles representing their names and they didn’t have to compete with the masses to do so. This two-tiered system revealed who got priority in a Facebook world.

Of course, there’s an irony to all of this, an irony that was best articulated by Todd Sieling in a comment left on my blog:

“It’s kind of funny how individuals have been encouraged for years to take on the costuming of corporations by building personal brands, but that part of the outcome from that shift has been to dissolve the identity line and leave individuals on an uneven playing field with established and much more powerful brands. In other words, we kind of got tricked into becoming small fish in a pool with much bigger ones.”

All sorts of folks have staked their reputations on their name or pseudonym. Some of us are old skool geeks. Others are emergent pop icons. Our reputations have become linked to what can be understood as a “personal brand” (see Alice Marwick’s dissertation for a fantastic analysis of this). In a neoliberal environment, individuals have become corporatized just as corporations have become people. The lines are getting increasingly fuzzy.

To the best that I can understand (note: I’m not a lawyer even if I happen to be at Harvard Law School), trademarks were established as a way for corporations (or individuals) to be able to uniquely identify themselves and clearly mark their products. Of course, trademark law is a complete mess, differs by jurisdiction, and reveals how complicated dealing with boundary issues around identity can be (cuz law isn’t that different than code…). Once an entity has a trademark, they work hard to protect it so that customers don’t confuse their competitors with them, especially when they’ve worked so darn hard to build up their brand. As with most things law-related, trademark law is complicated and gnarly, impenetrable for the average person who often lacks the financial resources – or incentives – to go out of their way to protect their image with such a formalized method.

And here’s where the internet makes everything messy. There are all sorts of people roaming around the internet, building their reputations and associating them with nicknames, handles, and pseudonyms. They aren’t necessarily building businesses or engaging in commercial acts, but they are building a public reputation no less. And there are also all sorts of companies out there operating as individuals to give their consumers a sense that they are “authentic.” And these two practices are colliding online. When is a Twitter/Tumblr/Facebook/YouTube account an individual? When is it a company? When is it an individual at a company? They’re all meshed into one TYPE: account. So then who has precedence?

For the most part, websites have doled out names based on a first-come-first-serve approach. Early adopters get the most valued names and latecomers are left with the dregs. But it’s not that easy. Companies with trademarks have a legitimate claim to make when individuals use account names to deceive the public into believing that they are that company. And there’s a serious tactical issue at play when the most valued names are “squatted” by folks hoping to make a buck off of convincing McDonalds or whoever to pay them for the account. This is especially challenging for social media sites who don’t want to have all sorts of deadzones on their service (not to mention the fact that there’s a question of fairness over who gets the right to monetize early adopter-ness). Different issues emerge when two entities both have a legitimate right to the name, as was the case with the name “zephoria” on Tumblr. Does trademark trump? Does early adopter-ness trump? How do you resolve reputation and trademark differences in a digital era?

Let me take a moment to offer some more context about my own experiences with this. I’ve used zephoria for sociable purposes since around 1998. I didn’t mean to build a brand around it (outside of Burning Man where I liked using it as a playa name), but it happened. When blogging got popular, I found myself signing blog posts (on my blog and elsewhere) as zephoria. I created countless accounts as zephoria, but I’m not zephoria on every websites. On sites like LiveJournal where I wanted to be even more anonymous, I chose a different name. On MySpace, I was lazy about grabbing the name and a small band beat me to it. I’ve always accepted this because first-come-first serve seems perfectly fair to me. Facebook was the first situation where I was thwarted through what I believe to be an unfair advantage; I was online with all of my friends at midnight and they all got their handles but I didn’t get mine because it had been reserved without me having a say at all. And then Tumblr took it to a new level – I was the first to arrive but a customer service person felt like someone else had more legitimacy because they had a trademark.

Now, I don’t post that much on Tumblr and while I surf Tumblr pages fairly often, I only use the site enough to make sure that I understand the site. I respect and value Tumblr, but it’s not really my thing. I have plenty of digital presences and I’m much more wedded to my personal blog and Twitter. But I still like Tumblr and I love seeing what teens do with it. If a hipster band came to me and begged me to have that account for some legitimate reason, I probably would’ve given it up. But I don’t believe that the consulting company wanted the account for anything other than an opportunity to try to downgrade my pagerank. They haven’t updated their corporate blog in years; they haven’t updated their Twitter account in over a year; and they have no content (and no likes) on Facebook. They may have the trademark, but in social media land, they’re squatters. And they’re probably pissed that they’re a search engine optimization company who has failed at the SEO game because, without any explicit effort to do so, I’ve managed to be a more relevant result in search engines than they are. All because I’m actually a legitimate person who doesn’t have to pretend to be authentic to gather an audience.

So now let’s go back to reputation, identity, and trademark. I’ve inadvertently built a reputation linked to zephoria. All sorts of people call me zephoria. And all of my weird quirks (fuzzy hats, lower-case name, etc.) are interpreted as part of my self-brand even though their roots have nothing to do with marketing, but are rather the product of me being a proud freak. Because of my work, I’ve built a pretty powerful reputation. This gives me a shitload of privilege (and is most likely the reason why companies are willing to call me when I bitch loudly online). But I wouldn’t be me if I didn’t try to use that privilege to challenge the status quo. I recognize that most people don’t have the privilege to protect their reputations when more powerful institutions go after them. And since posting about this yesterday, I’ve received countless emails from individuals who have been screwed over by every social media site you can name and struggled to assert their rights (e.g. girlgeeks). This is a problem that is bigger than me. So what can we do about it?

I believe that any company that doles out unique identifiers needs to have strong policies in place, not simply to protect trademark owners, but to balance the interests of all relevant parties. Trademark is not the solution, unless it’s clear that the account holder is trying to deceive the public. I also believe that said companies should be very public about what their processes are in trying to deal with these tensions. I also believe that there should be a series of stages involved that go beyond “tried to contact.” What I’d suggest is the following:

1. Try to contact the account holder via email, private message, on their dashboard, or by any other direct means available… and give them reasonable time to respond.
2. Before moving or deleting the account, post a message on the account indicating that the ownership of the account has been challenged, asking the viewers of the page to ask the owner to contact the service ASAP to resolve this. This will prompt the user’s friends to get them to act.
3. Explicitly ask both parties for comments. Perhaps even consider asking the broader userbase to weigh in. Treat the identity space as a commons because that’s what it is.
4. Deal with each case on an individual basis, weighing first-come, trademark, personal reputation, web presence history, activity on the service, etc. Don’t simply reinforce existing power by assuming that the company is more legitimate than the individual.
5. Finally, publicly explain the decision-making process so that the public understands the issues. Think of this as a court record. Cuz it kills me when social media companies scream about the importance of open-source and governmental transparency but refuse to make their own customer service processes transparent. (Government is one big customer service organization!)

Are those steps foolproof? Of course not. But they’re a step in the right direction. (Assuming that you want to prioritize creating a community over turning a profit… which may not actually be true for some social media services…) Public accountability and discussion is a critical component of creating a digital environment where people are treated fairly. Trademark on the internet isn’t a black-and-white solution. And we have the opportunity to set the standards, to tease out how we resolve personal reputations and institutional authority. And we have a responsibility to do so because we are creating digital spaces in which reputations are made and broken. It’s time that we recognize that with great power to control the attention economy comes great responsibility to create a world that we want to live in. And that means that we have to think about fairness, not just legality.

Recommended Reading:

• Jack Goldsmith and Tim Wu’s “Who Controls the Internet”
• William McGeveran’s “Disclosure, Endorsement, and Identity in Social Marketing”, “Rethinking Trademark Fair Use”, and “Four Free Speech Goals for Trademark Law” (tx Woody Hartzog)
• ICANN’s Uniform Domain Name Dispute Resolution Policy and Harvard’s UDRP Opinion Guide (tx Kevin Marks)
• Teresa da Silva Lopes and Paul Duguid’s Trademarks, Brands, and Competitiveness” (tx Dan Perkel)
• Richard Posner’s “The Little Book of Plagiarism” (tx Andres Monroy-Hernandez)