What Could Twitter Sue Treads (Meta) For?

The past week has been an exceptionally eventful one for social media. 

On July 5, Meta-owned Instagram announced the launch of its new social networking service: Threads.

It was a clear shot over the bow at Twitter. Threads is similar to Twitter in many ways, including the focus on short text posts, the integration of various media types and the focus on more immediate content.

This caused many in the media to tout Threads as a “Twitter Killer”, noting that Twitter has faced a myriad of challenges since Elon Musk’s purchase of the platform in October 2022.

For Threads, the gamble seems to have paid off, at least in the short term. In less than a week, the service already touts more than 100 million users, a number that is nearly 40% of Twitter’s reported daily active users in November 2022.

However, Twitter did not take this launch lying down. Twitter, through a law firm, sent a cease-and-desist letter to Meta, alleging that the company was violating their intellectual property in the development and launch of Threads.

But this raises a simple question: If the dispute did come to legal blows, what would Twitter likely sue for what would their chances of success be like?

It’s a complicated question, and one the letter doesn’t do a lot to help answer.

What the Letter Says

The letter itself is very vague on what intellectual property rights it alleges Meta violated. In the opening paragraph, it simply claims that Meta has engaged in, “systematic, willful, and unlawful misappropriation of Twitter’s trade secrets and other intellectual property.”

According to the letter, this is possible because Meta hired “dozens” of former Twitter employees. It claims that those employees “had and continue to have access” to Twitter’s intellectual property, and some have “improperly retained Twitter documents and electronic devices.”

The letter continues to caution Meta that they are “expressly prohibited from engaging in any crawling or scraping” Twitter content, including followers and following data. The letter concludes with a formal notice for meta to preserve documents that could be relevant to any potential litigation, including former Twitter employees it hired, the development of Threads and any correspondence between the two companies.

All in all, it’s a fairly standard cease and desist letter, including the vagueness. Obviously, there will be much more to go through when and if a lawsuit is filed, but there is precious little here.

That said, there are a few points we can glean.

Trade Secrets 

The only intellectual property the letter highlights by name is trade secret. According to the letter, Twitter employees took trade secrets with them when they left the company and offered them to Meta to help speed up development of Threads.

Trade secret is a type of intellectual property that we don’t discuss a great deal on this site. It deals with information that, despite being of great value to a business, isn’t protected by trademark, copyright or patent. This can include formulas, practices, processes and other elements.

Though the exact definition of a trade secret varies wildly from jurisdiction to jurisdiction, generally, a trade secret is considered anything that:

1. Is Commercially valuable because it is a secret
2. Is Known only to a limited group, and
3. Is subject to reasonable steps by the holder of the information to keep it a secret.

In a case like this, it could include details on the Twitter algorithm, a database of past advertisers or other processes Twitter operates behind the scenes.

Though California, the state both companies are based out of, has made non-compete agreements unenforceable, it is still possible for former Twitter employees to have and share Twitter’s trade secrets. That, in turn, is precisely what Twitter is saying happened, in particular with inappropriately retained documents and devices.

It’s pretty obvious that, if Twitter does file a lawsuit, this will likely be the main argument. Simply put, Twitter seems to think that there is no way Threads could have been developed so quickly without the misuse of trade secrets, and that is something they would hope to prove in court following discovery.

Copyrights, Trademarks and Patents

Beyond trade secrets, the letter only mentions “other intellectual property,” likely referring to copyright, trademarks and/or patents.

Of the three, patents seems to be a likely candidate. As of 2020, Twitter had some 1400+ patents in its portfolio and those patents cover a wide variety of elements related to the operation of a social network. 

For much of its portfolio, Twitter has agreed to use patents only defensively. Though there are caveats and exceptions, the use of patents to sue Meta would represent a significant about-face. That’s because, in 2012, it helped launch the Innovator’s Patent Agreement, which is an agreement among tech companies to only use patents for defensive purposes.

Copyright is also possible, though it would require that Meta have copied code, images, text, audio, video or some other element that can be protected by copyright. 

Undoubtedly, right now, someone is pouring through all public-facing elements of Threads to look for any evidence of copying by Meta. Equally undoubtedly is that, if a lawsuit is filed, Twitter is going to seek access to Meta’s behind the scenes code to look there as well.

At this point, it’s unlikely that even Twitter knows if it has a potential copyright infringement case. That will likely come with time and may not even be known when and if the lawsuit is filed. 

Finally, trademark infringement is probably the least likely of the three to play a major role in any potential lawsuit. 

Though it’s pretty clear that Meta wanted to create an app similar to Twitter, the app has been careful to use names, terms, marks and symbols that are notably different from Twitters. 

While it is clear Meta used similar terminology (threads instead of tweets, reposts instead of retweets, etc.) it would be tough to argue that there was much confusion about which company owns or operates which product. Meta has enough of a brand of its own to not need to pass off Twitter’s.

That said, there may be an argument on the grounds of trade dress, where Twitter might claim that the visual similarities between the Threads and Twitter apps was an attempt to mimic their packaging.

That would be a difficult argument, as many of the app’s aesthetic choices are purely functional, and no one can hold a trademark to the idea of a list of text posts any more than they could hold a copyright in it.

Still, it’s safe to assume that Twitter will be watching closely to see if there is any confusion in the marketplace and will be watching the marketing activities of Meta closely, looking for any place that they cross the line.

Bottom Line

In the end, the vagueness of Twitter’s letter is likely for a simple reason: They don’t know what specific arguments they can or will bring.

Right now, Twitter has various theories about regarding the types of infringement that might have taken place, but no real evidence. The letter was sent the same day that Threads launched, meaning that there wasn’t enough time for them to even examine the public-facing materials, much less information Meta keeps secret.

Though Twitter seems confident about trade secret issues, there are other approaches it could take in addition to or instead of that one. 

We will know more after when and if a lawsuit is actually filed. But, even then, we won’t have the full picture of Twitter’s claims and Meta’s counterarguments. That will likely come over the course of the potential case, meaning it could easily take years for a clear picture to form.

In the meantime, as this past week has shown, the tech world will keep moving forward. Even if Twitter does sue and does win, it could be a Pyrrhic victory. If Threads ends up surpassing Twitter, there may be no award of damages that can repair or undo that.

That why, as strong of a supporter I am when it comes to intellectual property, I always worry when companies run first to their lawyers, instead of marketers or engineers, when faced with competition.

Even if you can win in the courtroom, it doesn’t matter if you can’t win in the marketplace.