Profiles in IP Law

An Interview with Christine Kao, Twitter, Inc.

Chrissie Scelsi

©2015. Published in Landslide, Vol. 8, No. 2, November/December 2015, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Christine J. Kao heads the Intellectual Property and Identity Policy team at Twitter in San Francisco, CA. She specializes in developing and applying policies for online platforms arising under applicable intellectual property laws including the Lanham Act, the Digital Millennium Copyright Act, and the Communications Decency Act. She can be reached at christinekao@twitter.com.

Thank you again, Christine, for agreeing to be interviewed for Landslide magazine.

Thank you so much for having me. It’s really an honor just to be asked.

Can you tell us a bit about your background and how you came to be in your current position with Twitter?

I am very much a product of my environment. I grew up in the Bay Area, in Silicon Valley, completely surrounded by the tech industry. My dad was an engineer. My mom worked in biotech. When I graduated from law school, I came to a crossroad where I had the choice of picking the more traditional path and working in a firm or taking a chance and working at an Internet company called Twitter focusing on Internet policy issues. Choosing Twitter was one of the best decisions I’ve ever made in my life. Here was an opportunity to really participate in the discussion about how to balance IP rights against the rights of users to express themselves online. It was an area where I felt that I could have a real impact because of how early on I joined the company, and it was exactly what I was interested in, the intersection of Internet technology and the law. It’s been an incredible experience.

Could you tell us a little bit about how your team and how it works with other business departments?

Our team defines the platform’s approach to third-party IP and impersonation issues and provides guidance on policy questions arising in product development and partnerships. We work very closely with stakeholders to make sure our approach is consistent with the needs of the business. We first started as one scrappy policy team led by our VP Del Harvey, handling everything from impersonation to issues related to copyright, trademarks, government request for user data, and abuse and harassment on the platform. We’ve come a long way since (policy is now its own department with many different teams handling these issues), but the core principles that guide IPI remains the same. The ideas of empowering free expression and defending and respecting our users’ voices– a lot of people are drawn to these sorts of values at Twitter. They flock here, resulting in an organization that really supports and puts resources into developing a team whose main job is to think about how to balance all these different IP rights and other types of legal rights against trying to create a free but also safe platform. You can imagine all these areas of gray—all sorts of issues come up when things are not fully aligned. We’ve stress-tested around the world. It’s a global platform, and so there are a lot of shades of gray. Being able to see all these different issues that come up when you try to enforce a rule or develop a rule that’s flexible and responsive, but also clear and transparent, has been a really exciting challenge. I’ve been here for a little over three years now and started when the team was still relatively small, developing these policies, responding to complaints, seeing how trademark rights are being properly enforced online. People sometimes step over the line into trademark bullying. We’ve come a long way, but I think at the core we are still very much the same group of people who care very much about defending our user’s voice while respecting others’ IP rights. As a policy team, we’re designed to work cross-functionally. What’s so neat about this work, too, is that you meet people from all sorts of backgrounds. We have folks with operational backgrounds and some who have policy backgrounds from other tech companies who may take a different approach to the same issue. The law and policy backgrounds have all these different ways of thinking about one problem, and it’s really fun when we are in a room debating about what is the right way forward for Twitter.

I can imagine the fun you have when you come up with a creative solution with these kinds of discussions, even if they have to happen several times to get on the same page.

It’s definitely one of the most rewarding parts about being in-house: working with people from very different backgrounds, learning to speak their language, and to later arrive at a solution that suits everyone’s needs. It’s a fun process.

So how big is the IP team that you work with?

The IP policy team is around a dozen people and growing. We also have a separate operations team that supports our work and amazing legal counsel.

As Twitter falls within the realm of new media and as a growing company, I’m sure you deal a lot with issues of first impression where perhaps the law has not remotely caught up or never even imagined what would be at issue. What’s one of the most unexpected issues that you’ve encountered in your work at Twitter?

I’ve been thinking about that question a lot, and there are so many little pockets the law isn’t very clear about where we’ve seen issues pop up. Other cases are surprising because the area of law seems very established and yet issues pop up. A surprising case from the past couple of years relates to an impersonation complaint from the government, the NSA, about the account @NSA_PR, whose bio read “We care, we’re here to listen,” and their location was “everywhere you are.” It was clearly a parody, but it was just a surreal experience to have to explain our policy on commentary and parody to the U.S. government. At that time, they had a picture of the NSA logo with the bald eagle, but it had headphones on or something funny like that.

Some of the parody accounts are pretty entertaining. That is one of the more interesting areas to watch when anything is trending on social media: who is the first to pop up with an interesting Twitter handle or an account, like Pharrell’s hat at the Grammys.

I love parody accounts that pop up on the platform; they’re so creative. They also show the power of the platform to allow people to freely comment on institutions and policy. A few years ago, we had a lot of trademark owners who were aggressively trying to enforce their rights against people who were commenting on their brand. Since then, Brands have become a lot more sophisticated about their approach to fans and people on social media. I think there is a lot more awareness that what appears online is very difficult to fully erase and trying to remove content can backfire due to how viral the internet can be. I remember all these industry panels about “What is social media?” and then we transitioned to “Well, what can you do about it?” Now, I think the discussion is really about understanding what type of content is actually damaging to the brand and how to get content removed strategically, or how best to deal with this content without it blowing up in their faces. There is definitely the trend toward being more thoughtful about trademark takedowns.

That’s really interesting, and it leads to my next question. While there are parody accounts, impersonation is also a big concern on Twitter. Could you tell us about the impersonation policy, how that’s developed, and how you work with that?

Sure. We have a policy that prohibits impersonation of others on the platform. It applies to individuals and to organizations. We do that because we want to create a good user experience and prevent abusive behavior. That said, We don’t have a real name policy so users can be anonymous on the platform or create parody accounts about others so long as they follow our guidelines

I’m sure counterfeiting is also a concern. Can you tell us more about that policy, and any unique challenges related to that that you run into with the platform?

We take counterfeiting issues very seriously, and we prohibit counterfeit accounts trying to get on the platform. We have a whole team dedicated to responding to those complaints. One challenge is that as a platform, we are not always in the best position to know what is counterfeit or not. Some accounts are clearly fake, and others aren’t authorized. We rely heavily on brands to report truthfully, and they’ve done a really good job so far. So we rely on that partnership with the IP owners to make sure that we’re all doing our best to report actual infringement.

Since you are working with brands, and the evolution of the acceptance of social media, I’m sure your process dealing with brand owners has developed too. How do you work with brand owners to alleviate their concerns if they are still not comfortable with social media and Twitter?

I think a lot of times people forget that we’re also IP owners and generally have a lot of concerns about trademark use too. We try to be thoughtful about how we handle other brand concerns about their marks on our platform. We participate pretty actively in industry events. We’ve spoken at the ABA, and we are constantly thinking of ways to get feedback on our policies and our processes. We don’t want infringing things on our platform and they don’t either. When I go to conferences, afterward I always expect that a brand will come up and talk to me, ask questions, and make suggestions, but that doesn’t happen often. It always surprises me because we’re very open to that sort of feedback.

What kinds of trends are you seeing in terms of trademark issues on Twitter?

I think there is a greater tolerance for fair use of brand owners’ trademarks online. For a while, we’d seen a lot of pretty aggressive takedowns, often from contractors who were filing complaints on the brand’s behalf.. It definitely seemed like the brands might not have been as aggressive if they were reporting themselves, but because they had a third party, for whatever reason, they tended to be much more aggressive. Recently we’ve seen that scale back a lot. Brands have been a lot more thoughtful, and I think as a result there are fewer stories on social media about users that were angry because somebody removed their account. Brand enforcement teams work more closely with partners in communications and marketing, hiring individuals to deal with these sorts of issues. It’s been a really good trend, a positive one.

It does seem like more brands are seeing the way that you can engage people who they never would have met if they hadn’t interacted on Twitter.

Jumping in and engaging has been a trend, too. Not just slowing down the aggressive takedowns, but also actually trying to turn the tide of conversation, by taking a situation where if there has been a negative tweet by a user that was not very agreeable, a brand might actually respond humorously. People are being a lot more subtle about how they can turn the tide of conversations about their brand.

Thinking of how I use Twitter sometimes, do you ever have brands that want you to get people to stop complaining?

Definitely. I think everybody is protecting their brands and trying to make sure that they can control the message. But I think they also need to realize that this is just another forum for people to give feedback. When we didn’t have social media, brands had hotlines where you could call in and give feedback about their product, albeit this is much more public. I think we’ve got to understand that this is simply another potential customer, and instead of trying to shut it down, appearing publicly responsive is a much better brand story.

Another big part of Twitter, and now other social media platforms, are hashtags. The topic of hashtags always makes me think of the Jimmy Fallon sketches that he does with lots and lots of hashtags. But it’s a great way to share and track trends online. How do you go about monitoring trends in terms of hashtags and things like that? What went into the decision to register them as trademarks?

I can’t speak to the registration decision, but from my perspective hashtags are functional and are a way for us to index and search conversations on the platform. I think one of the best parts of Twitter is just being able to see what most people are discussing in a really efficient way. I think there is a big conversation about whether or not hashtags can be trademarked and I’m actually on a panel about this very topic at INTA next year. Shameless plug, I know.

We don’t proactively monitor organic hashtags. It takes off as an algorithm, so whatever is popular and trending is what you see.

We talked a good bit about trademarks, but I’m sure you run into copyright issues as well, so could you please touch on that area?

Absolutely, our team handles copyright policy, too. It’s an interesting time because we offer an increasing amount of media within tweets. We also own other products like Vine and Periscope, which is one of our recent acquisitions. Part of the fun in policy has always been mapping out how rules like the DMCA apply to new technology and finding ways to limit abuse of those rules. We try hard to be transparent about our copyright takedown process by publishing a Transparency Report twice a year and partwnering with organizations like Chilling Effects to share DMCA notices with the public.

I know that there were a lot of headlines and discussion about the terms of use from the copyright policies related to some of the streaming that was done of the Mayweather-Pacquiao fight. I don’t know if you can comment on that or any changes you’ve made to your policies as a result of that, but it was definitely interesting to see how the technology has been so widely adopted.

We have a large team just handling the copyright issues because we really do want to be responsive to concerns of copyright owners. It’s something that we’re watching very closely.

I imagine some of that also is probably working to make sure your internal and external policies are legally sound but easy to understand at the same time.

Absolutely, that’s a good way to put it and we have some great legal counsel to support us here. It’s not really effective to have a policy that’s difficult to understand for the people to whom it applies. A lot of it is understanding the audience, understanding the type of people who use our technology, and finding the right vocabulary to communicate with.

What’s your favorite part of working in your position at Twitter?

It’s the opportunity to have an impact on something I care very much about: IP issues online—what it means to take rules we have and apply them in a space that is ever changing and is very, very global. It’s also the opportunity to work with people who I really respect, who are very passionate about the mission, what we do. Those two things make it really rewarding.

What advice do you give if young lawyers are interested in trying to work in that space?

I think my biggest piece of advice is, and this is a little cliché but really, not being afraid to think outside the box about how you can apply the skills you learned in school to this space. It’s also not being afraid to put yourself out there and ask for advice, ask about jobs where your training may not upon first glance seem like a perfect fit, but where you have a deep interest, ask about non-traditional roles. Law grads are everywhere and you’ll be surprised by how willing people are to mentor, and provide context, especially when it comes to choosing a career. We’ve all been there. One of the reasons I got this job was because I wasn’t afraid to ask. I thought this job posting looked really interesting and asked to learn more.

I really enjoyed learning more about your work at Twitter. We appreciate you taking the time to chat with us today.

Chrissie Scelsi

Chrissie Scelsi is the principal of Scelsi Entertainment and New Media Law with offices in Orlando and Port Charlotte, Florida, where she focuses her practice on entertainment, intellectual property, internet, technology, and business law. She can be reached via Twitter @punklawyer.