Independent Twitter developers and "detrimental reliance"

I've been exchanging DMs with some of my lawyer friends on Twitter, musing over the question: might Twitter's community of independent developers have any legal recourse when Twitter unilaterally changes rules, rules on which many developers have built services?

Some of these services, built on top of Twitter, are businesses in their own right.

The informal lawyer colloquy gets to the same place that the development community arrived at last month: *don't* build a business predicated on Twitter's API terms staying the same. I can recall Fred Willson blogging warnings to the same effect months ago, years perhaps. :/

But let's go ahead and let the air out of the balloon by talking just a bit about the legal theory that might have been the most promising. It is a kind of breach-of-contract theory, though it might be fairer to characterize the theory as something the common law has imposed over the years when contract law fails, or when there isn't actually a contract or contractual language to support the claims of someone that we intuitively feel has been wronged.

Suffice it to say: you don't always have to have a written contract in order to obtain legal relief for something that feels like breach of contract.

If I tell you, "bring your produce to my fair, it's important that your goods are there, I will advertise the fact and sell tickets based on you being there, and you can use the refrigerated warehouse to store things," you might rent a truck, haul your produce across the mountains, and bear the risk that you might not sell enough nectarines to make the venture profitable.

What you won't expect, however, is for the fair proprietor to lock the gate as you pull up, and, as you roll down your window, hand you a flyer which reads: "we've decided to focus on funnel cakes, scones and deep fried candy bars at the fair this year; independent produce no longer welcome."

Final, critical piece of this hypothetical: you don't have a written contract.

As you drive back over the mountains, temperatures soaring, fruit getting overripe in the container, do you have any legal recourse?

I think you probably do! You relied on the fair proprietor's promises to your detriment. It is reasonable to think the fair promoter would have expected you to rely on those promises, and to act on them, and to spend money to get your fruit to the fair.

Change the hypothetical in this respect: the promoter is indeed permitting fruit to be sold at the fair, but, at the last minute, he accepts sponsorship dollars from a big grocery chain that demands that only its processed, dried fruits, and a smattering of poor quality fruit flown in from out of state, be sold at the fair. There is some small controversy from a consumer advocacy group that objects to the fair advertising that promises "local organic produce."

I think your chances of getting, as damages, the full expectancy of whatever profits you would have made, had the promoter kept his promise, now go way up. (Though you still have the issue of how to measure those profits, and you may still have some duty to find a supermarket or distributor on the way home to whom you can unload your fruit, to mitigate your damages.)

The situation for Twitter's independent developers both is and is not like the above hypothetical.

It is *like* the hypothetical, insofar as Twitter encouraged independent developers to build on its platform. What I just said is an assertion of fact, which, in court, may entail marshaling evidence. But Twitter would make this process easier by the following statement in its Developer Rules of the Road:

"We want to empower our ecosystem partners to build valuable businesses around the information flowing through Twitter."

That's like the fair promoter saying, "come on over and sell your nectarines!"

But the situation for Twitter's independent developers is *not like* the above hypothetical in a most critical respect. Twitter's rules also clearly say:

"Twitter may update or modify the Twitter API, Rules, and other terms and conditions, including the Display Guidelines, from time to time its sole discretion by posting the changes on this site or by otherwise notifying you (such notice may be via email). You acknowledge that these updates and modifications may adversely affect how your Service accesses or communicates with the Twitter API. If any change is unacceptable to you, your only recourse is to terminate this agreement by ceasing all use of the Twitter API and Twitter Content. Your continued access or use of the Twitter API or any Twitter Content will constitute binding acceptance of the change."

That muddies up the reasonableness of your reliance. That shifts the focus to you, the reasonableness of your persistence, the path you took in the face of an unequivocal warning.

It's as if the fair promoter had said, "Yeah, we do have a community group that wants fresh fruit at the fair. Tell you what, head over, I'll see what I can do to make space. But look, no promises. I have a deal with a big food distributor and they may not want you there. We'll see if we can slip you in the back unnoticed, at least for the first few days."

Photo by Karen / Flickr.