Mastodon’s “Use-Wrap” Trademark Policy

As readers may know, this Blog has moved its social media presence from Twitter to Mastodon.  Elon Musk was so traumatized by our move that he volunteered to step down as CEO of Twitter, but we will stay on Mastodon until he really relinquishes control.  For now, Mastodon is okay.  The site is attractive, there are no flame wars, and there has been some productive engagement with toots (that’s what Mastodon posts are called) linking to Blog posts.  

Mastodon, since you asked, is not like Twitter, but it is sorta like Twitter.  There are no ads (nice), and the site is a federation (also kinda nice, but also kinda confusing).  I may not have this entirely right, because Mastodon has its own vocabulary that I have not taken the time to master, but it seems that when you join Mastodon, you join an “instance,” and each instance is run by its own moderator or team of moderators.  It has a very communitarian feel, which I find very appealing and cozy.  The instances are all linked, so you can see posts that come from anywhere on Mastodon.  I’m not sure that it matters which instance you join, so I asked, and some enlightened Mastodonian explained that the moderators on your instance might adopt editorial or curatorial policies that you don’t like, and then you can switch instances.  There are instances associated with law and even with lawprofs, but I landed where I landed, and I have yet to discover any reason to switch instances.  

Mastodon attracts the technically oriented.  They are a welcoming crowd, in my experience.  A lot of people who are interested in AI and web design are now followers of the Blog’s Mastodon account.  I welcome their interest, but I can’t really follow what they are talking about on their own feeds.  There are a lot of Mastodon accounts that just promote Mastodon and “reblog” other people’s toots (see, specialized jargon).  I think the Blog has gathered followers more quickly on Mastodon than it did on Twitter, but there are not very many people with whom I regularly interact on Mastodon the way I did with people on Twitter.  Because Mastodon is the new kid on the block, there is a lot of navel gazing, a lot of discussion of “the bird site,” and a lot of cheerleading.  It’s sweet, but not as instructive as the lawprof Twitter feeds.  Mastodon also does not have the “quote Tweet” feature and doesn’t really support threads, so conversations can be hard to follow.  But as a result, people don’t really fight the way they do on Twitter, not that I experienced much of that in the collegial part of Twitter where the Blog resided.

And yet, collegial conversations do occur on Mastodon, which brings me to today’s topic.

Thanks to Sarah Burstein for calling my attention to Mastodon’s Trademark Policy.  Sarah highlighted the following language from said policy.  

To use our trademarks beyond what is considered “fair” or “nominative” use, you must follow these guidelines. By making use of our trademarks, you agree to abide by the following terms and conditions. You further agree that any dispute arising in connection with your use of our trademarks or under these terms and conditions shall be under the exclusive jurisdiction of the state and federal courts of New York in the United States of America and that the state and federal courts of New York shall have personal jurisdiction over you for the purposes of adjudicating any dispute concerning the use of our trademarks or these terms and conditions.

You agree to defend and indemnify Mastodon gGmbH from and against any and all claims and losses brought by a third party in connection with your use of the Mastodon trademarks.

And here I am, making use of Mastodon’s logo.  If Mastodon were to consider this a violation of its Trademark Policy, have I agreed to be sued in New York?  That seems harsh, but I don’t think it would be in my case, because I read Mastodon’s Trademark Policy, and so when I used their logo, I did so knowing that I could expose myself to a barely measurable risk of legal action.

But is this “use-wrap” Trademark Policy generally enforceable?  Can Mastodon really force anybody worldwide to litigate in New York state and federal courts just by putting some language on its website?  The answer, I think, turns on notice.  I don’t know how Sarah found Mastodon’s Trademark Policy.  My first hunch was that it was linked to Mastodon’s Terms of Service, but when I went to that page, I did not find a link to its Trademark Policy.  I had to do a Google search to find the policy.  To be honest,  I don’t recall agreeing to terms of service when I joined Mastodon, but perhaps I did.  Did I agree to Mastodon’s terms of service or the terms of service of the instance that I joined?  Again, it’s all a blur.  I was still trying to figure out what a “toot” is back then.  What an ordinary user agreed to when they signed up could be very important in determining whether that user could be bound by the Trademark Policy.

As we learn from Nancy Kim’s work, or from Jack Weinstein Berkson opinion that relies on Nancy’s work, the standard is that a reasonable web browser would have to be on notice that, by using the site, they were bound by the terms at issue.  As noted above, I am on notice of the Trademark Policy, thanks to Sarah, and Sarah is on notice.  However, if the facts are as they seem to be, the average user of the Mastodon site would have no idea of the Trademark Policy and should not be bound by it.  

In order to make that policy binding, Mastodon would have to include the policy in its terms of service and require that users actively click on “I agree to the terms of service” before they could use the site.  A hyperlink to the Trademark Policy in the terms of service might be enough, but it really shouldn’t be, because the average web browser is highly unlikely to use hyperlinks to read all of the policies incorporated by reference into terms of service.  In addition, the Trademark Policy was updated last month.  

Mastodon’s Terms of Service provides this policy on changes:

12. Changes

Mastodon reserves the right, at its sole discretion, to modify or replace any part of this Agreement. It is your responsibility to check this Agreement periodically for changes. Your continued use of or access to the Website following the posting of any changes to this Agreement constitutes acceptance of those changes. Mastodon may also, in the future, offer new services and/or features through the Website (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of this Agreement.

However because the Trademark Policy is not specifically referenced within the Terms of Service, I don’t think users are automatically bound by changes to the the Trademark Policy.

Addendum:  It occurs to me that Mastodon is a global phenomenon, and I only spoke of what I know of how wrap contracts operate under U.S. law.  I really don’t know how foreign courts treat browsewrap contracts, but my guess would be that foreign jurisdictions are generally more protective of user rights than is U.S. law.