Sep 18, 2014 · 5 minutes

UPDATED: Twitpic just announced that it has been acquired, noted here as a speculative possibility for why it was so concerned with obtaining a federal trademark


Two weeks ago, Twitpic, one of the earliest platforms for sharing photos on Twitter, announced it was shutting down. And while the advent of Twitter's own native sharing tools has rendered Twitpic largely irrelevant, it was still sad to see a company that was so integral to shaping how we share photos on the social web close up shop.

Twitpic assured users they would be able to export their own photos before the site goes dark on September 25. But a group of Internet archivists have claimed that Twitpic is blocking their attempts to preserve the site's photos in full, which include the historic snapshot of Flight 1549 after landing on the Hudson River. Obviously that image has been recreated elsewhere, but as one of the archivists tells GeekWire, "it’s unrealistic to say that every important photo with historic context has been pulled elsewhere." (Luckily, Mashable preserved for posterity this photo from Twitpic founder Noah Everett after he was arrested for public nudity).

This is only the latest in what's become a very strange demise for Twitpic. The tale could have ended with the shut down announcement -- another influential yet outmoded startup lost in the gears of corporate innovation, doomed to live on solely in the memories of its earliest adopters. But there may be more to this story.

The first indication that something was amiss came in Everett's goodbye post, where he made a bold accusation: That Twitter threatened to cut off access to its API if Twitpic didn't abandon its application for a federal trademark:

We originally filed for our trademark in 2009 and our first use in commerce dates back to February 2008 when we launched. We encountered several hurdles and difficulties in getting our trademark approved even though our first use in commerce predated other applications, but we worked through each challenge and in fact had just recently finished the last one. During the “published for opposition” phase of the trademark is when Twitter reached out to our counsel and implied we could be denied access to their API if we did not give up our mark.
The narrative of the big bad tech giant bullying the small startup is an easy one to embrace -- especially because this isn't the first time Twitter's put the squeeze on third party developers by threatening to cut off API access. But the full story is more complicated than the outraged masses on social media might have you believe. A Twitter spokesperson told me it was perfectly happy to let Twitpic continue operating under its name, it just didn't want the company to have federal protection of its trademark. When I mentioned that to Everett, he said the trademark was "a matter of principle."

If we know anything about tech firms it's that when a company does something "as a matter of principle" there's usually a pretty strong business reason behind it too. So I asked Ed Timberlake, a trademark and copyright lawyer at Timberlake Law in North Carolina, to explain just how important it is to Twitpic's continued existence to have that federal trademark protection.

He told me that Twitpic already has a "common law trademark" that protects it against a company named, say, Twitpix, from launching a similar service. But by requesting a federal stamp of approval for its trademark, that could reasonably be seen by a judge as a threat to Twitter's existing trademarks:

Nobody (as far as any of us remember) was using a twit + anything trademark in connection with any kind of social sharing app before Twitter. Under these circumstances, it doesn’t seem unreasonable for Twitter to take the position that they wouldn’t object to Twitpic using Twitpic as a trademark, but would object to federal registration of Twitpic as a trademark for a photo-sharing app (particularly, one dependent on Twitter’s API).
Under this interpretation, Twitter wasn't being a bully, leveraging vast legal resources to keep an upstart down. It was merely acting reasonably within the scope of trademark law and expecting Twitpic to do the same, even going so far as to continue letting the company use both its common law trademark and Twitter's API if it did.

So if Twitter neither posed a threat to Twitpic's livelihood nor made unreasonable legal claims, why would Everett make such a big to-do over these demands? One highly speculative possibility is that Twitpic was looking to sell off its remaining assets, and a federally-registered trademark was a stipulation of any potential sale. Everett did not respond to my request for comment on this theory.

Nor did he respond to my request for comment on the recent allegations that the site is blocking attempts to archive its photos. One reasonable explanation, archivist Jason Scott tells Geek Wire, is that Twitpic doesn't want the bandwidth burden of fulfilling such a large download request.

“A lot of people don’t like it that we download a lot,” Scott told the outlet. “I can understand their frustration.”

But that doesn't explain Everett's other odd behavior, like the fact that he cryptically told the archive team to trust him, but hasn't been in touch since. What we do know is that Everett has a new app in Beta called Pingly, a self-described "messaging platform working to evolve email." And according to the Post and Courier, a newspaper in Charleston, SC where Everett lives, he plans on shutting down a second app Heello, an open-source alternative to Twitter that never took off.

By making headlines and telling a narrative in which he's a small-time disruptor fighting against the powers-that-be, he could be trying to attract attention ahead of a larger rollout of Pingly. But the fact that he's disappeared from social and hasn't responded to media requests regarding the latest controversy over archived photos would seem to run counter to that theory. Maybe he's just heads-down preparing Pingly for its big launch. In any case, there's reason to believe that the saga of Twitpic's death is far from over.

[illustration by Brad Jonas]