Disappointing: Twitch Brings CFAA & Trademark Claim Against Bot Operators

from the gotta-be-a-better-way dept

I think most people agree that bots that drive up viewer/follower counts on various social media systems are certainly a nuisance, but are they illegal? Amazon-owned Twitch has decided to find out. On Friday, the company filed a lawsuit against seven individuals/organizations that are in the business of selling bots. There have been similar lawsuits in the past -- such as Blizzard frequently using copyright to go after cheater bots. Or even, potentially, Yelp suing people for posting fake reviews. When we wrote about the Yelp case, we noted that we were glad the company didn't decide to try a CFAA claim, and even were somewhat concerned about the claims that it did use: including breach of contract and unfair competition.

Unfortunately, Twitch's lawsuit uses not just those claims, but also throws in two very questionable claims: a CFAA claim and a trademark claim. I understand why Twitch's lawyers at Perkins Coie put that in, because that's what you do as a lawyer: put every claim you can think of into the lawsuit. But it's still concerning. The CFAA, of course, is the Computer Fraud and Abuse Act, which was put in place in the 1980s in response to the movie War Games (no, really!) and is supposed to be used to punish "hackers" who break into secure computer systems. However, over the years, various individuals, governments and companies have repeatedly tried to stretch that definition to include merely breaching a terms of service. And that appears to be the case here with Twitch:
To provide their services and with the goal of defrauding Twitch’s users, Defendants knowingly and intentionally used bot software that accessed Twitch’s protected computers without authorization or in excess of the authorization granted to them by the Terms. Also without authorization or in excess thereof, Defendants willfully, and with the intent to defraud, accessed Twitch’s protected computers by means of that fraud, and intended to and did use Twitch’s protected computers. For example, Defendants represent that they can access Twitch’s protected computers and circumvent Twitch’s security measures in order to provide their bot services without being detected by Twitch.
Except, it's a pretty big stretch to argue that bots accessing your open website that anyone can visit requires some kind of specific "authorization." Yes, cheating bots are annoying. And yes, they can be seen as a problem. But that doesn't mean that Twitch should be trying to expand the definition of the CFAA to include accessing an open website in a way the site doesn't like. As a company, Twitch has been on the right sides of lots of important tech and policy issues. It was vocal in the SOPA fight. It even sponsored us here at Techdirt for our net neutrality coverage. It's generally viewed as a pretty good internet citizen.

So it's especially disappointing that the company has chosen to come down on the wrong side of another really important tech policy issue: abuse of the CFAA.

The trademark claim is also somewhat troubling, though not as much. But it's also a huge stretch:
As described above for each Defendant, Defendants use the TWITCH mark in domain names and on their websites in connection with the provision of bot services. Defendants’ use of the TWITCH mark in commerce constitutes a reproduction, counterfeit, copy, or colorable imitation of a registered mark for which the use, sale, offering for sale, and advertising of their bot services is likely to cause confusion or mistake or lead to deception.
No one is visiting the sites of these bot makers and assuming that they're endorsed by Twitch. I mean, they're all pretty clear that their entire purpose is to inflate viewers/followers on Twitch, which is clearly something that Twitch is against. As we've noted over and over again, having a trademark does not mean that you get to block any and all uses of that word. Using a company's trademarked name in a way that refers to that company is generally seen as nominitive fair use (basically using the trademark in a descriptive manner, rather than as a way of deceiving people into thinking that there's an endorsement).

There's a similar "anti-cybersquatting" claim in there as well, but that's basically just a repeat of the trademark claim, "for the domain name," so the same thing applies.

Twitch doesn't need to use either of these claims, and it's disappointing that they and their lawyers have chosen to do so. This is not to say that bots and fake followers are okay. But these kinds of cases can set really bad precedents when a company like Twitch decides to overclaim things in a way that harms the wider tech and internet industry. I'm not even sold on the need to litigate these kinds of issues at all, prefering to think that a tech-based approach should be good enough. To be sure, Twitch notes that it's still mostly focused on technological and social moderation methods for stopping bots, but has decided to go the lawsuit path as a "third layer" of attack against bots.

Even if it felt it needed to go down that path, it really should have thought more carefully about bringing claims under the CFAA and trademark law. One hopes that the company will reconsider and perhaps drop those claims, even if it wants to pursue other claims, such as breach of contract.
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Filed Under: bots, cfaa, cheating, trademark
Companies: amazon, twitch

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  1. icon
    Mike Masnick (profile), 21 Jun 2016 @ 6:35am

    Re: Use of Trademark

    Mike you're entirely wrong about the use of the Twitch trademark being "nominative fair use." Fair use doesn't apply to trademarks.

    Um. You're wrong.

    https://en.wikipedia.org/wiki/Nomin ative_use
    http://www.arnoldporter.com/~/media/files/perspectives/publications/2012/12/nominative-fair -use-legitimate-advertising-or-tr__/files/publication/fileattachment/nominative-fair-use.pdf
    https:// cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm#10
    http://rmfpc.com/the-fair-use-of-anothers-tr ademarks/

    Instead, this is explicitly correct use. The entire point of a trademark is to dispositive lay identify the mark owner, so there can be no ambiguities in what entity you're referring to. The bot company's use of the Twitch mark does just that - it explicitly tells users that their services work on Twitch, which is the entire point of trademarks.

    That's the point of *nominative fair use*. The point of trademarks is to avoid consumer confusion and thinking that one product is something that it's not.

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