Twitch Brings CFAA & Trademark Claim Against Bot Operators

Master Disaster · June 21, 2016

Twitch has gone full Schwarzinegger in pursuit of people selling bots to artificially inflate viewer count and flowers on its platform. The question is, are they legal?

Quote

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.

They claim these bots breach the computer fraud act and also breach trademark law as the Bot sellers are using their logo illegally.

Quote

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:

And on the trademark claim

Quote

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.

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.

https://www.techdirt.com/articles/20160617/17441034737/disappointing-twitch-brings-cfaa-trademark-claim-against-bot-operators.shtml

Pretty interesting. I agree with the article in that applying CFAA to bots is insane, the bots do nothing that every single other client connected to their server is already doing, claiming these bots are committing computer fraud is just wrong otherwise all other clients must be committing fraud too.

Thoughts?

manikyath · June 21, 2016

14 minutes ago, Master Disaster said:

They claim these bots breach the computer fraud act and also breach trademark law as the Bot sellers are using their logo illegally.

well.. they're not wrong.

easy one first:

twicth's logo is their intellectual property, and if any service uses the twitch logo for its profit, it is of twitch's best interest to be either behind what that company is doing (as in, actively allowing them to use said logo) or to hammer them hard and force removal.

touchy one:

bots being computer fraud.. its a stretch, but once you look at it they're at least not too far from the truth. viewbots are used to "forge the numbers" in order to get higher on the list, or come out the books better. which isnt quite the definition of fraud, but it kinda implies any revenue made from the result of this activity is very, VERY touchy if it's "clean".

and i'd certainly not consider the activity of selling these services anywhere clean, because they tend to advertise themselves as "the only way to get big on twitch" or "all the big streamers do it" which creates a HUGE black mark on twitch's integrity as a legitimate company if people imply you can "buy" your way up the ladder.