As the New Yorker caption goes, “On the Internet, nobody knows you’re a dog.” Update that for 2016: on the Internet, nobody knows you’re a bot. Twitch, a video streaming platform that primarily broadcasts people playing video games, has filed a lawsuit in US District Court against those who sell bot software and services that create artificial viewers for Twitch channels.
Any software program that performs repetitive tasks may be called a bot. Many bots are useful or benign, but there are also harmful versions, including those that generate fake traffic to websites and fake clicks on advertisements. For companies that rely on viewer numbers to sell advertisement space, assess popularity of content, and pay content producers, fake traffic poses a significant problem.
Twitch streams content created by members of the site, allowing other users to watch and chat about the videos. Much of the content is live streams of members playing video games, but Twitch also streams tabletop gaming and non-gaming content like The Joy of Painting and social eating.
The site monitors viewership for particular channels to help people find the most popular (and presumably highest quality) channels. They also use viewership to select channels for admission to the Partnership Program, which offers creators a share of the advertising revenue generated by their channels. Some creators deploy fake viewer bots in order to take advantage of the benefits Twitch offers to more popular channels. Channels may also be botted by spammers or by competitors who want to flood a channel’s chat with inanities to drive away or drown out real conversation.
Twitch’s legal strategy appears to be spaghetti-inspired – throw defendants and claims against the wall and see what sticks.
According to the complaint, most of the defendants openly sell bot services on sites with names like Twitch Buddy, TwitchShop, TwitchSwiss and StreamHomies. Twitch broadcasters can buy fake viewers for their channels and fake comments for their chatrooms. One of the defendants allegedly owns both Stream-Viewers, which openly sells bot services, and Babatools which sells software that allows Twitch broadcasters to create their own fake traffic. Although Twitch claims that the owner of TwitchStarter is also offering bot services, he claims to offer only legitimate promotional services and membership in a group of broadcasters who agree to follow each other.
Twitch’s statement of claim puts forward nine different legal arguments, ranging from trademark infringement to breach of contract to violations of the Computer Fraud and Abuse Act (CFAA).
As TechDirt editor Mike Masnick points out, the CFAA claim is shaky. The statute is meant to criminalize hacking secured systems. It should not be extended to protect against registering accounts on a publicly-accessible website, even if those accounts are meant to be used in a manner that is contrary to the website’s terms of service.
The trademark and cybersquatting claims may be met with a nominative fair use defense. Nominative fair use was developed by the 9th Circuit Court of Appeals in New Kids on the Block v. News America Publishing. They held that a newspaper could not reasonably conduct a survey about the New Kids on the Block without mentioning the name of the band. Likewise, it would be difficult to describe services specifically related to Twitch without using the word “Twitch.” In Toyota v. Tabari, the 9th Circuit specifically addressed domain names, finding that nominative use of Toyota’s “Lexus” trademarks in the Tabaris’ domain names was fair use as long as the websites did not create confusion about an association between the defendants and Toyota. Since the defendants’ websites typically highlight the steps they take to avoid detection by Twitch, there is little chance that anyone would think Twitch owned or endorsed those sites.
However, there are some facts that may distinguish the case at hand from Tabari. The Tabaris were using the “Lexus” trademark in descriptive URLs for their business, but the actual business name did not contain the “Lexus” mark. In this case, several of the websites are using the word “Twitch” directly in the name of their service. Many of the sites also employ a purple colour scheme and graphical elements similar to the Twitch logo. The court in Tabari was careful to note that acting as a broker for Lexus vehicles was not illegal or contrary to the contracts between Toyota and their dealers. As bot services are illegitimate, using protected trademarks to describe them may not be considered fair use.
The core of the claim rests in the breach of contract and fraud arguments. The defendants must have registered accounts on Twitch in order to develop and test their software. When registering, they would have agreed to the plaintiff’s Terms of Service, including restrictions on botting and circumventing security features. Twitch claims that the defendants breached the Terms of Service by developing and selling their services and by inducing content creators on Twitch to use the platform in an illegitimate manner. Twitch’s fraud claims are based on the fact that the defendants represented that they intended to abide by the Terms of Service when they signed up for a Twitch account despite their illicit intentions.
While researching this post, I visited each of the websites listed in the complaint. The websites of two of the defendants, Twitchswiss.com and Streamhomies.com, have already been taken down. Regardless of the outcome of the lawsuit, by making a show of strength Twitch may already be getting what it really wants: for illegitimate bot services to go out of business.
Jacquilynne Schlesier is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.
 Twitch Interactive, Inc. v. Justin Johnston et al, California Northern District Court case number 5:2016cv03404, filed June 17, 2016.