A recent dispute between an advertiser AXTS Inc. ("AXTS") and a video production company GY6vids ("GY6") produced an interesting issue involving the federal Computer Fraud and Abuse Act (CFAA) – that is, whether an entity that allegedly overloaded another company's YouTube channel content with a flood of "dislikes" following a contractual dispute is liable under the CFAA for accessing a protected computer "without authorization." (AXTS Inc. v. GY6vids LLC, No. 18-00821 (D. Ore. Oct. 24, 2018)).
We have been closely monitoring the evolving state of the law regarding CFAA liability for certain commercial web scraping and related practices. The instant case between AXTS and GY6 is a little different in that the claim did not arise from AXTS's alleged access to video content stored on GY6's network, but publically-accessible videos stored on a third-party's (e.g., YouTube) servers.
In the case, AXTS hired GY6 to create a promotional video featuring AXTS's products on YouTube, with payment calculated based on the number of views. After the video allegedly garnered over a million views the second month (and a hefty bill), AXTS apparently did not pay the invoice and questioned the analytics as well as how the video was classified on YouTube. AXTS asserted that the parties' agreement was unenforceable, among other things. The parties could not resolve the issue and GY6 began noticing that other videos on its YouTube channel started receiving thousands of "dislikes," allegedly as part of an anonymous "cyberattack" on its channel that it attributed to AXTS. AXTS eventually filed a breach of contract suit, and in response, GY6 advanced several counterclaims, including breach of contract, intentional interference with economic relations and CFAA claims. AXTS moved to dismiss (note: the court's consideration of the first two claims are beyond the scope of this post).
The GY6 dispute is another in a line of cases that questions whether the CFAA is a means for challenging unwanted access to online content. We still await the Ninth Circuit's decision in the closely-watched appeal in the hiQ case, where the Ninth Circuit is considering the applicability of the CFAA as a tool against scraping of public websites.
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