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, .

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 and .

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 , , and . 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 (CFAA).

As , 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 .

The trademark and cybersquatting claims may be met with a nominative fair use defense.��Nominative fair use was developed by the 9^th Circuit Court of Appeals in . 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 , the 9^th 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.

[1] Twitch Interactive, Inc. v. Justin Johnston et al, California Northern District Court case number 5:2016cv03404, filed June 17, 2016.

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Some of us have engaged in this practice for years, but never in the context of a formal “notice and notice” regime implemented by the Copyright Modernization Act at the start of the new year. So what exactly does this regime entail and how might it affect our online viewing habits?

“Notice and notice” regime

The is a uniquely Canadian approach and has, in fact, been operating in an unofficial capacity for over ten years before becoming law on January 1, 2015. The regime requires internet intermediaries, such as Internet Service Providers (ISPs), to forward infringement notices sent by copyright owners to subscribers whose internet addresses have been identified as sources of possible infringement. These notices must include details on the claimant, the copyright works at issue and the alleged infringing activity.

If the intermediary fails to forward the notification, it must supply an explanation or face damages of up to $10,000. Intermediaries are also required to retain information on the subscriber for six to twelve months.

The notice and notice regime as it affects online viewership

So does this law apply to Internet video streaming? And if so,��how?

It appears that very few legal concerns arise with regard to authorized online video services operating in Canada. Examples include Netflix Canada, Shomi, CraveTV, YouTube, and streaming videos that originate��directly from broadcasters or content creators. Viewers who stream from these sites are unlikely to be forwarded notices of infringement because these content providers have obtained permission to make the copyrighted content available or have made the content easily removable by rights owners.

Next up for consideration are the authorized services not currently serving the Canadian market. Think Hulu, Amazon Prime, and the US version of Netflix. Here, the analysis gets a bit tricky.

Canadian users who��access this content by circumventing "geo-blocks" (a method by which��online service providers block users outside a particular geographic area from accessing their content) via a “virtual private network” (VPN) are likely violating the service provider's terms of service. But that is not all.

Geo-blocks could potentially be considered technological protection measures (TPMs). A TPM is any effective technology, device or component that controls access to a work whose use is authorized by the copyright owner, or restricts the exercise of an exclusive right held by the copyright owner ( of the Copyright Act).��It is a prohibition to circumvent a TPM (), and the copyright owner is entitled to remedies against the infringing individual ().

This being the case, circumvention of a geo-block via a VPN to stream copyright protected material might constitute an infringement and could result in the service of an infringement notice.

Finally, there are the unauthorized streaming websites that offer free content without having obtained permission from copyright owners. This is��another potential scenario in which infringement can occur.

Typically, pursuant to of the Copyright Act, a person who, for the purposes of allowing the telecommunication of a work or other subject-matter through the Internet, provides digital memory in which another person stores the work does not, by virtue of that act alone, infringe copyright in the work. However, these unauthorized websites, because they are “enabling” infringement, can be shut down pursuant to ��if they are located in Canada.

As for users of such websites,��it is currently uncertain whether their act of streaming video would be found to infringe. Under , a temporary reproduction of a copyright protected work, if completed for technical reasons, is not an infringement. When streaming a video, either a full-length temporary copy is created on your computer via the caching process (and will be deleted the moment the video is closed), or the data is deleted as you watch. Thus, video streaming does not involve actually downloading a ���������Ա�Գ������DZ�� of the work; at most, it merely creates a temporary�����DZ��.

However, in ,��the Federal Court of Appeal��held that “ephemeral” copies -- reproductions that exist solely to facilitate a technological operation by which audiovisual work is created or broadcast -- are, if unauthorized, an infringement of the copyright holder’s rights.

Although this holding was made in the context of broadcasting, it may be applicable in the streaming context. As leave to appeal to the Supreme Court of Canada was granted and oral arguments were recently on March 16th, we will soon be hearing the SCC's opinion on the matter.

The jurisprudence on temporary reproductions in other jurisdictions appear just as unsettled. For instance, the that there is no violation when “a reproduction manifests itself so fleetingly that it cannot be copied, perceived or communicated,” despite some courts holding that . Overseas, meanwhile, the Court of Justice of the European Union (CJEU) ruled on June 5, 2014 that .

However, even if viewers are found to have infringed, the only immediate recourse available to the rights holder appears to be sending a notice of claimed infringement to the host site pursuant to .

Bottom Line

To be safe, it might be wise to stick to your authorized Canadian content providers. But if you are unsatisfied with��the offerings of those sites and contemplate streaming an episode or two of your favourite show from an unauthorized source, tread with caution. You just might find yourself breaking bad.

Sally Kang��is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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Welcoming Remarks

Practical Examples of UGC

Legal Aspects of UGC

Specific UGC Legal Aspects

Contractual Practices

International Law Aspects

Concluding Remarks

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“Reflections on the Supreme Court of Canada 2012 Copyright Decisions”

“Advocacy Skills and IP: Observations from the Bench”

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As previously reported by the IPilogue , the Supreme Court of Canada is not the only national court grappling with the term “communication to the public”. Similar to two of the internet copyright cases earlier this month and reported by the IPilogue , questions related to transmissions of protected content over the internet have also arisen in the United Kingdom.

In the case of ITV v TVCatchup, Justice Floyd of��the UK High Court of Justice has returned with a disposing with a series of issues which arose during his initial decision in the case in July and referring a question relating to the definition of “communication to the public” to the European Court of Justice (ECJ). As , TVCatchup is a live-streaming service that allows users to view television broadcasts on their computers, tablets, smartphones, and other internet-capable devices.�� The service individually identifies users and then serves them content based on their existing television licence (they can access channels like ITV, Channel Five, and the BBC, but viewers can only receive content that they are legally entitled to watch based on their existing television licence).�� TVCatchup funds its operation by showing advertisements before each live stream begins and by “skinning” the stream such that advertisements served by TVCatchup are displayed around the edges of the window displaying the live stream.�� It is also important to note that TVCatchup does not alter the original stream, so any advertisements shown by the broadcasters as part of their television transmission are not affected.

Although he had initially planned to refer two questions to the ECJ this past summer, Justice Floyd deferred the case awaiting a ruling in Football Association Premier League v QC Leisure by the ECJ. As a result, the Justice Floyd was able to apply that judgement to TVCatchup and decide an issue related to “reproduction of a substantial part” of films in memory buffers and on screens. Consequently, Justice Floyd is now only referring a single question to the ECJ on “communication to the public”.

Based on his ruling in July, Justice Floyd entertained the idea of using the definition of “communication to the public” from a case called Airfield.�� This case was actually a set of joined cases heard by the ECJ ( about the encrypted re-broadcasting of satellite television signals. Following a review of the facts, Justice Floyd ultimately distinguished Airfield from TVCatchup and decided to ask the ECJ the following questions:

"Does the right to authorise or prohibit a "communication to the public of their works by wire or wireless means" in Article 3.1 of the Directive extend to a case where:

1.�� Authors authorise the inclusion of their works in a terrestrial free‑to‑air television broadcast which is intended for reception either throughout the territory of a Member State or within a geographical area within a Member State;

2.�� A third party (i.e. an organisation other than the original broadcaster), provides a service whereby individual subscribers within the intended area of reception of the broadcast who could lawfully receive the broadcast on a television receiver in their own homes may log on to the third party's server and receive the content of the broadcast by means of an internet stream?

Does it make any difference to the answer to the above question if:

(a) The third party's server allows only a "one‑to‑one" connection for each subscriber whereby each individual subscriber establishes his or her own internet connection to the server and every data packet sent by the server onto the internet is addressed to only one individual subscriber?

(b) The third party's service is funded by advertising which is presented "pre‑roll" (i.e. during the period of time after a subscriber logs on but before he or she begins to receive the broadcast content) or "in‑skin" (i.e. within the frame of the viewing software which displays the received programme on the subscriber's viewing device but outside the programme picture) but the original advertisements contained within the broadcast are presented to the subscriber at the point where they are inserted in the programme by the broadcaster?

(c) The intervening organisation is:

(i) providing an alternative service to that of the original broadcaster, thereby acting in competition with the original broadcaster for viewers; or

(ii) acting in competition with the original broadcaster for advertising revenues?”

The ECJ’s response to this question could represent an important precedent in the on-going battle over the transmission of protected content over the internet.

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As Facebook welcomes its 200 millionth active user, now is a good time to consider some of the challenges posed to our society by the exponential rise of ubiquitous cellphone cameras and social networking websites, particularly with respect to personal privacy.�� The large scale peer-to-peer sharing of video and multi-media files on services like Facebook and YouTube creates challenges for privacy regulation that reach beyond the scope of current privacy laws.�� While existing privacy and data protection laws focus on unauthorized gathering and dissemination of personal data, they mainly focus on text records.�� They do not distinguish between harms arising from the unbridled collection, aggregation, and dissemination of, say, consumer spending profiles or health records in text format as compared with candid video and multi-media files capturing people's activities in their everyday lives.�� Today's "net generation" is growing up in a society where everything they do is fair game.�� Drunken parties, and intimate moments with partners may be captured on video and posted to YouTube for all to see.

Although it is not often articulated in case law or literature, harms caused to individuals by loss of privacy in relation to candid video files can be quite different in nature from harms that may be caused by unauthorized dealings with text-based personal profiles.�� Video-based harms may relate to general embarrassment or humiliation, loss of employment, general harm to reputation, or simply feeling constrained in life because of the awareness that everything we do might be captured on video and posted online for the world to see.�� Privacy law is not currently targeted at these kinds of harms, relying as it does on a clear public/private distinction, which is now breaking down in the online video context, and usually requiring a concrete showing of economic harm which is often absent in these kinds of situations.��

The four privacy torts in the United States, for example, deal with:�� offensive physical intrusion into another's seclusion; commercial appropriation of another's name or likeness; public disclosure of private facts if the disclosure would be highly offensive to the subject and is not of legitimate public concern; and, false light publicity.�� In the online social networking context, it is usually difficult, if not impossible, to establish the requisite degree of offense or intrusion when photographs and videos posted online are merely embarrassing or humiliating.�� Showing a picture of someone being unfaithful to their partner, or of drinking and smoking, or even simply being intimate with a good friend may well affect an individual's reputation.�� However, such images would unlikely rise to the level of offense or intrusion required for the privacy torts.�� Such images also would be unlikely to support a false light publicity claim.�� They would also generally not be distributed for commercial profits so would not support a misappropriation claim.�� Thus, there are few legal options for victims of unauthorized online disseminations of video and multi-media files depicting private moments.��

While there has been much academic debate in this new millennium about better protecting privacy in an increasingly online and global world, the discourse still tends to focus on issues such as protecting the privacy of text-based health or financial records in the hands of health care providers, financial institutions, and government agencies.�� Little attention has yet been paid to privacy problems arising from the exponentially growing popularity of online social networking, particularly with respect to video and multi-media files shared over such services.�� Now is the time to start thinking about protection of individual privacy from peer-based incursions into each other's lives.�� In a , I examine the gaps in the current legal system relating to online video privacy in the Facebook generation, and suggest the development of a multi-modal approach to online video privacy. ��This approach incorporates aspects of a number of regulatory modalities including legal rules, market forces, emerging social norms, system architecture, public education, and non-profit institutions.

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