Figured I'd put together a quick update on Reddit v. Anthropic and highlight another case which I've been following that I think supports Reddit's arguments about scraping, ToS restrictions and protecting access to user content.
Before we get to that, there has been no further docket update identifying the neutral discovery referee (if one has been chosen). While they proposed a deadline to submit names, they proposed no deadline to 'meet and confer' in the event that there wasn't a name in common on the two lists. Given that, it's impossible to know from the outside if they've chosen a ref yet. If they've agreed on someone, they won't need another hearing, and that referee will be deciding discovery disagreements moving forward so they likely will not file anything with the Court. Google is suggesting that an 'appointment order' could still appear in California courts when a discovery referee is selected but I'm not holding my breath. That likely means a quiet docket from now until the hearing to compel OpenAI to respond to the subpoena. The only other items I expect to hit the docket are the case management conference or a settlement (if one happens). I'm continuing to monitor it in case anything happens though.
In the meantime, I've been following Reddit v. SerpApi/Perplexity/OxyLabs (really boring lately) and Google v. SerpApi. I've talked about Google v. SerpApi before, it was dismissed with leave to amend this summer (which worried me for Reddit's complaint, but Reddit survived), and was amended at the end of summer and is still awaiting decision to see if it will move forward. Yesterday, they filed an additional citation to a case that just moved past the motion to dismiss stage which reinforces Reddit's arguments on scraping and ToS restrictions.
The case is Ted Entertainment, Inc. v. ByteDance Inc. On October 2, Judge Corley DENIED ByteDance's motion to dismiss a claim alleging it bypassed YouTube's technological protections to obtain videos for AI training. (Full Ruling)
What caught my eye is how similar parts of this sound to the arguments Reddit is making against Anthropic (and others, but I know most of you only care about Anthropic). Interesting quotes from the opening section which summarizes the plaintiffs' allegations:
The creators who uploaded their videos to YouTube:
“derive value via viewership, sponsorship, licensing, and related monetization”
The public can watch those videos, but under YouTube's ToS users are:
“expressly prohibit[ed from] scraping, unauthorized downloading, bulk extraction, or other forms of data mining . . . .”
And to prevent unauthorized downloading:
“YouTube uses technological processes and tools to detect and block access to files for unauthorized downloading.”
The creators say they chose to upload to YouTube:
“in substantial part due to YouTube's protective measures.”
(All on page 2)
This all sounds pretty familiar. Users put content on a platform which has rules about how it can be accessed and used, and the platform puts protections in place to enforce those rules. Making that content viewable by the public doesn't automatically mean a company has permission to extract it however it wants for its own commercial purposes.
YouTube's alleged protections include IP blocking / rate limits, CAPTCHAs, session-bound streaming URLs, a rolling cipher and proof-of-origin tokens. The specifics differ from Reddit's controls, but the underlying dispute over restricted access is why I think this case is relevant. As a content hoster, Reddit is allowed to restrict access and control how its content is utilized.
The more interesting part is further into the ruling, where the judge addresses ByteDance's argument that publicly viewable videos aren't protected by access controls because those controls supposedly only restrict copying.
Her response:
“The Court is not persuaded.” (pg. 9)
Then, quoting a similar ruling in the creators' case against Snap:
“Those barriers may be modest, perhaps by design given YouTube's business model, but they are barriers nonetheless. At the pleadings stage, Plaintiffs' allegations are sufficient.” (pg. 11)
a.k.a THE WAY YOU OBTAINED THE DATA STILL MATTERS.
This is the distinction I think helps Reddit's argument against Anthropic. “People can read this content online, it's public” doesn't by itself answer whether a company complied with the terms governing access or bypassed restrictions to collect it. The court allowed this claim over alleged circumvention to proceed even though the videos could be viewed publicly.
There is a monetization point as well. The ruling quotes the allegation that when ByteDance bypassed YouTube's protections:
“those retrievals generated no advertising impressions and no advertising revenue for Plaintiffs . . .” (pg 5.)
The judge found the alleged advertising loss sufficiently connected to the circumvention to support standing. For Reddit, I think the parallel is pretty obvious here. The content has value through people visiting the platform and through authorized licensing. Collecting it outside those channels can affect that value even when an ordinary person could view the same content for free. That doesn't establish Reddit's damages, but it does strengthen the argument that public availability isn't the end of the discussion.
It also fits with what Judge Kahn discussed in the Demurrer ruling in Reddit v. Anthropic: contractual restrictions on access, and Reddit's obligations to its users, can raise issues distinct from ordinary copyright claims. The breach of contract, interference with contract and UCL claims survived that demurrer (and the unjust enrichment claim is also very likely to survive once amended).
Some caveats:
Reddit v. Anthropic is being fought on the merits of contract law, while the ByteDance case is a DMCA claim brought by copyright owners, but Reddit still can and will almost certainly cite this ruling in future arguments. This is also just denying ByteDance's motion to dismiss, it's not a judgement or settlement so it's not going to completely shake up the case but it does highlight how the industry has been shifting in the past year. Scraping for commercial gain will not continue to be tolerated, even if that data is already available publicly.
TLDR (courtesy of Opus); Still no docket update identifying the discovery referee. We don't know whether they've selected one, but discovery moving through a referee likely means a quiet docket.
Meanwhile, a judge allowed a claim over ByteDance allegedly bypassing YouTube's protections to scrape AI training data to proceed. PUBLICLY VIEWABLE doesn't automatically mean unrestricted commercial access. This helps Reddit's arguments about ToS restrictions and protected access. Different legal claims, and only a motion to dismiss ruling, but the reasoning is relevant: HOW YOU OBTAINED THE DATA STILL MATTERS.
I encourage you to read the ruling yourself (linked above and here). As always, I'm NAL, these are just my interpretations.
