A federal judge in California has refused to dismiss a lawsuit accusing ByteDance Inc. of circumventing YouTube’s technological protections of its site in order to access videos allegedly used to train its generative AI (genAI) tools.

Plaintiffs Ted Entertainment Inc. and Matt Fisher allege Defendant ByteDance Inc. unlawfully circumvented YouTube’s technological protection measures to access and scrape Plaintiffs’ video content in violation of 17 U.S.C. 1201(a).

The Plaintiffs upload original videos to YouTube, from which they allege they “derive[] value via viewership, sponsorship, licensing, and related monetization.”

Defendant ByteDance develops “artificial intelligence system[s]” to “generate video output from text and image input.”

Under YouTube’s terms of service, users are “expressly prohibit[ed from] scraping, unauthorized downloading, bulk extraction, or other forms of data mining . . . .”

YouTube also allegedly uses at least five “technological protection measures” (“TPMs”) to protect its content from unauthorized access and use:

1. an obfuscated signature system commonly referred to as a ‘rolling cipher,’ 
2. IP-based blocking and rate limiting that restrict high-volume automated access, 
3. short-lived, session-bound streaming URLs, 
4. CAPTCHA human-verification challenges triggered by automated activity, 
5. proof-of-origin tokens that verify requests originating from authorized client environments.

According to the complaint, the Defendant is developing several genAI products, including “MagicVideo” and “Seedance,” which attempt to “turn[] language prompts into audiovisual content.”

Developing these products “requires vast amount of [training] data.”

The Plaintiffs assert they never authorized the Defendant to use their videos to train the Defendant’s genAI models.

In research papers, Defendant’s employees disclosed using the three “large-scale YouTube-derived datasets”—HD-VILA-100M, Panda-70M, and HowTo100M—to train the company’s genAI models.

Defendant’s employees “admitted that they directly downloaded the HowTo100M dataset from YouTube, and some of their usage allegedly exceeded the license on the dataset.

The Defendant also allegedly bypassed the TPMs, using descrambling tools such as yt-dlp, which “circumvent[s]” YouTube’s normal access controls.

The Plaintiffs’ first amended complaint asserts a violation of Section 1201(a) of the Digital Millennium Copyright Act (“DMCA”).

The DMCA provides, in relevant part, that “[n]o person shall circumvent a technological measure that effectively controls access to a work protected by this title.” 17 U.S.C. § 1201(a)(1)(A).

The DMCA provides a private right of action for “[a]ny person injured by a violation of” section 1201. See 17 U.S.C. § 1203.

The Defendant sought to dismiss the complaint by claiming, among other grounds, that Plaintiffs lack standing to assert a claim under Article III.

Article III standing requires

1. Plaintiffs have suffered an “injury in fact” that is “actual or imminent,” not “conjectural or hypothetical,” 
2. the injury is “fairly traceable” to the defendant, and 
3. the injury will “likely […] be redressed by a favorable decision.”

Plaintiffs allege that defendants’ circumvention:

1. caused “lost per-view advertising revenue; 
2. caused “lost YouTube Premium revenue;”
3. “deprived” Plaintiffs of “view counts and watch hours that would otherwise have contributed to Partner Program qualification;” 
4. deprived “algorithmic amplification” because YouTube decides what videos to recommend based on “view counts, watch time, and engagement metrics;” 
5. harmed the “market for Plaintiffs’ and Class Members’ content” since Defendant would no longer “seek[] to purchase a copy of the audiovisual file” from Plaintiffs; and 
6. caused the “loss of control of [Plaintiffs’] works.”

Defendant contends Plaintiffs’ allegations do not “plausibly allege an injury traceable to the alleged circumvention of an access control” because the alleged injuries “stem from the alleged copying, training, and other downstream exploitation of the videos—not the act of circumvention itself.”

The court noted that when Defendant accessed Plaintiffs’ videos by circumventing YouTube’s TPMs, those retrievals generated no advertising impressions and no advertising revenue for Plaintiffs. Thus, Plaintiffs plausibly alleged their pocketbook injury was directly traceable to Defendant’s circumvention sufficient to support standing.

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