Catching Up on the Heavyweight Scraping Battle Between X and Bright Data (Guest Blog Post)
by guest blogger Kieran McCarthy
Last year, I wrote about how Elon Musk had inadvertently become web scrapers’ most powerful legal advocate. Not because he wanted to advocate for them. But rather, in seeking to enforce a no-scraping ban in X Corp.’s terms of use in a way that was targeted to stifle speech that was critical of him in X Corp. v. Center for Countering Digital Hate, he gave a face to the strongest policy arguments in favor of scrapers. Now, other scrapers get to apply those arguments in every commercial dispute as legal precedent.
Last year, he also engaged in a rather ham-fisted attack on Bright Data, the world’s largest web scraper. And he lost on a motion to dismiss against them, too.
But Musk, for all his flaws, is persistent. And he has unlimited resources to spend on legal fees, which makes for a dangerous combination. [FN] He hasn’t given up on either case. He’s appealing the CCDH case to the Ninth Circuit. And X Corp. also sought to amend its claims against Bright Data to add a host of new legal claims.
[FN from Eric: per the Isaacson biography, in a poker game, Musk went all-in on every poker hand until he eventually won].
On November 26th, X Corp. mostly prevailed in its motion to bring additional claims against Bright Data. On December 17th, Bright Data answered and added counterclaims against X Corp., including antitrust claims.
It’s rare in the web-scraping world when a party that seeks to stop scraping engages with a company with the resources to fight back and the appetite to do so. But that’s what’s happening here. X Corp. won’t relent. And for Bright Data, scraping is their business, and business has been good.
This makes me think that a lot of important precedent is going to come out of this case, and I think we’re just at the beginning.
November 26th Order on Motion for Leave to Amend Claims
The November 26th order was unusual in a lot of ways. For one, the decision of whether to allow a party to amend claims is a matter of judicial discretion. There isn’t a legal standard to satisfy to amend your claims. If the judge thinks it’s reasonable, the judge can allow it. But here, the judge invited the parties to engage in extensive letter-briefing on the motion to amend the claims. In so doing, the motion to amend claims became a mini-motion-to-dismiss by a different name. Which is why we ended up with a 21-page order on a motion to amend claims.
X corp. sought to amend its claims with revised trespass to chattels, Section 17200 of the California Business and Professions Code, tortious interference with a contract, and breach of contract claims. And it sought to supplement its complaint with DMCA, CFAA, and CDAFA claims.
Here’s how it went:
Trespass to Chattels
Trespass to chattels was the primary legal claim used to stop scrapers in the late 1990s and early 2000s. But after Hamidi in 2004, CFAA and breach of contract claims became the primary means that websites used to stop scraping.
It’s experiencing a revival again. X Corp. alleged that it purchased 10-20% more server capacity to deal with the traffic jumps caused by scrapers. The judge decided that this was an “actionable deprivation of use” of its servers, and allowed the TTC claims to proceed.
Section 17200
Section 17200 prohibits unlawful, unfair, and fraudulent business acts. Here, X Corp. convinced the judge that “deceptive” conduct is necessary to scrape at the scale done by Bright Data. X Corp. limits access by IP address, requires the user to agree to terms, and otherwise seeks to limit access to content to human users. According to the court, “scrapers take active steps that serve no purpose but to trick X into given them not a second, not a third, but a millionth turn to see the sites (citations omitted).”
X Corp’s motion to amend its 17200 claim to include fraudulent acts was granted. But its motion to amend its 17200 claim to add “unfair” acts was denied, as the court found that X Corp. was simply trying to eliminate competition.
Tortious Interference
The court previously dismissed X Corp.’s tortious interference claim because it had not plausibly alleged damages. Now, because the court accepted X Corp.’s arguments with respect to server impairment, it granted X Corp.’s motion to amend its tortious interference claim.
Breach of Contract
Here, again, the court bifurcated its analysis of the breach claim with respect to claims involving the access of data and claims involving scraping of data. Again, the court granted X Corp.’s motion to amend the complaint with respect to access-related claims on the basis that Bright Data’s accessing of X Corp.’s servers was impairing its servers. But the court denied X Corp.’s claims with respect to scraping of data on the basis that they were preempted by copyright.
Supplemental Claims
X Corp. also sought to add three new claims: DMCA, CFAA, and CDAFA claims. Bright Data did not oppose X Corp.’s motion to amend its claims but instead told the court of its intention to file a motion to dismiss on these claims. The court wrote:
If Bright Data believed these claims were dead on arrival, it should have said so at the first chance. Without prejudice to ruling in Bright Data’s favor on a later motion opposing these amended claims, the Court will not consider such a motion at this time. Bright Data should allow discovery to proceed and the case to develop. Then, if Bright Data still believes a motion appropriate as to any of these claims, Bright Data may move for summary judgment.
Dkt. 156 at 21.
I’m not a civil procedure expert, but I’ve never heard of a court saying that waiving the right to challenge leave to amend is also a waiver of the right to file a rule 12 motion. But that’s what happened here. That further underscores the bizarre procedural posture of this order. And that augurs a long and bumpy road ahead for both parties.
Counterclaims
On December 17th, 2024, Bright Data brought some claims of its own. Namely, claims for violation of Section 1 of the Sherman Act, Monopolization under Section 2 of the Sherman Act, Attempted Monopolization under Section 2 of the Sherman Act, violation of the California Cartwright Act, violation of the California Unfair Competition Act, violation of the Nevada Unfair Trade Practice Act, violation of the Texas Free Enterprise & Antitrust Act, and Tortious Interference with Prospective Customer Relationships.
The suit alleges that X perceives Bright Data to be one of its biggest competitors in the “Public Square Data” market and brought suit to restrict it from accessing public data.
Bright Data’s attorneys have done an excellent job litigating on its behalf recently, but this is a particularly bold move. Public square arguments directed at private companies rarely succeed. But it would always take creativity to suggest that Bright Data and Twitter are in the same relevant market. On the one hand, it’s obvious that Twitter’s conduct here is in part motivated by anti-competitive animus. On the other hand, it is not obvious how Twitter’s conduct fits into the historically successful antitrust buckets.
Here, Bright Data has alleged many antitrust theories, under many state and federal laws. Maybe one or two will stick.
Final Thoughts
As is always the case in web-scraping or data-access disputes, the party seeking access typically doesn’t just carry the burden of prevailing on some of the legal claims. To avoid injunctive relief, they usually carry the burden of prevailing on all their legal claims. And so while the legal theories used to block scrapers continue to evolve from trespass to chattels to the CFAA to breach of contract to the DMCA, the stakes remain the same. The party looking to stop scraping just needs one legal theory that lands with the judge, and they can likely obtain injunctive relief.
Though if a party seeking access to data were to ultimately prevail through trial on its antitrust claims, that narrative might change as well. Regardless, this case has all the elements of a heavyweight legal fight, and it will be a case to watch closely in 2025 (and probably beyond).