GoKawiilJudge Rejects Google’s Attempt To DMCA Its Way Out Of Being Scraped
from the pulling-up-the-ladder dept
Back in December we called out Google for filing a DMCA 1201 lawsuit over companies scraping Google’s results. Almost everything about the lawsuit seemed problematic, not the least of which is that Google’s entire business was built on scraping the web. To sue another company for scraping Google just felt… obnoxious. And now a judge has dismissed the lawsuit, though leaving it open for Google to refile.
Some background: now that we’re in the age of AI, access to all kinds of data has become more precious, which means we’re seeing more and more attempts to put a toll booth on parts of the open web, primarily aimed at AI companies. But the rest of us get locked out along the way. SerpAPI is one of the players in the space which (as its name implies) basically tries to create an unauthorized API for search engine result pages.
Last fall, Reddit sued SerpAPI and some others (including search AI company Perplexity), claiming that because SerpAPI was allowing others (like Perplexity) to access Reddit content via its scrape of Google, it was violating the DMCA’s anti-circumvention (DMCA 1201) clause. We found the whole thing to be an attack on the principles of the open web. It really seemed weird. Reddit had no copyright interest in its users’ posts (the users hold the copyright) and SerpAPI was scraping Google, not Reddit. Reddit has an API deal with Google, but none of the parties being sued were parties to that deal. The whole thing was just “we don’t like that this is happening, so we’re suing.”
Google’s case came a few months later and was quite similar, focused on SerpAPI. And while at least in this case (unlike Reddit) they could point out that SerpAPI was scraping their own site, it still makes no sense to claim that scraping an open website can be a 1201 anti-circumvention violation, no matter what “technological protection measures” you throw up to try to block scraping. The Reddit case continues to move forward with the defendants filing motions to dismiss, but the Google case has lapped them a bit, with the judge already dismissing the complaint, and pointing out (correctly!) that Google has no legitimate copyright claim to make here.
While SerpAPI tried a variety of different ways to kill the lawsuit, what seemed to stick is that Google was clearly stretching the way the DMCA 1201 is supposed to work. Remember, 1201 is the “anti-circumvention” part of the DMCA, and was initially written to protect DRM so that if people broke DRM (or even talked about how to break DRM) they could still be held liable for copyright infringement just for the act of circumventing the “technological protection measure.” This very broad and poorly worded law has created huge messes in its wake, including blatant abuses like companies arguing that you can’t use third-party printer ink or third-party garage door openers because of flimsy “technological protection measures” put into those devices, even though the underlying circumvention had nothing to do with copyright.
The court also looks at one of those earlier cases (regarding Lexmark’s printers), but concludes it doesn’t apply here — long story, not worth the detail, except to note that the precedent that mattered against Lexmark came from trademark law, not the DMCA, even though Lexmark had also tried (and failed) to use Section 1201 itself.
However, SerpAPI (rightly) also pointed out that Google is overclaiming what “SearchGuard” — the “technological protection measure” — actually protects here. As the court explains it, SearchGuard is basically a kind of CAPTCHA:
SearchGuard works by sending a JavaScript “challenge” to search queries that Google receives from unrecognized sources to confirm that they come from real users as opposed to automated software. Id. ¶ 29. Google’s computer system transmits JavaScript code that calls upon the user’s browser to send Google a “solve” for the challenge, i.e., to send Google specific information regarding the browser and user generating the request. Id. ¶ 29. For human users, the “solve” is relatively straightforward; their browsers run the JavaScript code and send back the required information seamlessly, without disrupting the user experience. Id. ¶ 29. However, automated systems that submit automated queries at a massive scale typically cannot solve the SearchGuard challenge. Id. As a result, SearchGuard denies them access to Google’s Search results.
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