After Grooveshark shut down earlier this month it was quickly replaced by a “new” Grooveshark, much to the annoyance of the major record labels.
Headed by the RIAA, the operators of the new site were quickly taken to court.
The group filed a sealed application for a temporary restraining order (TRO) targeting the site’s domain name and hosting services.
The court granted the RIAA’s request earlier this month, allowing the music group to demand that hosting companies and registrars stop offering their services to the ‘rogue’ site.
Namecheap swiftly complied and seized the initial domain name. However, popular CDN service CloudFlare refused to take any action, claiming that the TRO doesn’t apply to them.
The new Grooveshark, meanwhile, moved to another domain and is still using CloudFlare’s services.
Hoping to compel CloudFlare to comply with the order, the RIAA asked the court to expand it by specifying that the CDN service has to take action. According to the RIAA, CloudFlare is “aiding and abetting” piracy.
However, in an opposition brief CloudFlare clearly disagrees. With help from the EFF, the company argues that even if it terminates its services, the ‘Grooveshark’ site would remain available.
“Even if CloudFlare—and every company in the world that provides similar services—took proactive steps to identify and block the Defendants, the website would remain up and running at its current domain name,” CloudFlare argues (pdf).
The request to include CloudFlare in the restraining order goes way too far, the company believes. If granted, this may lead to a snowball effect of orders against automated Internet services that are not actively assisting illegal activity.
“Given that CloudFlare clearly is not in ‘active concert or participation’ with Defendants, it appears Plaintiffs are effectively attempting to expand the traditional boundaries of Rule 65,” the lawyers write.
“That attempt, if accepted by this Court, could have implications well beyond this case. Other parties may seek the same remedy, using allegations of trademark or copyright infringement to obtain orders against the world.”
The RIAA is demanding SOPA-like powers with its request, CloudFlare argues. The company highlights that the SOPA bill was turned down after heavy criticism, but that the RIAA is now acting as if it’s become law.
“The [SOPA] bill was met with widespread public criticism from Internet users, technology companies, law professors, and software pioneers who helped create the Internet. Congress tabled the bill and did not advance it further,” CloudFlare notes.
“Here, Plaintiffs ask the Court to construe its injunction power as though H.R. 3261 had in fact become law. But lacking explicit statutory authority for such an order against a nonparty, the TRO cannot be construed to reach so far.”
CloudFlare therefore asks the court not to expand the restraining order. The company warns that any contrary ruling could set a dangerous precedent, putting many infrastructure providers and other services at risk.
For the RIAA and other copyright holders the case is an important test for future anti-piracy efforts against other pirate sites. The new Grooveshark is barely getting any visitors after the initial hype, but it has certainly triggered a crucial legal battle.
