Cloudflare Books Partial Victory in ‘Thothub’ Piracy Lawsuit

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Cloudflare has booked a partial victory in a piracy lawsuit filed by several models whose photos leaked online. The CDN provider previously offered its proxying service to the now-defunct website 'Thothub'. The court agreed with Cloudflare that there's no evidence for direct infringement, but the contributory copyright infringement claim remains intact.

cloudflareEarlier this year Texas-based model Deniece Waidhofer sued Thothub for copyright infringement after the site’s users posted many of her ‘exclusive’ photos.

While Cloudflare isn’t new to copyright infringement allegations, this case has proven to be more than a nuisance. The company previously countered the claims with a motion to dismiss but Waidhofer and her legal team didn’t back off.

In an amended complaint some of the most egregious allegations against Cloudflare, including the RICO conspiracy, were dropped. However, the copyright infringement claims remained and with two new cosplay models joining the action, the list of defendants expanded.

Cloudflare denied these new allegations and submitted a motion to dismiss the copyright infringement claims. In addition, the company filed a separate motion for sanctions, accusing the defendants of fabricating a fatally flawed ‘infringement’ theory.

Court Hands Down Mixed Order

This week, US District Court Judge Fernando M. Olguin reviewed Cloudflare’s motion and released a mixed order. Judge Olguin dismissed the direct copyright infringement claims against Cloudflare but denied the motion to dismiss the contributory copyright infringement allegations.

The three models argued that Cloudflare directly infringed their rights by making copies of the copyrighted works on its servers and deliberately marketing its service to pirate sites.

After reviewing the arguments from both sides, Judge Olguin concluded that the direct copyright infringement claim is ungrounded. Even if Cloudflare temporarily stored the infringing material, the models don’t allege any “volitional” conduct.

In a copyright infringement context, volitional conduct refers to a causal link. This means that Cloudflare’s actions should be the cause of infringing activity. That didn’t become apparent from the models’ complaints.

No Direct Infringement (for now)

This failure to include a causal link also applies to other direct copyright infringement allegations. This includes the suggestion that Cloudflare marketed its service to pirate sites. Again, this claim wasn’t backed up properly.

“In short, plaintiffs have failed to sufficiently allege that Cloudflare engaged in volitional conduct. The court will thus dismiss plaintiffs’ direct infringement claim with leave to amend,” the court rules.

This means that Cloudflare has defeated the direct copyright infringement claims, for now. The models are allowed, however, to file an amended complaint to fix the shortcomings that were highlighted by the court.

Contributory Infringement Remains

Cloudflare further asked the court to dismiss the contributory copyright infringement claims. According to the models, the CDN provider knew that infringing material was being made available using its system but failed to “take simple measures” to prevent further damage.

These allegations were heavily contested by Cloudflare but, for now, the court believes that the facts presented in the complaint are sufficient to move the case forward.

“Although Cloudflare challenges the veracity of the allegations in the [first amended complaint], on a motion to dismiss, the court must accept the factual allegations of the complaint as true,” the court concludes.

There were more setbacks for Cloudflare, as the court also denied its request to sanction the models and their legal team. The company accused the rightsholders of including unsubstantiated and false claims. However, the court believes that this type of request can be considered at a later stage.

Thothub Operators and Advertisers

The piracy claims are limited to Cloudflare. The advertising company MultiMedia, also known as Chaturbate, is also listed as a defendant. The court granted MultiMedia’s motions to dismiss the contributory copyright claims, also with the option to amend.

The RICO claims against the advertiser are dismissed with prejudice, but unfair competition claims remain intact.

Finally, the models failed to identify the “Does” behind the Thothub site, so all claims related to the site’s alleged operators have been dropped from the lawsuit.

A copy of Judge Olguin’s order on the motions to dismiss and the motion for sanctions is available here (pdf)

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