Cloudflare Doesn’t Want Daily Stormer Evidence at Piracy Trial

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Cloudflare doesn't want its termination of neo-Nazi site Daily Stormer to be used as evidence at the upcoming piracy liability trial against ALS Scan. The copyright holder used the issue to argue that Cloudflare can remove content from the internet, but the CDN provider fears that mentioning the site at trial may lead to "guilt by association.”

Last summer Cloudflare CEO Matthew Prince decided to terminate the account of controversial neo-Nazi site Daily Stormer.

“I woke up this morning in a bad mood and decided to kick them off the Internet,” he announced.

It was later explained that the move was meant as an ‘intellectual exercise’ to start a conversation regarding censorship and free speech on the internet. In this respect, it was a success, but the discussion went much further than Prince had intended.

Cloudflare always had a policy not to remove any accounts without a court order, so when this was exceeded, eyebrows were raised. In particular, copyright holders wondered why the company could terminate this account but not those of the most notorious pirate sites.

The Daily Stormer removal also became an issue in the piracy liability case adult entertainment publisher ALS Scan had filed previously. After Cloudflare’s CEO was questioned on the matter, it could now be brought up before a jury during the trial as well.

This is something Cloudflare would like to avoid, it appears. A few days ago the company asked the court to exclude any hate group related evidence or arguments from the trial.

“Cloudflare respectfully asks this Court to exclude any evidence or arguments that ALS intends to offer relating to Cloudflare’s services, including termination or non-termination of services, to hate groups,” the company writes.

“This includes but is not limited to services that Cloudflare historically provided to the Daily Stormer website, and Cloudflare’s decision to terminate services to that website following the tragic events that took place in Charlottesville, Virginia in August 2017.”

No hate groups

ALS previously harped on the fact that the CEO arbitrarily decided to remove one site from the service, while requiring court orders in other instances.

The adult publisher could use the information to argue that Cloudflare can take action against certain websites and that this has a significant impact on their operation.

Cloudflare disagrees. It doesn’t deny that it can terminate accounts but maintains that it can’t “remove” them from the Internet as they are merely hosting a cached version. According to the company, ALS wants to use the issue to cloud the jury’s opinion.

“The apparent reason that ALS seeks to offer is not for its probative value but rather for its distracting emotional impact,” Cloudflare argues.

“Given the strong feelings such evidence would almost certainly arouse among members of the jury, this evidence creates an unwarranted and impermissible risk of unfair prejudice to Cloudflare.”

The CDN provider adds that the Daily Stormer removal had nothing to do with copyright and is therefore irrelevant. The main reason the company decided to terminate the Daily Stormer account was that the site suggested that Cloudflare supported its views.

To prevent any guilt by association or distracting emotional impact, the CDN provider urges the court to prohibit the issue from being raised at trial.

“Cloudflare respectfully requests that the Court grant this motion and enter an order barring ALS from presenting to the jury any evidence regarding Cloudflare’s provision or non-provision of Internet services to “hate” websites such as the Daily Stormer,” the company writes.

Cloudflare’s motion to exclude evidence relating to provision or termination of services to hate groups can be found here (pdf).

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