Popular CDN and DDoS protection service Cloudflare has come under a lot of pressure from copyright holders in recent years.
The company offers its services to millions of sites, some of which offer access to copyright-infringing material.
Cloudflare prefers to remain a neutral service provider and doesn’t terminate clients based on DMCA notices. Instead, it forwards these to its customers, only taking action when it receives a court order.
Repeat Infringer Lawsuit
This stance is not appreciated by all rightsholders and in 2018 the service was taken to court over the issue. The case wasn’t filed by major entertainment companies, but by two manufacturers and wholesalers of wedding dresses. Not a typical “piracy” lawsuit, but it’s a copyright case that could have broad implications.
In a complaint filed at a federal court in California, Mon Cheri Bridals and Maggie Sottero Designs argued that even after multiple warnings, Cloudflare fails to terminate sites operated by counterfeit vendors. This makes Cloudflare liable for the associated copyright infringements, they said.
Cloudflare disagreed and both sides are now conducting discovery to collect evidence for an eventual trial. Among other things, the wedding dress manufacturers were asked to hand over detailed sales records. In addition, the CDN provider is also interested in the companies’ DMCA takedown partner XMLShop LLC.
Cloudflare Wants DMCA Takedown Evidence
Over the past few months, Cloudflare has tried to get further information on how XMLShop, which is also known as Counterfeit Technology, collects evidence for its takedown notices.
These takedowns play a central role in the lawsuit and XMLShop and its employees could provide crucial information. Thus far, however, Cloudflare hasn’t been able to get what it wants.
To resolve this issue, Cloudflare submitted a motion asking the court to compel the DMCA takedown company to comply with its requests for information. According to their filing, the company may be holding back important evidence.
“Plaintiffs and XMLShop, who use the same counsel, appear to be using XMLShop’s status strategically as a ‘non-party’ to conceal relevant documents from Cloudflare. The Court should reject their gamesmanship,” Cloudflare informed the court.
After serving two subpoenas, the takedown company only produced one document, Cloudflare notes. Meanwhile, the publicly available information on the company is highly confusing or even misleading.
Who Works at XMLShop?
For example, Cloudflare would like to question XMLShop’s employees, but the company hasn’t handed over an employee directory or payroll log that would reveal who works at the company.
“XMLShop has not been forthright about its operations, leaving Cloudflare in the dark as to who else may be a witness with relevant knowledge,” Cloudflare writes.
According to XMLShop’s attorney, the company only has one employee named Suren Ter-Saakov, but this claim is contradicted by its own website and Linkedin.
“XMLShop’s own public statements contradict its counsel’s statement. Its website boasts ‘a big team of professionals working in three offices, located in Ukraine, the United States, and Dominican Republic.
“And a LinkedIn profile for an individual named Blair Hearnsberger represents that she or he is the CEO at Counterfeit Technology,” Cloudflare adds.
According to the takedown company’s attorney, this profile is fake and Blair Hearnsberger does not actually exist, but Cloudflare is not convinced. Therefore, it hopes that the court will compel XMLShop to verify who works at the company and in what roles.
In addition to finding information on possible employees, Cloudflare also requests further information on the software that Counterfeit Technology used to find infringing content.
Special Takedown Bots?
The wedding dress manufacturers claimed that their takedown partner “scours the internet with special bots designed to locate and identify the unauthorized use” but it’s unclear how this technology works.
Cloudflare would like to assess the software to see how accurate it is, especially since the company states that it spends only 10 seconds sending notifications of claimed infringement to all traffic sources.
“Its use — and the reliability — of that technology is at least relevant to the predicate allegations of direct infringement it asserts. It is also relevant to Cloudflare’s contention that it never received any notifications of claimed infringement from Counterfeit Technology that were valid,” Cloudflare writes.
The CDN provider asked the court to compel XMLShop to produce the subpoenaed documents. In addition, XMLShop should be held in contempt for failing to obey the subpoena and ordered to pay the legal costs Cloudflare incurred to submit the motion.
This week, XMLShop responded to the request stating that it has already produced everything it could. It views the remaining requests as incredibly broad, since these ask for “sensitive” trade secret information. It is now up to the court to make a final decision.
A copy of Cloudflare’s memorandum in support of its motion to compel XLMshop to comply with the subpoena is available here (pdf).. XMLShop’s response can be found here (pdf).