One of Cloudflare’s key aims is to be viewed as a neutral intermediary but that status is being chipped away by elements of the entertainment industries. The problem is that some of Cloudflare’s customers are pirate sites but as a service provider, Cloudflare insists that passing on complaints should be enough.
The music and movie industries, on the other hand, would like Cloudflare to either stop doing business with ‘bad players’ or take more responsibility for their actions.
Cloudflare Won’t Compromise So Legal Action Followed
Cloudflare is tied up in several lawsuits around the world, not for its own actions per se, but for the actions of some of its customers. In Germany there has just been a very interesting development, one that could have far-reaching consequences for how Cloudflare does business there.
Back in February, Germany-based visitors to pirate music site and Cloudflare customer DDL-Music.to were served with a rare ‘Error 451’ by Cloudflare, meaning that the site had been made inaccessible for legal reasons. At the time, no other information had been made public but as the days passed, a clearer picture emerged.
Complaint Filed By Universal Music GmbH
Early June 2019, Universal Music GmbH (Germany) sent a copyright infringement complaint to Cloudflare after finding links on DDL-Music to tracks by German singer Sarah Connor. The files themselves were not hosted by DDL-Music but could be found on a third-party hosting site. Universal asked Cloudflare make the tracks inaccessible within 24 hours but Cloudflare didn’t immediately comply.
In a subsequent response to Universal, Cloudflare denied being responsible for the activities of DDL-Music. It suggested that the label should confront DDL-Music directly, handing over an email address and details of the site’s hosting provider for contact purposes.
What happened in the interim isn’t clear but in December 2019 a hearing took place at the Cologne District Court, during which the court found that Cloudflare could be held liable for the copyright infringements of DDL-Music, if the CDN company failed to take action.
On January 30, 2020, the Cologne District Court went on to hand down a preliminary injunction against Cloudflare, advising that should it continue to facilitate access to the Universal content in question, it could be ordered to pay a fine of up to 250,000 euros ($270,000) or, in the alternative, the managing director of Cloudflare could serve up to six months in prison.
Preliminary Injunction Made Permanent
According to a statement issued late Thursday by German music industry group BVMI, the Cologne Higher Regional Court has now confirmed the judgment of the Cologne District Court. This means that Cloudflare must block access to the pirated music being offered on the website of DDL-Music. While Cloudflare will not be able to comply with that specific order (DDL-Music moved on a while ago) the principle stands. In Germany at least, Cloudflare can be held liable for the infringements of its users.
“Cloudflare offers a so-called CDN (Content Delivery Network), which is misused by structurally copyright-infringing websites in order to evade legal prosecution through anonymization. The Cologne Higher Regional Court has now put a stop to this: It has obliged Cloudflare to block customer content that has been reported to it by rights holders, or otherwise block the customer’s entire website,” BVMI’s statement reads.
Decision Welcomed By the Music Industry as a Tool to Fight Piracy
According to BVMI, the decision of the court is particularly noteworthy since it’s the first time that a higher regional court has confirmed an injunction against “an anonymization service” that conceals the identities of the servers operated by pirate sites. This decision will make that more difficult in future, the group says.
“The decision of the Cologne Higher Regional Court strengthens the position of rights holders in an important field and is a clear signal: A service that helps others to evade legal prosecution through anonymization is also illegal,” comments BVMI CEO, Dr. Florian Drücke.
“The decision is a further success for our industry against offers on the Internet that cause considerable damage to creatives and their partners and whose business models are based on generating considerable income with third-party content without acquiring licenses for this content.”
René Houareau, Managing Director of Law & Politics at the BVMI says the importance of the decision cannot be underestimated.
“Little by little we are getting closer to the modern understanding of the responsibility of all players on the Internet – especially through ambitious court decisions like this one,” Houareau says.
“An anonymization service may not allow third-parties to distribute illegal offers while disguising the identity of the servers of structurally infringing websites. In other words, excuses no longer apply in such cases. The services have to recognize more and more that some smoke screens no longer work.”
The developments in Germany arrive on the heels of a similar court ruling in Italy, which also went against Cloudflare. Following a complaint from TV platform Sky Italy and Italy’s top football league Serie A, Cloudflare is now required to block the domain names and IP-addresses of a pirate IPTV service. In that matter, Cloudflare argued that it merely passes on traffic, but the court wasn’t convinced.