Popular CDN and Internet security service Cloudflare has come under a lot of pressure from copyright holders in recent years.
The company offers its services to millions of sites. This includes multinationals, governments, but also some of the world’s leading pirate sites.
Many rightsholders are not happy with the latter category. They repeatedly accuse Cloudflare of facilitating copyright infringement by continuing to provide access to these platforms. At the same time, they call out the CDN service for masking the true hosting locations of these ‘bad actors’.
Cloudflare sees things differently. The company positions itself as a neutral service provider that doesn’t ‘host’ any infringing content and says it passes on information temporarily cached on its services.
This means that if copyright holders report problematic URLs to Cloudflare, the company forwards the DMCA takedown notices to its customer. By doing so, Cloudflare is convinced that it operates in accordance with the law.
Repeat Infringer Lawsuit
That 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, despite multiple warnings, Cloudflare failed to terminate sites operated by counterfeit vendors. This makes Cloudflare liable for the associated copyright infringements, they said.
Cloudflare disagreed and filed a motion to dismiss. The company said that the rightsholders failed to state a proper claim, as the takedown notices were not proof of infringement, among other things. The California Federal Court disagreed, however, and allowed the case to move forward.
Rightsholders Request Summary Judgment
This ruling was good news for Mon Cheri Bridals and Maggie Sottero, which have now filed a motion for summary judgment. The companies argue that Cloudflare is liable for both direct and contributory copyright infringement, hoping to establish this as fact before trial.
The wedding dress manufacturers explain that they sent Cloudflare numerous takedown notices. These notices identified allegedly infringing images that were hosted by Cloudflare’s subscribers and requested the company to take action to prevent further infringements.
In response, Cloudflare forwarded these notices to its clients and their hosting providers, as is common policy. However, according to the rightsholders, this is not enough.
“Cloudflare did not investigate the alleged infringement, did not request any information from its customers, did not remind its customers of Cloudflare’s infringement policy or threaten any type of disciplinary action […] and did not do anything to evaluate whether its customer was indeed engaged in infringing activities.
“It did not matter whether Cloudflare received 1, 101, 10,000, or 1,000,000 infringement notices concerning a domain client – its response and handling of the complaints was always the same,” the dress manufacturers add.
Cloudflare believes that it’s following the law. In the past, the company stressed that it doesn’t store any infringing material on its servers, so forwarding the notices is sufficient.
“Cloudflare Can and Should Take Action”
The wedding dress manufacturers clearly disagree and claim that the CDN provider could and should have taken simple steps to prevent infringements
“[A]fter receiving numerous notices of infringement implicating a website client, Cloudflare could have taken simple measures to prevent further infringement, including evicting the infringing content from its cache servers and terminating caching services until the website proves compliance with Cloudflare’s anti infringement policies,” the companies write.
“And while Cloudflare may not have control over the infringing content on a website’s origin host servers, it can and should do its part to curb infringement by not permitting repeat infringers to use its services to more effectively and quickly distribute infringing material to consumers in the United States.”
With the motion for summary judgment, the copyright holders ask the court to rule that, because it failed to act, Cloudflare indeed is liable for the repeat infringements of its customers. If that is the case, the only remaining issue will be the scale of the damages claim.
Potential for Broad Implications
Cloudflare will likely disagree with these allegations but, at the time of writing, it has yet to respond in court. Previously, Cloudflare scrutinized the practices of the wedding dress manufacturers’ DMCA takedown partner, while describing the notices as invalid.
This isn’t the first time that the repeat infringer issue has come up in US courts. Several movie companies successfully sued ISPs that failed to take action against repeat infringers. These ISPs didn’t host any copyrighted material either.
While the present case doesn’t directly involve any pirate sites, it could have potentially far-reaching consequences. If the court rules that Cloudflare’s current policy is insufficient, it could be required to take stricter action against other sites as well.
A copy of the motion for summary judgment, submitted at a California Court by Mon Cheri Bridals and Maggie Sottero Designs, is available here (pdf)