As one of the leading CDN and DDoS protection services, Cloudflare is used by millions of websites across the globe.
This includes thousands of “pirate” sites which rely on the U.S.-based company to keep server loads down.
While Cloudflare is a neutral service provider, rightsholders are not happy with its role. The company has been involved in several legal disputes already, including the RIAA’s lawsuit against MP3Skull.
Last year the record labels won their case against the MP3 download portal but the site ignored the court order and continued to operate. This prompted the RIAA to go after third-party services including Cloudflare, to target associated domain names.
The RIAA demanded domain blockades, arguing that Cloudflare actively cooperated with the pirates. The CDN provider objected and argued that the DMCA shielded the company from the broad blocking requirements. In turn, the court ruled that the DMCA doesn’t apply in this case, opening the door to widespread anti-piracy filtering.
While it’s still to be determined whether Cloudflare is indeed “in active concert or participation” with MP3Skull, the company recently asked the court to vacate the order, arguing that the case is moot.
MP3Skull no longer has an active website, and previous domain names either never used Cloudflare or stopped using it long before the order was issued, the company argued.
The RIAA clearly disagrees. According to the music industry group, Cloudflare’s request relies on “misstatements.” The motion wasn’t moot when the court issued it in March, and it isn’t moot today, they argue.
Some MP3Skull domains were still actively using Cloudflare as recently as April, but Cloudflare failed to mention these.
“CloudFlare’s arguments to the contrary rely largely on misdirection, pointing to the status of domain names that expressly were not at issue in Plaintiffs’ motion,” the RIAA writes.
Even if all the domain names are no longer active on Cloudflare, the order should remain in place, the RIAA argues. The group points out that nothing is preventing the MP3Skull owners from relaunching the site and moving back to Cloudflare in the future.
“By its own admission, CloudFlare took no steps to prevent Defendants from using its services at any time. Given Defendants’ established practice of moving from domain to domain and from service to service throughout this case in contempt of this Court’s orders, Defendants could easily have resumed — and may tomorrow resume — their use of CloudFlare’s services.”
In addition, the RIAA stressed that the present ruling doesn’t harm Cloudflare at all. Since there are no active MP3Skull domains using the service presently, it need take no action.
“The March 23 Order does not require CloudFlare to do anything. All that Order did was to clarify that Rule 65, and not Section 512(j) of the DMCA, applied,” the RIAA stresses.
While it seems pointless to spend hours of legal counsel on a site that is no longer active, it shows the importance of the court’s ruling and the wider site blocking implications it has.
The RIAA wants to keep the door open for similar requests in the future, and Cloudflare wants to avoid any liability for pirate sites. These looming legal consequences are the main reason why the CDN provider asked the court to vacate the order, the RIAA notes.
“It is evident that the only reason why CloudFlare wants the Court to vacate its March 23 Order is that it does not like the Court’s ruling on the purely legal issue of Rule 65(d)’s scope,” the RIAA writes.
It is now up to the court to decide how to move forward. A decision on Cloudflare’s request is expected to be issued during the weeks to come.
The RIAA’s full reply is available here (pdf).