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Cloudflare fails to have copyright case dismissed on jurisdiction grounds

By | Published on Tuesday 13 June 2017


Internet company Cloudflare, a provider of so called reverse proxy services among other things, has failed to have a copyright infringement case against it dismissed, despite its argument that most of the websites named in the litigation are based outside the US.

Cloudflare has increasingly appeared on the gripe list of copyright owners of late. In its submission to the US government’s annual report on copyright matters worldwide, the Recording Industry Association Of America last year stated that: “[Piracy] sites are increasingly turning to Cloudflare, because routing their site through Cloudflare obfuscates the IP address of the actual hosting provider, masking the location of the site”.

The major label trade group then added that: “The use of Cloudflare’s services can also act to frustrate site-blocking orders because multiple non-infringing sites may share a Cloudflare IP address with the infringing site”.

The vast majority of the companies using Cloudflare’s various services are legitimate of course, and are seeking to reduce the strain on their own servers and protect their online operations, rather than mask their identity.

Though copyright owners don’t like the fact that Cloudflare also has piracy platforms amongst its client base. Cloudflare, like most internet companies, insists it’s not there to police the internet and can’t go around disconnecting customers on the basis of complaints from content companies.

In terms of what the internet firm’s actual liabilities are under copyright law, well, that’s debatable and is now being tested in the US via a lawsuit launched by porn company ALS Scan.

That litigation was launched last year, and Cloudflare did manage to have some aspects of the legal action dismissed early on. However, the internet company is still defending itself against allegations of ‘contributory infringement’ for assisting piracy sites in the distribution of unlicensed content.

The firm’s most recent move was to argue that fourteen of the fifteen sites specifically mentioned in ALS Scan’s lawsuit – all of which have used Cloudflare’s services – were based outside the US. That means that the direct infringement from which Cloudflare’s alleged contributory infringement stems happening outside America, it argued, and therefore outside the jurisdiction of the US courts.

However, the court hearing the case did not agree. In a ruling made earlier this month, and now published by Torrentfreak, judges said that because Cloudflare had cached copies of those foreign sites on its servers in the US, that was sufficient to deem that the direct infringement had occurred within America.

Or in the words of the judgment: “It is undisputed that cache copies of Cloudflare clients’ files are stored on Cloudflare’s data servers; it is also undisputed that some of those data servers are located in the United States. Thus, to the extent cache copies of plaintiff’s images have been stored on Cloudflare’s US servers, the creation of those copies would be an act of direct infringement by a given host website within the United States”.

Judges also said that simply caching copyright infringing content could result in liability for that infringement, and that the kind of caching employed by Cloudflare was not covered by fair use. All of which means, in relation to fourteen of the fifteen sites listed in ALS Scan’s legal action, the matter will now proceed to court.

When that happens, all copyright owners will be watching closely to see whether any other technicalities can be used to reduce Cloudflare’s copyright liabilities. If not, other lawsuits are sure to follow.