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New lawsuit could again test Cloudflare’s copyright liabilities

By | Published on Friday 23 November 2018


Internet services company Cloudflare is on the receiving end of another lawsuit accusing it of contributory copyright infringement, which could again test the liabilities of the net firm when it provides services to piracy websites.

The music industry, especially in the US, has been critical of Cloudflare in recent years for providing various services to websites that music rights owners accuse of infringing their copyrights. In one submission to a US government report on piracy, the Recording Industry Association Of America 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”.

For its part, Cloudflare has always insisted that it can’t be tasked with policing the internet, and that it can’t disconnect customers because of accusations of infringement from any one copyright owner. To that end the internet company’s position has generally been that it can only take action against an allegedly infringing customer when a court orders it to do so.

Cloudflare’s exact liabilities under US copyright law are of debate. Although the RIAA did have one legal run in with the company over it providing services to the now defunct piracy site MP3Skull, the main case that aimed to test those liabilities was launched by a porn company called ALS Scan. But that case was then settled out of court in June.

The new case testing Cloudflare’s liabilities also comes from outside the music industry and involves wedding dresses of all things. Wedding dress makers Mon Cheri Bridals and Maggie Sottero Designs are suing the net firm for contributory infringement because it allegedly provides services to websites based out of China that sell knock offs of the two companies’ bridal wear to customers back in the US.

Now, there is an added complication in this case, in that copyright doesn’t generally protect fashion design. There are a handful of exceptions to that general rule in the US, though quite what can and cannot be protected is debatable and complicated. Presumably aware of that fact, the two bridal companies note in some detail that these websites selling knock offs of their dresses have also nicked official promotional photos used by the plaintiffs on their own websites. Photos definitely are protected by copyright.

These photos, by the way, are damn important. “The photographic images of plaintiffs’ dress designs are the lifeblood of plaintiff’s advertising and marketing of their dress designs to the consuming public”, says the lawsuit. Hundreds of thousands are invested each year “in the development of sophisticated marketing campaigns which involve the engagement of models and photographers and the coordination of expensive photoshoots to capture the appropriate ‘look’ of the campaign for a particular line of dresses”.

But we’re not really interested in how wedding dress companies go about trying to protect their products under copyright law. The issue here is what liabilities, if any, Cloudflare have for providing services to these knock-off bridal wear websites.

“Cloudflare’s service allows counterfeit sites and their hosts to conceal their identity from copyright owners”, the lawsuit goes on. “When presented with a notice of infringement, Cloudflare asserts that it is itself unable or unwilling to remove any infringing content, that it is merely a ‘pass-through security service’ and not a hosting provider, and that the copyright owner must contact its customer to seek removal of the infringing content. In this fashion, Cloudflare shields pirate sites and their hosts from legal recourse by copyright owners”.

The plaintiffs add that it is more or less impossible to identify the location of the people actually operating the infringing websites – in no small part because of Cloudflare’s so called reverse proxy services – and, anyway, given it seems most are based in China, it would be tricky for the bridal companies to enforce their rights there.

The lawsuit then adds that the plaintiff’s agents have issued thousands of takedown notices under America’s Digital Millennium Copyright Act against Cloudflare and that these have not been responded to. “Cloudflare has ignored these notices and/or failed to take the appropriate action required by law in response to these notices”, the lawsuit claims, “[and instead it] has persisted in offering … services to pirate websites”.

There isn’t really anything in the new lawsuit that hasn’t been argued in past cases, and Cloudflare will almost certainly counter that it can’t remove specific content from its clients’ websites and that it won’t kick any one client off its platform entirely without a court injunction instructing it to do so.

Copyright owners at large still reckon that Cloudflare could and should do more to help hinder infringers. Especially when said infringers are based outside the rights owner’s home country, but are making content available or selling products in that country. If any of these cases involving Cloudflare ever get to court, we might get some judicial insight as to what the net firm’s liabilities actually are in this domain.