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Cloudflare Is Liable For Pirate Sites and Has No Safe Harbor, Publisher Says (torrentfreak.com)

Posted by BeauHD on from the he-said-she-said dept.

After dragging Cloudflare to court and accusing the web services company of various types of copyright and trademark infringement, noting that several customers used Cloudflare's servers to distribute pirated content, adult publisher ALS Scan told the California District Court this week that the company should be held liable for copyright infringements committed by its customers. According to TorrentFreak, "The company requests a partial summary judgement, claiming that the CDN provider assists pirates and doesn't qualify for safe harbor protection." From the report: "The evidence is undisputed," ALS writes. "Cloudflare materially assists website operators in reproduction, distribution and display of copyrighted works, including infringing copies of ALS works. Cloudflare also masks information about pirate sites and their hosts." ALS anticipates that Cloudflare may argue that the company or its clients are protected by the DMCA's safe harbor provision, but contests this claim. The publisher notes that none of the customers registered the required paperwork at the U.S. Copyright Office. "Cloudflare may say that the Cloudflare Customer Sites are themselves service providers entitled to DMCA protections, however, none have qualified for safe harbors by submitting the required notices to the U.S. Copyright Office. Cloudflare may say that the Cloudflare Customer Sites are themselves service providers entitled to DMCA protections, however, none have qualified for safe harbors by submitting the required notices to the U.S. Copyright Office."

Cloudflare itself has no safe harbor protection either, they argue, because it operates differently than a service provider as defined in the DMCA. It's a "smart system" which also modifies content, instead of a "dumb pipe," they claim. In addition, the CDN provider is accused of failing to implement a reasonable policy that will terminate repeat offenders. "Cloudflare has no available safe harbors. Even if any safe harbors apply, Cloudflare has lost such safe harbors for failure to adopt and reasonably implement a policy including termination of repeat infringers," ALS writes. ALS now asks the court to issue a partial summary judgment ruling that Cloudflare is liable for contributory copyright infringement. If this motion is granted, a trial would only be needed to establish the damages amount.

5 of 172 comments (clear)

  1. Go after ... by CaptainDork · · Score: 5, Interesting

    ... the offender.

    The reasoning here would support my electric company's termination of service because I download copyrighted material.

    --
    It little behooves the best of us to comment on the rest of us.
    1. Re:Go after ... by Xenx · · Score: 3, Interesting

      Your analogy is entirely flawed. Your electric company is incapable of seeing what you do with your internet connection. There is no interpretation of the DMCA that could be used to implicate them.

      I don't support this move, but there is basis for it. First would be, whether to provide safe harbor to Cloudflare as a provider. I would argue to do so. The second would be the fact that the DMCA does require you to have policies in place to deal with repeat offenders. I work for an ISP and have spent a fair bit studying it when I was the one responsible for processing infringement notices. I am by no means an expert. My understanding is that it emphasizes having a policy in place, but not how you handle them. The key is that they have one, and stick to it. Finally, in regards to them being a smart system instead of a dumb pipe... I don't know enough. If Cloudflare is actively monitoring the content of the traffic, it potentially leaves them open as they now knowingly permitted the traffic.

    2. Re:Go after ... by Anonymous Coward · · Score: 2, Interesting

      It looks like they do have a process for dealing with offenders: https://support.cloudflare.com/hc/en-us/articles/200167716-How-do-I-file-a-DMCA-complaint-

  2. Re: "Publisher Says" ... nuff said by Anonymous Coward · · Score: 0, Interesting

    I'll start. FISA warrants do not require disclosure of information being the product of paid third-party work, yet this memo claims the lack of that information is inappropriate to this investigation suspect. A guy who was being watched since 2013 by the FBI, which is probably another foundational piece of the warrant application that we can't read because it's a classified freaking FISA warrant. That's what's wrong with it - there's no transparency here because there's factual omissions we aren't even legally entitled to know about. Which means it's highly biased with an agenda, which some have said is called fake news.

  3. Re:Interesting implication by Luthair · · Score: 4, Interesting

    From the article:

    Previously, the court clarified that under U.S. law the company can be held liable for caching content of copyright infringing websites. Cloudflare’s “infrastructure-level caching” cannot be seen as fair use, it ruled.

    Seems pretty insane, this would suggest that ISP edge caching of unencrypted content is infringing, ditto for image search engines.