Cloudflare is not responsible for the copyright infringement of websites that use its content delivery and security services, a federal judge ruled yesterday.
Cloudflare was continued in November 2018 by Mon Cheri Bridals and Maggie Sottero Designs, two manufacturers and sellers of wedding dresses who alleged that Cloudflare was guilty of contribution copyright infringement because it did not terminate the services of websites that infringed the designs protected by the copyright of the seamstresses. The companies have requested a jury trial, but Judge Vince Chhabria yesterday allowed Cloudflare’s motion for summary judgment in a decision in the United States District Court for the Northern District of California.
Chhabria noted that the seamstresses have been harmed “by the proliferation of counterfeit retailers who sell counterfeit dresses using the copyrighted images of plaintiffs” and that they have “sued counterfeiters in a series of actions, but to no avail – every time a website is successfully closed, a new one takes its place. “Shabria continued:
In an effort to eradicate counterfeits more effectively, complainants now turn to a service common to many offenders: Cloudflare. The plaintiffs claim that Cloudflare contributes to the underlying copyright infringement by providing the infringers with caching, content delivery and security services. Because a reasonable jury could not – at least in this case – find that Cloudflare materially contributes to the underlying copyright infringement, the plaintiffs’ motion for summary judgment is dismissed and the motion for summary judgment of Cloudflare is granted.
As the ruling resolves the central issue of the trial in Cloudflare’s favor, the judge has scheduled a case management conference on October 27 “to discuss what remains of the case.”
Hundreds of counterfeit websites
The companies’ lawsuit said they “are two of the largest manufacturers and wholesalers of wedding dresses and social occasion wear in the United States” and “have developed several of the most popular wedding and social occasion dress designs. most unique and original in the world “. They own the copyright for these designs and for the photographic images of the designs.
Most of the websites selling counterfeit versions of the dresses operate from China, according to the lawsuit. In addition to Cloudflare, a amended complaint listed 500 “Doe” defendants whose real names were unknown. The lawsuit said Cloudflare’s terms state that any violation of the law warrants termination of the service and that “it is CloudFlare’s policy to investigate violations of these terms of service and to put an end to repeated violators.”
The plaintiffs said they used a provider called Counterfeit Technology to find more than 365 fake websites that are Cloudflare users, including cabridals.com, bidbel.com, stydress.com, angelemall.co.nz, jollyfeel.com, russjoan .com, missydress .com.au and livedressy.com. Complainants said they sent Cloudflare thousands of takedown notices, and often as many as four notices for the same infringing sites, but “Cloudflare ignored these notices and took no action after being notified of the infringing content. on its clients’ websites.
âSpecifically, even after becoming aware of specific and identified acts of copyright infringement by offending websites through complainants’ takedown notices, Cloudflare continues to cache, mirror and store a copy of the counterfeit websites and counterfeit content on its data center servers, and transmit copies of the counterfeit content to visitors to the counterfeit websites on demand, âthe amended complaint states. “Cloudflare’s contributions allow Internet browsers of visitors to counterfeit websites to access and load counterfeit websites and content much faster than if the user were forced to access the counterfeit websites and content from from the primary host in the absence of Cloudflare services. “
The complainants argued that Cloudflare should have terminated caching services for these websites, blocked traffic passing through Cloudflare’s network to the websites “and reconfigured[ed] its firewall settings so that users trying to access the offending domain are redirected to a blank page. “
Cloudflare: “Lawsuit Based on Fundamental Misunderstanding”
Cloudflare argued that the plaintiffs “brought this lawsuit on the basis of a fundamental misunderstanding of Cloudflare’s services, the doctrine of contributory copyright infringement and the Digital Millennium Copyright Act, all in an attempt to obtain statutory damages which have nothing to do with the harm they claim to have suffered. ” A victory for the plaintiffs would amount to “an expansion of the counterfeiting doctrine by providing means well beyond its established limits,” Cloudflare told the court.
Cloudflare has nothing to do with search engines and peer-to-peer networks that the [US Court of Appeals for the] The Ninth Circuit found it “dramatically amplifies otherwise unimportant infractions.” While Cloudflare’s services protect against malicious attacks and at most give a fraction of a second advantage to the load time of a website someone is already visiting, the services previously considered by the Ninth Circuit have in fact. actually helped visitors find counterfeit material that they would never have found otherwise. There is also no “simple step” that Cloudflare has not taken to prevent further breaches in this matter. Unlike hosting providers, Cloudflare could not remove the allegedly infringing material from the Internet, and there is no doubt that these images would have remained available and also accessible on the accused websites without Cloudflare’s services.
Cloudflare offers a mix of free and paid services.
Judge explains why Cloudflare is not responsible
A defendant is liable for contributory copyright infringement if he is aware of the infringement of others and materially contributes to or induces that infringement, the judge noted in his ruling against the seamstresses. “Merely providing services to a copyright infringer is not considered a ‘material contribution’,” he wrote. “On the contrary, liability in the Internet context arises when a party ‘facilitates[s] access “to offending websites in such a way that” significantly magnif[ies]’the underlying offense. “
While a defendant may be considered to be materially contributing to copyright infringement if they act as “an essential step in the infringement process,” this should not be interpreted too broadly, the judge wrote.
As the Ninth Circuit acknowledged, the language used in these tests is ‘broad enough’ and could encompass a lot of harmless activity if taken out of context. An analysis of copyright infringement by contribution must therefore be aware of the facts in the key cases in which accountability has been found, âChhabria wrote.
Mon Cheri Bridals and Maggie Sottero Designs alleged that Cloudflare was contributing to copyright infringement by providing performance enhancing services, including its content delivery network and caching capabilities that improve the quality of web pages and make them load faster, wrote Chhabria. But the “plaintiffs have not presented any evidence from which a jury could conclude that Cloudflare’s performance improvement services are materially contributing to copyright infringement. The plaintiffs’ only evidence of the effects of these services is Cloudflare’s website promotional material touting the benefits of its services. These general statements do not address Cloudflare’s effects on the direct infringement at issue here. “
The plaintiffs have not proven that the faster website load times enabled by Cloudflare “would be likely to lead to many more violations.” Additionally, Cloudflare removing infringing material from its cache would not prevent users from viewing copyrighted images. “[R]removing content from a cache without removing it from the hosting server would not prevent the direct violation from occurring, âwrote Chhabria.
Security Services ‘Make No Difference’ For Users
Plaintiffs have also attempted to prove contribution infringement by pointing to Cloudflare security services that detect suspicious traffic and prevent attacks against a website host. The judge rejected this argument, writing:
Cloudflare’s security services also do not significantly contribute to the breach. From the perspective of a user accessing the infringing websites, these services make no difference. Cloudflare’s security services impact the ability of third parties to identify a website’s hosting provider and the IP address of the server on which it resides. If the provision of these services by Cloudflare made it more difficult for a third party to report breach incidents to the web host as part of an effort to remove the underlying content, they may be required to responsible for an infringement by contribution. But here the parties agree that Cloudflare will notify complainants of the identity of the host in response to receiving a copyright complaint, in addition to forwarding the complaint to the hosting provider.
The plaintiffs had also sought summary judgment against the defendants Doe “but dropped that motion in their reply brief,” the judge wrote.