Cloudflare is Liable For Pirate Sites & Has No Safe Harbor, Publisher Says

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, including the likes of The Pirate Bay, which rely on the U.S.-based company to keep server loads down.

Many rightsholders have complained about Cloudflare’s involvement with these sites and last year adult entertainment publisher ALS Scan took it a step further by dragging the company to court.

ALS accused the CDN service of various types of copyright and trademark infringement, noting that several customers used the Cloudflare’s servers to distribute pirated content. While Cloudflare managed to have several counts dismissed, the accusation of contributory copyright infringement remains.

An upcoming trial could determine whether Cloudflare is liable or not, but ALS believes that this isn’t needed. This week, the publisher filed a request for partial summary judgment, asking the court to rule over the matter in advance of a trial.

“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 US 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 US 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.

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.

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.

The lawsuit is a crucial matter for Cloudflare, and not only because of the potential damages it faces in this case. If Cloudflare loses, other rightsholders are likely to make similar demands, forcing the company to actively police potential pirate sites.

Cloudflare will undoubtedly counter ALS’ claims in a future filing, so this case is far from over.

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A copy of ALS Scan’s memorandum in support of the motion for partial summary judgment can be found here (pdf).

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