9th Circ. Court Decides Cloudfare Not Responsible for Copyright Infringement


The Northern District of California has dismissed claims that website optimization provider Cloudflare Inc. was responsible for copyright infringement related to the distribution of infringing photographs by its customers.

Plaintiff Mon Cheri Bridals, LLC designs and manufactures wedding dresses and second-hand clothing for women. The photoshoots she hosts each season to showcase her new designs are essential to Mon Cheri’s marketing. The photos of Mon Cheri are published on its website and made available to its authorized resellers. Over the past few years, however, many pirate websites have stolen Mon Cheri’s images and used them on unaffiliated e-commerce sites to sell counterfeit dresses.

Defendant Cloudflare provides website optimization services, which both protect against attacks and make its customers’ websites more efficient by reducing the distance data has to travel. More importantly, its content delivery network (“CDN”) and reverse proxy services act as a security buffer and performance booster. Cloudflare substitutes its own numeric IP address for the IP address of the underlying web host and scans for potential threats as requested. If none are found, then the domain resolves to the requested hosting company IP address. Basically, although Cloudflare “caches” (that is, temporarily stores) things like website images that users request frequently, it does not host its customers’ websites. . But because its services hide the identity of the website host, those looking to prevent online copyright infringement by attempting to deactivate the hosting service must first go through Cloudflare.

Mon Cheri claimed to have identified more than 400 Cloudflare customer websites that were using his images without permission and had submitted thousands of breach notices to Cloudflare. Although Cloudflare forwarded these notices to the hosts of the underlying website and revealed the identity of the hosts to Mon Cheri, Cloudflare has not terminated its services to most of these customers. Mon Cheri sued Cloudflare, alleging contributory copyright infringement.

A party can engage its responsibility when it: “(1) is aware of the infringement of another and (2) (a) contributes materially or (b) induces this infringement. Mon Cheri alleged that Cloudflare’s performance enhancement services (including its CDN and caching capabilities) improved the quality of counterfeiters’ web pages, speeding up the delivery of counterfeit content. In addition, its security services inserted Cloudflare between the requesting user and the host of the infringing content, preventing Mon Cheri from enforcing its copyright. Both parties have requested summary judgment. By dismissing Mon Cheri’s petition and granting Cloudflare’s, the court ruled that Mon Cheri had not presented sufficient evidence to show that Cloudflare’s services materially contributed to the underlying copyright infringement. .

According to the court, Mon Cheri did not provide any evidence that Cloudflare’s performance-enhancing services (especially faster load times) would result in significantly more breaches than without Cloudflare. Importantly, if Cloudflare removed the infringing material from its cache, the copyrighted images would still be visible to the user. Unless the images were removed from the actual hosting service, direct infringement would not be prevented. Thus, the court held that no reasonable jury could conclude that Cloudflare’s activities materially contributed to the underlying infringement because its services neither “significantly magnif[ied]”, nor was it an” essential step in the infringement procedure “.

Likewise, Cloudflare’s security services did not materially contribute to the underlying breach as it had no effect on a user attempting to access the infringing images.

The case is Mon Cheri Bridals, LLC v Cloudflare, Inc., n ° 3: 19-cv-01356-VC (ND Cal. October 6, 2021).

© 2021 Finnegan, Henderson, Farabow, Garrett & Dunner, LLPRevue nationale de droit, volume XI, number 285

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