Two Years Later, Judge Finally Realizes CDN Provider Not Responsible For Website Copyright Infringements

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of this-why-procedural-outs are-important department

Over two years ago, we wrote about a really bizarre decision in a really bizarre copyright lawsuit against Cloudflare. As you (maybe?) Know, Cloudflare is a popular CDN provider, helping websites (including Techdirt) provide better access to users while helping mitigate things like denial of service attacks. . In this case, the plaintiffs, Mon Cheri Bridals – a manufacturer of wedding dresses – sued Cloudflare because websites were selling counterfeit dresses. If you know anything about copyright (and infringement), you should scratch your head. Counterfeiting is not a copyright issue. This is a registered trademark. But the dress company (for reasons I still don’t understand), made the biggest argument to say that (1) the counterfeit sellers were posting images of the dresses, and (2) those images were copyrighted. copyright held by the seamstress, and (3) because the infringing sites displaying the photos allegedly infringing the copyright used Cloudflare for CDN (do not host), which somehow makes them liable for copyright infringement.

Worse yet, the complaint itself was extremely confusing about the DMCA and how it works in regards to DMCA 512 safe zones. Different companies are treated differently under Section 512, and section companies ( b) for “system caching” (what CDNs do) are treated differently under the law than the hosting companies in section (c). However, the entire “notice and takedown” aspect of the law only applies to Section (c) companies. But the lawsuit simply ignored that and assumed that Cloudflare should be a company (c), rather than a (b).

And, surprisingly, as we wrote about two years ago, the judge refused to dismiss the case, but let it go beyond the motion to dismiss stage – meaning that ‘It was the subject of a very expensive discovery and other efforts before finally reaching the summary judgment stage, and now more than two years later the judge has granted dismissal on summary judgment. And, much like his refusal to fire, the opinion is rather short and does not go into detail. But at least this time it’s going well.

The plaintiffs have not presented evidence from which a jury could conclude that Cloudflare’s performance improvement services significantly contribute to copyright infringement. The complainants’ only evidence of the effects of these services is the promotional material on Cloudflare’s website touting the benefits of its services. These general statements do not address the effects of Cloudflare on the direct infringement at issue here. For example, the complainants have offered no evidence that faster load times (assuming they are faster) would likely result in many more breaches than without Cloudflare. Without such evidence, no reasonable jury could conclude that Cloudflare “significantly magnif[ies]”The underlying offense. Amazon.com, Inc., 508 F.3d at 1172. Cloudflare’s services are also not an “essential step in the infringement process”. Louis Vuitton Malletier, 658 F.3d at 944. If Cloudflare removed the infringing material from its cache, the copyrighted image would still be visible to the user; removing material from a cache without removing it from the hosting server would not prevent the direct violation from occurring.

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 held liable. of an offense per 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.

This is the correct decision, but it should have been rendered two years ago at the motion to dismiss.

Indeed, while this is not a Section 230 case, it is yet another example of why the procedural advantages of Section 230 are so important. Maybe one of the reasons people don’t understand this is because they don’t understand how much more a trial costs after a dismissal motion, but it’s a huge change. A motion to dismiss can run into the tens of thousands of dollars (depending on various factors). But if you go over that and have to go find out, you’re now talking hundreds of thousands of dollars, and maybe go over a million before you get a decision on summary judgment. It’s a fat difference and a huge cost to businesses (especially smaller ones). A cost that can completely destroy small businesses – for a lawsuit that didn’t stand a chance from the start.

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Filed Under: cdn, copyright, infringement, dmca, dmca 512, refuges, summary judgment
Companies: cloudflare, mon cheri bridals


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