Copyright Takedown: CloudFlare Gets Free Pass To Infringe

[grarpamp]

Seems a bit unusual ruling given the MAFIAA was
successfully taking down even links to links years back.
What did CF sell out to get this free fed pass...



https://arstechnica.com/tech-policy/2021/10/cloudflare-doesnt-have-to-cut-off-copyright-infringing-websites-judge-rules/

Cloudflare doesn’t have to cut off copyright-infringing websites, judge rules
Judge rules content-delivery service doesn't "contribute" to copyright
infringement.

https://storage.courtlistener.com/recap/gov.uscourts.cand.339512/gov.uscourts.cand.339512.1.0.pdf
https://storage.courtlistener.com/recap/gov.uscourts.cand.339512/gov.uscourts.cand.339512.151.0.pdf
https://storage.courtlistener.com/recap/gov.uscourts.cand.339512/gov.uscourts.cand.339512.28.0.pdf
https://storage.courtlistener.com/recap/gov.uscourts.cand.339512/gov.uscourts.cand.339512.124.1.pdf
https://storage.courtlistener.com/recap/gov.uscourts.cand.339512/gov.uscourts.cand.339512.133.0.pdf

A copyright infringement notice lying on a desk next to a keyboard
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Cloudflare is not liable for the copyright infringement of websites
that use its content-delivery and security services, a federal judge
ruled yesterday.

Cloudflare was sued in November 2018 by Mon Cheri Bridals and Maggie
Sottero Designs, two wedding dress manufacturers and sellers that
alleged Cloudflare was guilty of contributory copyright infringement
because it didn't terminate services for websites that infringed on
the dressmakers' copyrighted designs. The companies sought a jury
trial, but Judge Vince Chhabria yesterday granted Cloudflare's motion
for summary judgment in a ruling in US District Court for the Northern
District of California.

Chhabria noted that the dressmakers have been harmed "by the
proliferation of counterfeit retailers that sell knock-off dresses
using the plaintiffs' copyrighted images" and that they have "gone
after the infringers in a range of actions, but to no avail—every time
a website is successfully shut down, a new one takes its place."
Chhabria continued:

    In an effort to more effectively stamp out infringement, the
plaintiffs now go after a service common to many of the infringers:
Cloudflare. The plaintiffs claim that Cloudflare contributes to the
underlying copyright infringement by providing infringers with
caching, content delivery, and security services. Because a reasonable
jury could not—at least on this record—conclude that Cloudflare
materially contributes to the underlying copyright infringement, the
plaintiffs' motion for summary judgment is denied and Cloudflare's
motion for summary judgment is granted.

While the ruling resolves the lawsuit's central question in
Cloudflare's favor, the judge scheduled a case management conference
for October 27 "to discuss what's left of the case."
Hundreds of counterfeiting 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 many of the world's most unique and
original wedding and social occasion dress patterns." They own the
copyrights for those designs and for photographic images of the
designs.

Most of the websites selling counterfeit versions of the dresses
operate from China, the lawsuit said. In addition to Cloudflare, an
amended complaint listed 500 "Doe" defendants whose real names were
unknown. The lawsuit said the Cloudflare terms say that any violation
of law justifies termination of service and that "CloudFlare's policy
is to investigate violations of these terms of service and terminate
repeat infringers."

The plaintiffs said they used a vendor called Counterfeit Technology
to find over 365 infringing websites that are users of Cloudflare,
including cabridals.com, bidbel.com, stydress.com, angelemall.co.nz,
jollyfeel.com, russjoan.com, missydress.com.au, and livedressy.com.
The plaintiffs said they sent Cloudflare thousands of takedown
notices, and often up to four notices about the same infringing sites,
but "Cloudflare has ignored these notices and takes no action after
being notified of infringing content on its clients' websites.

"Specifically, even after learning of specific, identified acts of
copyright infringement by the infringing websites through plaintiffs'
takedown notices, Cloudflare continues to cache, mirror, and store a
copy of the infringing websites and the infringing content on its data
center servers, and to transmit upon request copies of the infringing
content to visitors of the infringing websites," the amended complaint
said. "Cloudflare's contributions allow the Internet browsers of
visitors to the infringing websites to access and load the infringing
websites and content much faster than if the user was forced to access
the infringing websites and content from the primary host absent
Cloudflare's services."

The plaintiffs argued that Cloudflare should have terminated caching
services to these websites, blocked traffic traveling through
Cloudflare's network to the websites, "and reconfigur[ed] its firewall
settings so that users trying to access the infringing domain would be
redirected to a blank page."

Cloudflare: “Lawsuit based on a fundamental misunderstanding”

Cloudflare argued that the plaintiffs "brought this lawsuit based on a
fundamental misunderstanding of Cloudflare's services, the
contributory copyright infringement doctrine, and the Digital
Millennium Copyright Act, all in pursuit of a statutory damages
windfall that has nothing to do with the harm they claim to have
suffered." A victory for the plaintiffs would amount to "an expansion
of the contributory infringement doctrine far beyond its established
limits," Cloudflare told the court.

Cloudflare continued:

    Cloudflare is nothing like the search engines and peer-to-peer
networks that the [US Court of Appeals for the] Ninth Circuit has
found "significantly magnify otherwise immaterial infringements."
Whereas Cloudflare's services protect against malicious attacks and at
most confer a split-second advantage to the loading time of a website
someone is already visiting, the services previously considered by the
Ninth Circuit actually helped visitors find infringing material they
otherwise never would have found. There also is no 'simple measure'
that Cloudflare failed to take to prevent further infringements in
this case. Unlike hosting providers, Cloudflare could not remove
allegedly infringing material from the Internet, and there is no
question that those images would have remained available and equally
accessible on the accused websites without Cloudflare's services.

Cloudflare offers a mix of free and paid services.
Judge explains why Cloudflare isn’t liable

A defendant is liable for contributory copyright infringement if it
has knowledge of another's infringement and materially contributes to
or induces that infringement, the judge noted in his ruling against
the dressmakers. "Simply providing services to a copyright infringer
does not qualify as a 'material contribution,'" he wrote. "Rather,
liability in the Internet context follows where a party 'facilitate[s]
access' to infringing websites in such a way that 'significantly
magnif[ies]' the underlying infringement."

Although a defendant can be found to materially contribute to
copyright infringement if it acts as "an essential step in the
infringement process," this should not be interpreted too broadly, the
judge wrote.

"As the Ninth Circuit has recognized, the language used in these tests
is 'quite broad' and could encompass much innocuous activity if
considered out of context. An analysis of contributory copyright
infringement must therefore be cognizant of the facts in the key cases
in which liability has been found," Chhabria wrote.

Mon Cheri Bridals and Maggie Sottero Designs alleged that Cloudflare
contributes to copyright infringement by providing
performance-improvement services, including its content-distribution
network and caching capabilities that improve the quality of webpages
and make them load faster, Chhabria wrote. But the "plaintiffs have
not presented evidence from which a jury could conclude that
Cloudflare's performance-improvement services materially contribute to
copyright infringement. The plaintiffs' only evidence of the effects
of these services is promotional material from Cloudflare's website
touting the benefits of its services. These general statements do not
speak to the effects of Cloudflare on the direct infringement at issue
here."

The plaintiffs did not prove that the faster website-load times
enabled by Cloudflare "would be likely to lead to significantly more
infringement." Additionally, Cloudflare removing infringing material
from its cache would not prevent users from seeing the copyrighted
images. "[R]emoving material from a cache without removing it from the
hosting server would not prevent the direct infringement from
occurring," Chhabria wrote.
Security services “make no difference” to users

The plaintiffs also tried to prove contributory infringement by
pointing to Cloudflare security services that detect suspicious
traffic and prevent attacks on a website's host. The judge dismissed
this argument, writing:

    Cloudflare's security services also do not materially contribute
to infringement. From the perspective of a user accessing the
infringing websites, these services make no difference. Cloudflare's
security services do 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 Cloudflare's provision of these services made it more
difficult for a third party to report incidents of infringement to the
web host as part of an effort to get the underlying content taken
down, perhaps it could be liable for contributory infringement. But
here, the parties agree that Cloudflare informs complainants of the
identity of the host in response to receiving a copyright complaint,
in addition to forwarding the complaint along to the host provider.

The plaintiffs had also sought a summary judgment against the Doe
defendants "but abandoned this motion in their reply brief," the judge
wrote.