District court rules against Cloudflare in anti-piracy suit
Wed 29 Mar 2017
A Florida district court has ruled that Cloudflare, the content delivery network (CDN), is not protected from anti-piracy injunctions by the Digital Millennium Copyright Act (DMCA).
As a result, Cloudflare may be held responsible for activities undertaken in support of torrent websites that have been served anti-piracy injunctions.
This decision serves as a clarification of the liability a CDN may have in regards to the web content it delivers. While Cloudflare is not directly responsible for copyright infringement activities conducted by clients, it may be responsible for defending actions that are seen as participating in evading legal injunctions against those sites.
Several members of the Recording Industry Association of America (RIAA) obtained a permanent injunction against a pirated content site known as MP3Skull that was serviced by Cloudflare. Rather than abiding by the injunction, MP3Skull continued to offer copyrighted material for download on a variety of different domain names.
Cloudflare was then served with notice of the injunction and asked to stop supporting the activities of MP3Skull. Cloudflare argued that the DMCA protected it from being enjoined with MP3Skull.
In this case, Cloudflare was not being enjoined to MP3Skull at all. Rather, it was asked to stop participating in supporting activities.
The relevant regulation was decided to be Rule 65 of the Federal Rules of Civil Procedure. This rule says that while a non-party may not be enjoined to another in an injunction, they also may not act ‘in active concert or participation’ to help another evade that injunction.
The court ruled that the section of the DMCA that restricts liability was inapplicable. Cloudflare was not being held responsible for the content of the MP3Skull website. Rather, it was being asked to stop participating in actions that helped the defendants violate the injunction.
The presiding judge did not decide whether or not Cloudflare was acting in concert with MP3Skull in evading the injunction, instead stating that Cloudflare had the right to due process and could defend itself on that point in a separate case.
Cloudflare was embroiled in another battle with the RIAA in 2015, when the courts were asked to clarify its role in serving the GrooveShark sites, which were also found to offer pirated content. At one point, the company was asked to automatically block any site with ‘GrooveShark’ in the title, a decision that was later changed to blocking specific sites shown to have copyrighted materials for download.