Cloudflare Faces Stepped-Up Litigation for Failing to Remove Infringing Sites

Cloudflare quickly took down neo-Nazi websites.  But, why hasn’t it done the same for pirating websites?

Cloudflare doesn’t have a good relationship with the entertainment and music industries.

For over a year, ALS Scan had remained in a bitter legal battle against the content delivery network.  According to the adult entertainment publisher, Cloudflare has failed to take action against pirate websites.  The CDN also fails to respond to claims against these sites.

The Recording Industry Association of America (RIAA) has also denounced the popular hosting provider.

In a report highlighting the fight against piracy, the RIAA wrote,

[Piracy] sites are increasingly turning to Cloudflare because routing their site through Cloudflare obfuscates the IP address of the actual hosting provider, masking the location of the site.

Cloudflare’s clients include The Pirate Bay.  The company had also provided hosting services for the now-defunct MP3Skull.

Following deadly protests in Charlottesville last year, Matthew Prince, the hosting provider’s CEO, immediately terminated hosting for neo-Nazi websites.

That move backfired for Cloudflare.

Entertainment industries quickly asked why Prince and his company haven’t done the same for notorious piracy hubs.

Now, a new lawsuit will test Cloudflare’s copyright liability.  This time, it doesn’t come from the entertainment or the music industry.

A tale of stolen wedding dress designs.

Mon Cheri Bridals and Maggie Sottero Designs, two wedding dress manufacturers and wholesalers, have filed a contributory infringement lawsuit against Cloudflare at the United States District Court for the Central District of California.

The CDN provides services to Chinese websites.  These sites, claim both companies, sell wedding dresses based on their designs.  They use photos from Mon Cheri Bridals and Maggie Sottero Designs.

The photographic images of plaintiffs’ dress designs are the lifeblood of plaintiff’s advertising and marketing of their dress designs to the consuming public.

The wedding dress manufacturing industry, continues the lawsuit, invests hundreds of thousands of dollars “in the development of sophisticated marketing campaigns which involve the engagement of models and photographers and the coordination of expensive photoshoots to capture the appropriate ‘look’ of the campaign for a particular line of dresses.”

But, should courts hold third-party intermediaries like Cloudflare liable for what their clients do?

According to both companies, yes.

[Cloudflare] shields pirate sites and their hosts from legal recourse by copyright owners.

ALS Scan had made a similar claim in its lawsuit.  A judge later denied Cloudflare had any direct liability.  The embattled Cloudflare settled with the adult entertainment publisher last June.

Cloudflare’s services, write both wedding dress companies, allow counterfeit websites and their owners to conceal their true identity from copyright owners.

When presented with a notice of infringement, Cloudflare asserts that it is itself unable or unwilling to remove any infringing content, that it is merely a ‘pass-through security service’ and not a hosting provider, and that the copyright owner must contact its customer to seek removal of the infringing content.

Mon Cheri Bridals and Maggie Sottero Designs state that they’ve issued takedown notices the CDN has clearly ignored.

Plaintiffs have filed hundreds of ‘takedown notices’ with Cloudflare, consistent with the Digital Millennium Copyright Act (DMCA), but Cloudflare has failed and/or refused to respond to those notices by terminating its services to infringers.”

Along with preliminary and permanent injunctive relief, both companies have asked the court for damages totaling no less than $1 million as well as statutory damages under the Copyright Act.

Should a judge rule in the plaintiffs’ favor, expect major labels as well as music and entertainment organizations to file similar lawsuits.

You can view the lawsuit below.


Featured image by Garreth Heath (CC by 2.0).

One Response

  1. Noodle

    You cannot copyright a dress design.

    The legal papers here fail to distinguish between the uncopyrightable dress designs and copyrightable photographs of dresses. The latter can be copyrighted — photo of the dress — but the former cannot (design of the dress).

    Reading the legal papers leaves me with the impression they are conflating the two and not seeking to recover damages for purloined photos (themselves unlikely to be registered with the USCO).

    If they want a US copyright for their dress designs they need to buy and pay for that right from the US Congress like every industry that came before them.