Cloudflare Doesn’t Have To Cut Off Copyright-Infringing Websites, Judge Rules

An anonymous reader writes: 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 (PDF) 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.” […] 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.”

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.