Cloudflare Not Liable for Infringement by Sites That Use Its Services

A federal judge in California has ruled that Cloudflare, a cybersecurity company, isn’t liable for copyright infringement by websites that use its services.

In 2018, Mon Cheri Bridals and Maggie Sottero Designs, two wedding dress manufacturers and sellers, sued Cloudflare, alleging that it was liable for copyright infringement because it didn’t terminate websites that infringed the plaintiffs’ copyrighted designs.

As the judge noted in an order denying the plaintiff’s request for summary judgement, the plaintiffs’ “sales numbers and brand reputations are damaged by the proliferation of counterfeit retailers that sell knock-off dresses using the plaintiffs’ copyrighted images.”

Their efforts to shut down hundreds of infringing sellers had been fruitless, because as soon as one website was shut down, another would take its place.

The plaintiffs claimed that Cloudflare contributed to the infringement “by providing infringers with caching, content delivery, and security services.”

Specifically,

Cloudflare provides performance-improvement services, which include its content distribution network and caching capabilities. Together, these products improve the quality of a customer’s webpage, primarily by making content load faster for users. Second, Cloudflare provides security services by inserting itself between the requesting user and the host of the underlying content. As an intermediary, Cloudflare can detect suspicious traffic patterns and prevent attacks on a website’s host.

As the court noted,

A party is liable for contributory copyright infringement where it “(1) has knowledge of another’s infringement and (2) either (a) materially contributes to or (b) induces that infringement.”

However, “Simply providing services to a copyright infringer does not qualify as a ‘material contribution.’”

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.

The court found no evidence that Cloudflare services materially contributed to the infringement:

For example, the plaintiffs have not offered any evidence that faster load times (assuming they were faster) would be likely to lead to significantly more infringement than would occur without Cloudflare. Without such evidence, no reasonable jury could find that Cloudflare “significantly magnif[ies]” the underlying infringement.

The court did say that

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.

However, the parties agreed that this was not the case.

In a blog post, Cloudflare stated

Over the years, copyright holders have sometimes sought to hold Cloudflare liable for infringing content on websites using our services. This never made much sense to us. We don’t host the content of the websites at issue, we don’t aggregate or promote the content or in any way help end users find it, and our services are not even necessary for the content’s availability online. Infrastructure service providers like Cloudflare are not well positioned to solve problems like online infringement.

The company said it had set up

abuse processes to assist copyright holders address the issue by connecting them with the hosting providers and website operators actually able to take such content off the Internet.