Very Confused Judge Allows Bizarre Copyright Lawsuit Against Cloudflare To Continue

from the that's-not-what-the-law-says? dept

In the past, law professor Eric Goldman has suggested that when it comes to infringing content, courts have an uncanny ability to ignore the actual law, and make up their own rules in response to the belief that "infringement bad!" An ongoing lawsuit against Cloudflare seems to be a case in point. As covered by TorrentFreak, a judge has allowed a case against Cloudflare to move forward. However, in doing so, it seems clear that the judge is literally ignoring what the law says.

The case itself is... odd. In the complaint, two makers of bridal dresses are upset about the sale of counterfeits. Now, if we're talking about counterfeits, you'll probably think that this is a trademark lawsuit. But, no, Mon Cheri Bridals and Maggie Sottero Designs are trying to make a copyright case out of this, because they're arguing that sites selling counterfeits are using their copyright-protected photos to do so. And Cloudflare is, apparently, providing CDN services to these sites that are selling counterfeit dresses using allegedly infringing photographs. It is odd to go after Cloudflare. It is not the company selling counterfeit dresses. It is not the company hosting the websites of those selling counterfeit dresses. It is providing CDN services to them. This is like suing AT&T for providing phone service to a counterfeit mail order operation. But that's what's happening. From the complaint:

The photographic images of Plaintiffs’ dress designs are the lifeblood of Plaintiffs’ advertising and marketing of their dress designs to the consuming public. Plaintiffs invest hundreds of thousands of dollars each year 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. Plaintiffs’ ability to market their unique dress designs to consumers is driven largely by the images of their dresses which appear on their websites and in other marketing materials.

Plaintiffs, along with other members of the formalwear industry, are the victims of a massive Internet scheme to advertise and sell products using the copyrighted images of their dresses. These Internet websites, including ones serviced by Cloudflare which are the subject of this Complaint, have manufactured, imported, distributed, offered for sale and sold counterfeit goods, including bridal gowns, social occasion dresses, prom dresses and other formalwear using copyrighted images of Plaintiffs’ dresses, they continue to do so to this day.

Again the legal violation here seems very, very far removed from Cloudflare, and yet it's Cloudflare these companies are suing. In response, Cloudflare submitted a fairly thorough and detailed motion to dismiss, highlighting how there's no actionable claim against Cloudflare.

The Court should dismiss this action for several reasons. First, the plaintiffs have not alleged facts that meet the standard for contributory infringement in the Supreme Court’s landmark case Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, (2005), and the Ninth Circuit’s most recent restatement of its jurisprudence in Cobbler Nevada, LLC v. Gonzales, 901 F.3d 1142 (9thCir. 2018). The plaintiffs have not alleged that Cloudflare’s service is so devoted to infringement that it is incapable of substantial non-infringing use. Nor can the plaintiffs cure that defect by amendment: plaintiff Maggie Sottero Designs is a Cloudflare customer. Second, the plaintiffs cannot allege, or ever show, that Cloudflare has actively and intentionally encouraged its customers, by clear expression or other affirmative steps, to infringe upon the plaintiffs’ copyrights. No facts exist to support such a claim. For that reason, the plaintiffs allege only Cloudflare’s passivity in failing to terminate customers whom the plaintiffs accuse of being infringers. They cannot state a viable claim because the alleged inaction does not suffice to create contributory infringement liability.

That is all pretty important. But there's also a second defect in the complaint. It confuses the law.

The plaintiffs’ invocation of the Digital Millennium Copyright Act, 17 U.S.C. § 512, has no bearing on the contributory infringement claim for two reasons. First, the DMCA is relevant only as providing a remedies limitation after a determination of liability. There is no basis for Cloudflare’s liability to begin with. Second, the plaintiffs ground their irrelevant DMCA argument on a fatal error in their notifications of claimed infringement: they had in mind the wrong subsection of the DMCA, applicable only to hosting providers, instead of the subsection that applies to system caching providers like Cloudflare. They therefore failed to provide in the notifications additional elements that were necessary for Cloudflare. The plaintiffs cannot cure these defects in an amended pleading.

This all requires a bit of explanation. First, "contributory" infringement is a concept that is not technically in the statute, but was invented by the Supreme Court in the Grokster decision back in 2005. However, the Supreme Court made it clear that for their to be contributory infringement, the party in question had to take affirmative steps to encourage or induce the infringement. Here, the bridal dress companies make literally no attempt to show any such activity (perhaps because there was none).

Second, for Cloudflare to be engaged in contributory infringement, under the Betamax case, the dress companies would separately need to show that Cloudflare's service is incapable of substantial non-infringing uses (the standard that was used to declare the VCR legal). That's why the Cloudflare motion to dismiss notes that one of the plaintiffs is, in fact, a Cloudflare customer (and has been for years). That certainly goes a long way towards showing that the plaintiffs know that Cloudflare has substantial non-infringing uses.

The second part is even more bizarre. The DMCA's safe harbors in Section 512 of the law apply differently to different types of internet companies. Section (a) is for "transitory digital network communications" (i.e., internet access providers. Section (b) is for "system caching" (i.e., CDN providers). Section (c) is for providers of "information residing on systems or networks at direction of users" (i.e., hosting providers) and Section (d) is for "information location tools" (i.e., search engines). There are slightly different rules associated with each one.

I should note that it's a good thing that the drafters of the DMCA actually were cognizant enough of the different types of players here. As I noted just recently, things get really funky when policymakers and courts fail to distinguish between different providers of different services. And here, the judge doesn't even seem to care.

From the above list, you'll see that it's pretty clear that Cloudflare is covered under section (b) as it's providing CDN services to the sites in question. Oddly, however, the "takedown notice" that the bridal dress companies provide doesn't even appear to be addressed to Cloudflare and doesn't appear designated for Cloudflare at all. Indeed, it appears to be addressing a hosting provider. Not a CDN. In fact, in the letter, it references 512(c) and not 512(b) and talks about sites "your company hosts" (Cloudflare doesn't host any sites).

As Cloudflare explained to the court, everything about this is just wrong.

Moreover, while the plaintiffs claim that Cloudflare “failed to take the appropriate action required by law in response to these notices,” see Complaint ¶ 32, the plaintiffs neither offer sufficient facts about any communications nor allege facts showing what “appropriate action” Cloudflare was supposed to take, the failure of which would constitute clear expression or other affirmative steps to foster infringement.7 The sample communication the plaintiffs attach as Exhibit B does not contain any reference to Cloudflare at all; the language suggests that the plaintiffs’ agent directed the communication to a hosting service, not a provider of pass-through and caching services such as Cloudflare: “please be advised that this message serves as the 4th formal notice under the DMCA that a website that your company hosts . . . is illegally duplicating and reproducing at least one copyrighted work . . . .” Dkt. 1-2 (emphasis added). The communication also identifies itself explicitly as a notification “under Section 512(c) . . . .” But Cloudflare is a system caching provider under section 512(b), not a hosting provider under section 512(c), and notifications of claimed infringement under section 512(b) require essential additional information that Exhibit B lacks. See 17 U.S.C. § 512(b)(2)(E)(ii) (requiring statement that the source website of the cached material has removed or disabled access to it at the source or that a court has ordered it to do so). The information in Exhibit B is thus irrelevant to Cloudflare. Because the plaintiffs identified Exhibit B as a sample of their communications, they cannot cure a pervasive defect in both their communications and their allegations that rely upon those communications.

This is actually a pretty big deal. Other courts have tossed out DMCA cases entirely for deficient notices.

Finally, one other element in this case. It was originally filed in the Central District of California, but along the way got moved to the Northern District. Along with the move, the bridal dress companies filed an amended complaint, in which they tried to fix some of the many deficiencies in the original, and this just gave Cloudflare a second chance to explain why the whole thing was nonsense. In this motion, Cloudflare dives deep on the difference between the different parts of DMCA 512 and what it covers:

The core defect of the plaintiffs’ case is their misunderstanding of the significant difference between web hosting services, which Cloudflare does not provide, and Internet security and website optimization services, which Cloudflare does provide. (Cloudflare explains its services more fully below.) The plaintiffs cannot allege that their notifications of claimed infringement were adequate for Cloudflare or that Cloudflare failed to take any simple measures that were available in the face of their communications... which the plaintiffs describe as a “sample” of “takedown notices” they sent to Cloudflare, lays bare the plaintiffs’ error.... The notice does not refer to Cloudflare. It simply identifies an (allegedly) “infringing domain,” speaks “To Whom it May Concern,” and then discusses “a website that your company hosts.” ... The exhibit also expressly references section 512(c) of the Digital Millennium Copyright Act (DMCA), a provision that relates to web hosting services and not to Cloudflare’s services. See 17 U.S.C. § 512(c). It thus fails to contain additional information that is necessary for notifications of claimed infringement to services like Cloudflare under 17 U.S.C. § 512(b)(2)(E). The amended complaint repeatedly makes clear that Cloudflare provides services to websites, which use other hosting services. Cloudflare does not itself host its customers’ websites.

In responding to this, the lawyer for the dress makers simply doubles down on the false claim that Cloudflare is hosting the content. It's... quite incredible. Also, the dress makers try to get around the lack of inducement by saying that the actual standard is "material contribution" and not "inducement."

In a clever sleight of hand, Cloudflare tries to sidestep the fact that it stores client website content, including infringing content, on its data servers in order to provide internet users with quicker, safer access to the infringing content. Ignoring the settled law which distinguishes between the “inducement” and “material contribution” pillars of contribution liability, Cloudflare conflates these two pillars in arguing that Plaintiffs’ claims, which are based only on the material contribution theory of contributory copyright infringement, do not satisfy the more demanding standard used to evaluate the inducement theory for contributory infringement. Cloudflare’s entire motion is therefore a strawman.

Except, literally all of that is wrong. This is not a question of different interpretations or different ways of looking at the law. This argument is just wrong. Indeed, as Cloudflare pointed out to the judge in response, the "material contribution" standard was used before Grokster in the 9th Circuit, but since that ruling came down, the 9th Circuit (as instructed by the Supreme Court in Grokster) now says that the proper test is whether or not there was inducement:

Before Grokster, the Ninth Circuit’s standard included “material contribution” language, but the Ninth Circuit has since conformed its standard to the Supreme Court’s teaching. (“Our tests for contributory liability are consistent with the rule set forth in Grokster.”) There is no third category of contributory infringement beyond what the Supreme Court articulated....

[....]

Material contribution is not a separate “theory” of contributory infringement but instead a way of characterizing imputed intent.

There is so much about this case that is just... bizarre and ridiculous. And yet, the judge basically shrugs about all of this and says the case may continue. And, incredibly, he gives no real reasons why other than basically saying that the (very wrong) arguments of the bridal dress shops are correct. The entire order denying the motion to dismiss is three paragraphs. Literally, that is it.

Cloudflare’s main argument – that contributory liability cannot be based on a defendant’s knowledge of infringing conduct and continued material contribution to it – is wrong. See Perfect 10, Inc. v. Visa Int’l Serv., Ass’n, 494 F.3d 788, 795 (9th Cir. 2007) (“[O]ne contributorily infringes when he (1) has knowledge of another’s infringement and (2) either (a) materially contributes to or (b) induces that infringement.”); see also Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 671 (9th Cir. 2017) (“[A] computer system operator is liable under a material contribution theory of infringement if it has actual knowledge that specific infringing material is available using its system, and can take simple measures to prevent further damage to copyrighted works, yet continues to provide access to infringing works.” (internal quotations and italics omitted)). Allegations that Cloudflare knew its customer-websites displayed infringing material and continued to provide those websites with faster load times and concealed identities are sufficient to state a claim.

2. The notices allegedly sent by the plaintiffs gave Cloudflare specific information, including a link to the offending website and a link to the underlying copyrighted material, to plausibly allege that Cloudflare had actual knowledge of the infringing activity. This is sufficient, at least at the pleading stage. A prior judicial determination of infringement was unnecessary.

3. Cloudflare’s challenge to the sufficiency of the notices under 17 U.S.C. section 512 is misplaced. Section 512 limits available relief based on certain safe harbors. Cloudflare has not shown that its conduct should be considered under one safe harbor rather than under another safe harbor (and thus has not shown that the alleged notice would need to be formatted in one way rather than another). In any event, this issue is neither dispositive to the action nor appropriate for resolution at this stage of the case.

This... is, again, simply incorrect. It completely misreads the law and previous cases. Paragraph three here is the most troubling of all. As noted above, Cloudflare is not a hosting service. It is not relying on the 512(c) safe harbors, but the 512(b) safe harbors, because it is a 512(b) service. And the judge literally ignores that and says that the company "has not shown that its conduct should be considered under one safe harbor rather than under another safe harbor" even though that's exactly what its filings repeatedly do.

I'm at a near total loss as to how the judge made this decision, because it is so far outside what the statute and case law (especially in the 9th circuit) say, that I can only conclude he decided to go with Eric Goldman's concept that when there's some infringement somewhere, all precedent and the letter of the law go out the window.

Filed Under: caching, cdn, contributory liability, copyright, dmca, dmca 512, hosting, inducement, notices
Companies: cloudflare, maggie sottero designs, mon cheri bridals


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  • icon
    Mason Wheeler (profile), 19 Jul 2019 @ 12:08pm

    In the past, law professor Eric Goldman has suggested that when it comes to infringing content, courts have an uncanny ability to ignore the actual law, and make up their own rules in response to the belief that "infringement bad!"

    The courts are only following the example set out by Congress, which literally threw out centuries of precedent and Western jurisprudence when they created the DMCA, discarding our most sacred legal traditions--the right to Due Process and the Presumption of Innocence--in favor of two distinct systems where the accused is presumed guilty on accusation alone and, (particularly in the case of DRM, though we see this more and more in the DMCA takedown system as well) has no legal recourse or appeal if a private actor falsely accuses and condemns them.

    If we want to get sanity back, we must repeal the DMCA.

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 19 Jul 2019 @ 12:17pm

      Re:

      If we want to get sanity back, we must repeal the DMCA.

      Although I can't argue with that my gut is telling me we have a real problem as Corporations keeping trying to pass more restrictive laws protecting imaginary property.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jul 2019 @ 12:24pm

    "...judge is literally ignoring what the law says."

    Unfortunately, the law means what the judge says it means and they can make that up as they go.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    ECA (profile), 19 Jul 2019 @ 12:31pm

    Wheres the pictures?

    So..
    This is about the use of Pictures, created by 1 seller and then used by the other seller(s)?
    Did they register the picture?
    Did they water mark the picture??

    Wheres the picture?
    And considering that you can LOCK the picture on your own site so no one can Copy/transfer it... I would like to compare them.. As well, WHY didnt they send a notice to the Other company???

    I have an idea about this... Picture May have all of the above, but the Dress wasnt Their creation. only the photo.
    Also, isnt it that Clothing Cant be CR?? Its an old ruling that has been around along time, because Everyone copies Everyone.. only Diff is what you make it from. and If you are paying out $2000+ for a dress to wear for ? days...

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    • icon
      James Burkhardt (profile), 19 Jul 2019 @ 1:07pm

      Re: Wheres the pictures?

      Please read the article. If you have no concept of reading comprehension, please cease asking questions.

      The lawsuit is over a photo, so your entire last paragraph about copyright in the dress has no bearing on the suit. This is highlighted early on when Mike suggests that you would assume it was a trademark lawsuit because they are fashion companies, but that it is actually a copyright lawsuit over photos of the dresses.

      The motions at issue are not debating the photo itself - its creation, its ownership, its registration. The photo its self doesn't matter to the discussion at hand, except insomuch as it exists for the dispute to occur. So that makes a lot of the rest of your commentary non-applicable to the article.

      The motions in here are about the procedural elements of the DMCA: disputes over what category of provider Cloudflare qualifies as and therefore what is required to issue a valid DMCA notice. We don't need to know what the photo is to assess these factors.

      As for why they didn't send a notice to the other company...That's the question Mike and Cloudflare are asking. In short - Cloudflare has a ton of money, and the actual infringer probably has very little, so sue the payday.

      reply to this | link to this | view in chronology ]

      • icon
        ECA (profile), 19 Jul 2019 @ 7:54pm

        Re: Re: Wheres the pictures?

        The motions at issue are not debating the photo itself - its creation, its ownership, its registration. The photo its self doesn't matter to the discussion at hand, except insomuch as it exists for the dispute to occur.

        And??
        Where is it, and how do you compare it with another that May be the same?? From lighting to setup to this that and everything else..

        Like an Artists Skills show thru in the painting.. Where is it.

        If we are comparing something then let see what makes it an Individual item.. A UNIQUE... but if its Just a Dress in front of a screen...then it isnt UNIQUE.

        reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 24 Jul 2019 @ 9:08am

      Re: Wheres the pictures?

      And considering that you can LOCK the picture on your own site so no one can Copy/transfer it...

      Um... what? How does one accomplish that?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Jul 2019 @ 6:49pm

      Re: Wheres the pictures?

      you can LOCK the picture on your own site so no one can Copy/transfer it

      You don't understand how the WWW works, do you? If you can see an image on a website, then the image has been transferred to your computer. Most likely, the image is also stored in your browser cache, which is effectively the same thing that Cloudflare is providing -- caching. It makes as much sense to prosecute Cloudflare for copyright infringement as it does to prosecute end users for copyright infringement.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jul 2019 @ 12:37pm

    Hosting

    It is not the company hosting the websites of those selling counterfeit dresses. It is providing CDN services to them.

    How is the distinction between CDN and hosting relevant here? CDN is effectively a type of hosting. Cloudflare's running web servers to send me the site's content—just not full-featured web servers, and I guess they don't keep the content long-term.

    If a host got sued, why shouldn't they make a similar claim of intermediary? It's not their content either; they're just serving content given to them by someone else. CDA 230 needs to protect both cases.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jul 2019 @ 1:15pm

      Re: Hosting

      The main difference is legal. A hosting provider under 512(c) provides content for users. A cdn under 512(b) can store content, for caching and network optimization, but cannot be the source(they have to get content from someone else, who isn't the uploader)

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Jul 2019 @ 1:29pm

        Re: Re: Hosting

        Thanks, I overlooked Mike's mention of that point the first time I read it. Cloudflare doesn't generally meet 512(b)(2)(A): it requires the content to be transmitted unmodified, whereas Cloudflare (in most setups) removes things that look like email addresses from web pages.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jul 2019 @ 1:43pm

      Re: Hosting

      While I agree that CDN's are a type of hosting, I feel that legal differences exist between cdn's and a domain host because a CDN doesn't have any context about how the content it hosts is being used (they know which sites are pulling down each piece of content, but as far as i know, that's about it). They don't really know whether that image of a wedding dress is an advertisement campaign setup run by a third party with permission of the
      owners of the image or whether it's a counterfeiter trying to confuse potential customers.

      I am very much not a lawyer, but based on the article, it seems like the 512(b) section exists to give the CDN company assurance that a judge has already ruled that the hosted content is actually infringing before its asked to be taken down. This, i assume, is because the CDN does not have the context needed to make this call for themselves.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Jul 2019 @ 2:16pm

        Re: Re: Hosting

        [CDNs] don't really know whether that image of a wedding dress is an advertisement campaign setup run by a third party with permission of the
        owners of the image or whether it's a counterfeiter trying to confuse potential customers.

        But that's all true of webhosts now. What does Amazon Web Services know about what it's hosting?

        reply to this | link to this | view in chronology ]

        • icon
          James Burkhardt (profile), 19 Jul 2019 @ 2:28pm

          Re: Re: Re: Hosting

          Hense why its much more important to understand that a CDN, at its core, is primarily a cache. That is to say, you never access the data on the CDN by requesting it from a CDN, you rather request it from the host. The CDN caches the most accessed data from that host to help with load balancing and data output. So the CDN provides some of that information when requested. But removal of the information from the CDN doesn't prevent access to the information, it just comes from the host instead. And in an automated CDN, the information would naturally repopulate in the CDN. Until you remove the information on the host server, removing the information on the cache fails to prevent infringement from occuring at all.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 19 Jul 2019 @ 4:29pm

            Re: Re: Re: Re: Hosting

            That is to say, you never access the data on the CDN by requesting it from a CDN, you rather request it from the host.

            But that's not how Cloudflare works. I looked up the DNS for techdirt.com and got 104.24.5.18, and guess who owns that?
            NetRange: 104.16.0.0 - 104.31.255.255
            CIDR: 104.16.0.0/12
            NetName: CLOUDFLARENET

            So, when I'm reading Techdirt, I'm requesting data directly from Cloudflare.

            But removal of the information from the CDN doesn't prevent access to the information, it just comes from the host instead.

            If Cloudflare disappears, Techdirt isn't going to be handling requests directed at CLOUDFLARENET. They could point their DNS to another CDN or directly at a host, but until they do, I don't know any way to access Techdirt without Cloudflare.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 19 Jul 2019 @ 4:50pm

              Re: Re: Re: Re: Re: Hosting

              So, when I'm reading Techdirt, I'm requesting data directly from Cloudflare.

              More like you are requesting Cloudfare to get data from Techdirt for you. If Techdirrt itself goes offline, you get an error message from Cloudfare. That is Cloudfare often acts as a caching proxy for sites, but only serves cached data if the site says it has not changed.

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 19 Jul 2019 @ 5:04pm

                Re: Re: Re: Re: Re: Re: Hosting

                Cloudflare really won't return cached data when the site's down? It's more typical of caches, in my experience, to retrieve/assign some "time to live" value that lets them return (some) cached data for a while in the event of an outage.

                reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 20 Jul 2019 @ 10:24am

                Re: Re: Re: Re: Re: Re: Hosting

                The issue is that CloudFlare obfuscates the true host, by running their DNS. So without a subpoena to CloudFlare, it's impossible to identify who the true host of the data are.

                I can't tell where TechDirt's servers are (where the DMCA-vulnerable data lie) is without asking CloudFlare.

                reply to this | link to this | view in chronology ]

                • icon
                  PaulT (profile), 20 Jul 2019 @ 10:45am

                  Re: Re: Re: Re: Re: Re: Re: Hosting

                  So... you’re saying that PO Boxes should be outlawed because they obfuscate the real address of the recipient?

                  reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 20 Jul 2019 @ 3:41pm

                  Re: Re: Re: Re: Re: Re: Re: Hosting

                  That is true of any site (domain) using nameservers operated by another party. That can be anyone who offers those services, or a PC in your buddy's basement.

                  If you want to ring up CloudFlare to find out who operates a site (the domain registrar or ... the actual hosting company, unless there is not one, may be a more clever option?), but you don't sue CloudFlare for content someone else posted.

                  reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 20 Jul 2019 @ 3:35pm

              Re: Re: Re: Re: Re: Hosting

              That isn't how nameservers work. They provide an authoritative instance of the IP and domain so the rest of DNS can find it.

              reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 19 Jul 2019 @ 1:46pm

      Re: Hosting

      To add, there is a technical justification as well. As a CDN their purpose is optimization, they data they store is a cache to improve dConcieveably, if the data is deleted from the CDN that data would automatically gets replaced as it once again gets requested by end users. And if the CDN goes away, the information is still available from the host directly, if a bit slower to load with higher drag on the network, whereas if the host goes away the information would naturally fall off the CDN's cache over time. The host copies need to be removed first, before the cache's copies can be reasonably removed.

      So the law, in a very thoughtful manner, requires the additional step of showing that the host has also taken down the data, or that a court has ordered them to. That prevents the duplication of effort to takedown the information as the CDN dutifully caches information that must be taken down.

      reply to this | link to this | view in chronology ]

      • icon
        James Burkhardt (profile), 19 Jul 2019 @ 1:48pm

        Re: Re: Hosting

        Man, I need to use preview when working on a laptop.

        My second sentence that was cut off was intended to read:

        As a CDN their purpose is optimization, they data they store is a cache to improve transmission efficency.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 Jul 2019 @ 1:59pm

          Re: Re: Re: Hosting

          My non-lawyer brain now has a much better understanding of 512(b)(2)(e) now.

          Thank you!

          (also, I now know that there is a preview button!)

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Jul 2019 @ 2:20pm

        Re: Re: Hosting

        And if the CDN goes away, the information is still available from the host directly, if a bit slower to load with higher drag on the network

        There's some disconnect between the law and modern practice. What you write would be true of ISP-provided caching, which was popular for a while and is now dead as dead. Sites host with Cloudflare for DDOS protection, among other benefits, and giving people the real server address would let them bypass that protection. If Cloudflare disables access, the site is effectively dead (until the owners reconfigure, as they could do if a host dropped them).

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Jul 2019 @ 10:06am

        Re: Re: Hosting

        That's the stated purpose. Hiding the host is the practical purpose.

        reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 20 Jul 2019 @ 12:39pm

      Re: Hosting

      Can we say this differently??

      If a book is published with Allot of pictures...Who is responsible when a person REMOVES a picture, and posts it in their locker?? Posts it where others can see? Posts it anywhere..
      Also, where is the verification of WHAT book it came from?

      reply to this | link to this | view in chronology ]

  • icon
    Gary (profile), 19 Jul 2019 @ 12:38pm

    Imaginary

    And don't forget that you can't copyright a dress. You can trademark your logo but I doubt there are any logos involved in this at all.

    So it's not even a valid copyright. Imaginary Property is so hard to hold onto....

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jul 2019 @ 12:51pm

      Re: Imaginary

      The copyright is on the photograph, not the dress. As someone else stated, the dress probably wasn't even made by them -- but the photograph was.

      It wouldn't even surprise me if these "counterfeit" dresses being referenced were actually made by the same people who made the "official" dresses -- just sold through channels that broke the agreement made with the plaintiffs.

      reply to this | link to this | view in chronology ]

      • icon
        Gary (profile), 19 Jul 2019 @ 1:27pm

        Re: Re: Imaginary

        The copyright is on the photograph, not the dress.

        But they are still claiming that the dresses are counterfeit.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 Jul 2019 @ 2:29pm

          Re: Re: Re: Imaginary

          They're claiming all sorts of things, most of which has no weight in the courtroom.

          The only thing that does is that they have infringing IP they're attempting to get removed from CloudFlare's servers. What they actually SAID to this end, however, makes as much sense as me suing the dressmakers because walruses are going extinct.

          reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 19 Jul 2019 @ 12:47pm

    Malicious or ignorant

    I'm at a near total loss as to how the judge made this decision, because it is so far outside what the statute and case law (especially in the 9th circuit) say, that I can only conclude he decided to go with Eric Goldman's concept that when there's some infringement somewhere, all precedent and the letter of the law go out the window.

    I can think of two possible reasons, neither of which leave the judge looking good. Either they decided ahead of time what they were going to rule and worked backwards from there, and to hell with anything else, or they honestly have no freakin' clue what the law says and are merely ruling on what they think is says.

    They're wrong either way, the only question at this point is whether or not they know they're wrong.

    reply to this | link to this | view in chronology ]

    • icon
      TKnarr (profile), 20 Jul 2019 @ 2:03am

      Re: Malicious or ignorant

      Third option: the judge has a heavy docket and decided that allowing the case to move forward is a safe option (at worst it's an issue to be decided at trial and the defendant suffers no injury because if their argument is valid they'll prevail at trial) while dismissing the case embroils him in an appeal by the plaintiff about him abusing his discretion. Unfortunately appeals courts have repeatedly been willing to ignore the injury resulting from having to go to trial over something that's an issue of law, not fact, and could have been decided without the costs involved in a trial. I don't think that'll end until defendants repeatedly and successfully argue after prevailing that their costs to defend themselves in court are in fact an injury that they're entitled to recover from the losing plaintiff. Or maybe when both attorneys for the plaintiff and judges start getting bar complaints filed about them willfully refusing to follow binding precedent handed down by the appeals courts about what the law says.

      reply to this | link to this | view in chronology ]

      • icon
        wshuff (profile), 22 Jul 2019 @ 4:47am

        Re: Re: Malicious or ignorant

        Fourth option. The docket is heavy and the judge just went with what the clerk said. Also, since this was a motion to dismiss then the defendant will have a second chance to end it on the pleadings with a motion for summary judgment. The court will likely take a harder look at that one. No resolving it with three paragraphs. It will require some actual analysis and the court will want to get that right. Or one would hope.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jul 2019 @ 1:03pm

    Apparently these dress-sellers do not want the infringing images actually removed. They just want to sue CloudFlare. And this judge is going for it. Too many idiots, not enough villages.

    reply to this | link to this | view in chronology ]

  • icon
    brad (profile), 19 Jul 2019 @ 2:49pm

    bribed

    Whenever I see something so stupid that there's no way a trained professional could screw it up, I assume there's money passing hands and the "dumb" ones are just reaching for whatever excuse they can pull out. I however am cynical enough to assume that all California courts are completely sewn up in Big IP's favour

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jul 2019 @ 6:43pm

      Re: bribed

      I however am cynical enough to assume that all California courts are completely sewn up in Big IP's favour

      Oh come on now, it's not like California is the home of Hollywood or anything.

      reply to this | link to this | view in chronology ]

  • identicon
    MR, 19 Jul 2019 @ 3:26pm

    C'Mon Now

    I'm not understanding this post. Are you seriously arguing that Grokster overruled the material contribution + knowledge prong of contributory infringement (which has been in the law since at least Gershwin in 1971) and instead replaced it with inducement ONLY? Can you point me to an appellate case that holds this? The court's order cites two Perfect10 cases that go the other way - were those overruled and I didn't hear about it?

    As to point 3, I think you're misunderstanding the plaintiff's argument and the court's ruling. I think it's an interesting question that will need to be litigated whether CloudFlare's particular CDN service satisfies the 512(b) caching requirements (I can think of a couple reasons it doesn't such as (b)(1)(C) requires the storage to happen AFTER the material is transmitted from source to destination-as in email storage-which is not how CloudFlare works).

    But that point is neither here nor there for THIS motion to dismiss. The allegation is that the notice-whether you call it 512(c), 512(b), or Rumpelstiltskin-gave CloudFlare the KNOWLEDGE under the required prong of contributory infringement.

    This is a motion to dismiss, so that's all the plaintiff needs to show to win - that it alleged aid and knowledge. And it did so. If CloudFlare wants to argue that it has a SafeHarbor affirmative defense, it is not precluded from doing so at a later stage of the litigation, and it may yet win on its mislabeling argument. But that doesn't make this order wrong, because it's really irrelevant to the question this order is answering.

    Now, here's what Eric Goldman would argue. This SHOULD be a relevant question on this motion, because CloudFlare may spend a lot of money and still win on the argument it is making here. Maybe so, but courts often don't jump ahead like that, and this is simply one of those cases.

    reply to this | link to this | view in chronology ]

    • identicon
      cpt kangarooski, 19 Jul 2019 @ 4:57pm

      Re: C'Mon Now

      Yeah, the idea that Grokster introduced contributory infringement is just wrong. The concept dates back at least to the 1920s and maybe earlier. Grokster merely added a new form: inducement.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Jul 2019 @ 7:25am

        Re: Re: C'Mon Now

        I don't know the ruling offhand, but vicarious/contributory infringement was decided in some "landmark" case I believe in 1926.

        The Perfect 10 cases were very strong against finding for infringement, even against Visa, who "touched the money" by processing payments (court said they didn't control the infringement because the infringers could just find another way to get paid, now by say bitcoin).

        Also only "red flag" notice is required.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 21 Jul 2019 @ 7:31am

          Re: Re: Re: C'Mon Now

          Perfect 10... how'd that case go again?

          Bankrupted themselves after trying to go after everyone and then reassigned all their assets so they wouldn't have to actually do the punishment the judge slapped them with.

          Yeah, really stand-up moral example you got there...

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jul 2019 @ 6:45pm

    There needs to be Tech dedicated judges. When it comes to tech, there are far too many judges and people in power who have no right to be making important decisions on something they clearly have little grasp on.

    reply to this | link to this | view in chronology ]

    • identicon
      cpt kangarooski, 19 Jul 2019 @ 10:40pm

      Re:

      There needs to be Tech dedicated judges.

      Careful. That sort of thinking gave us the Federal Circuit taking the lead on patent litigation and it’s been awful.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Jul 2019 @ 3:50pm

        Re: Re:

        Judges who understand any sort of knowledge domain should be everywhere. Or, you know, judges with reasonable critical thinking skills who cane and want to understand shit with a little study.

        Could say the same for legislators. Or everyone.

        reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 19 Jul 2019 @ 7:59pm

    And we wonder why I have such dislike for most copyright lawyers.

    This case at its core is Cloudflare has money, they should give us the money. The Judge ignoring the law should be on the list of things that result in an automatic tenure review...
    The should also be an automatic bar complaint against the lawyers who brought this bullshit & wasted judicial resources trying to sue the deep pocket & not the bad actor. They are being paid by clients to do something they can't deliver on because its actually barred by the fscking law. Its not new law with no real structure or tests, this shit is settled & these motherfuckers are stealing from clients.

    reply to this | link to this | view in chronology ]

  • icon
    blademan9999 (profile), 20 Jul 2019 @ 3:51am

    Copyright law just hates it went MIke Masnik is enforced.

    reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 20 Jul 2019 @ 3:52am

    Judges apparently need to take a drug test now before ruling--something to show they are somewhere close to being in their right mind.

    reply to this | link to this | view in chronology ]

  • identicon
    nemesis operational, 20 Jul 2019 @ 4:37am

    subject of matter not important

    judge needs to be retired, judge needs to get a brain. etc.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jul 2019 @ 6:20am

    Clousflare IS a hosting service. It's a PROXY host. They are listed as the HOST server for several controversial websites whose actual hosts boot them regularly. That is not a "dumb pipe."

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 20 Jul 2019 @ 6:47am

      Re:

      Your argument is as confused as your spelling. You’re essentially saying that a PO Box counts as the primary address someone lives since that’s where mail goes to.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jul 2019 @ 7:09am

    "Contributory" infringement goes back as far as copyright law itself, though it may have been treated as vicarious infringement and then separated.

    The "dance hall" example from 100 years ago in a case was cited many times (is the dance hall liable for infringing music?), as well as the "flea market" analogy.

    reply to this | link to this | view in chronology ]

  • identicon
    SpaceLifeForm, 22 Jul 2019 @ 11:00am

    At this point, we just have 'motion practice'.

    reply to this | link to this | view in chronology ]


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