Cloudflare: A Crisis of Trust
In recent years, several courts in different countries have ordered Cloudflare to block many pirate sites. When it is a court order, the company has no choice but to comply. But even in these cases, Cloudflare tries to defend the core infrastructure of the sites concerned as much as possible – so even when Cloudflare blocks certain features for its customers, the associated sites generally remain operational.
DNS blocked in Italy
In the summer of 2022, however, the Italian music industry asked Cloudflare to block three torrent sites on the public DNS 1.1.1.1. The legal action was brought by members of the IFPI, the Italian recording industry body, which includes globally recognized multinationals such as the local branches of Sony Music Entertainment, Universal Music Entertainment and Warner Music Italia. The action was supported by the anti-piracy association FPM. “CloudFlare’s services were making it possible for users to access copyright infringing websites which were ordered to be blocked by the Italian regulator AGCOM,” said Frances Moore, chief executive of the IFPI.
The plaintiffs argued that even when pirate sites do not directly use Cloudflare’s CDN services, the company’s DNS resolver facilitates piracy. They therefore asked that the company be required to block the problem sites on its DNS servers.
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The Italian court sided with the plaintiffs, and a provisional injunction was issued, requiring Cloudflare to block the three torrent sites.
The decision is historic for intermediaries: it is the first time Cloudflare has received a real blocking injunction. It sets a very important precedent for the protection of online content by recognizing the responsibility of intermediaries in making copyright-infringing content available online. Cloudflare will very likely appeal; but in the meantime, the blocking had to be carried out, and the case serves as a warning to other intermediaries for the future.
The MPA goes after customer privacy
In the Americas, the MPA (Motion Picture Association), which we often mention in our pages, also regularly fights Cloudflare.
Last spring, for example, the MPA drew up a list of 70 platforms and companies linked to copyright infringement in a report for the US government. According to the MPA, companies that consider themselves intermediaries and do not feel concerned by their role in piracy must take their responsibilities. Cloudflare ranks high in the MPA’s report.
“Cloudflare’s customers include some of the most notorious, longstanding pirate sites in the world, including the massively popular streaming site cuevana3.me and The Pirate Bay,” the association says.
The Alliance for Creativity and Entertainment, an association that works closely with the MPA and brings together more than 30 major global entertainment companies and studios with a view to protecting intellectual property revenue, has brought an equally symbolic case before the courts. Cloudflare was served with a subpoena to obtain the identity of the individuals associated with 25 different streaming sites that, according to the court, infringed the exclusive rights of ACE members.
In February 2022, a US district court issued a subpoena to Cloudflare at the request of the Alliance for Creativity and Entertainment (ACE), to obtain the identity of the individuals associated with 25 different illegal streaming sites “who have exploited [ACE Members]’ exclusive rights in their copyrighted motion pictures without their authorization.”
The identifying information required by the subpoena would include “names, physical addresses, IP addresses, telephone numbers, email addresses, payment information, account updates and account history.”
Intermediaries are no longer untouchable
This is particularly sensitive and personal data, and it is a first in the history of intermediaries. Intermediaries such as Cloudflare have, in fact, made it their trademark to provide an illusion of security to their customers. As champions of a kind of free-thinking internet, Cloudflare makes a point of honour of trying to protect its customers at all costs; protecting their personal data and keeping their services running in all circumstances is part of its commitments.
This subpoena also raises other questions: some of the sites covered by the request to Cloudflare are not pirate sites in the traditional sense of the term. They are rather portals that provide lists of pirate sites, information on the status of the various download sites, new addresses and mirror sites in case of closure, and so on. But none of these sites strictly speaking contains content that infringes copyright.
The consequences for anti-piracy can only be positive. Indeed, the more the national authorities of the various countries affected by piracy manage to put pressure on the company, the easier takedown notices will be for rights holders.
Join us in December for a retrospective of piracy in 2022, in which we will look at the progress made and try to see what remains to be done. In the meantime, don’t hesitate to contact us if you have intellectual property to protect, and we will be happy to help.
