Cloudflare : broken trust ?

In recent years, Cloudflare has been ordered by several courts to block pirate sites. When it’s 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 affected sites as much as possible – so even when Cloudflare blocks certain features of its customers, the associated sites usually remain operational.

Italy DNS blocks

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 taken by members of IFPI, the Italian record industry body, including global corporations 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 allowed users to access copyright-infringing websites, the blocking of which was ordered by Italian regulator AGCOM,” said Frances Moore, IFPI’s director general.

The plaintiffs argued that even when pirate sites are not directly using Cloudflare’s CDN services, the company’s DNS resolver makes it easier for them to pirate. They therefore argued that the company should be forced to block problematic sites on its DNS servers.

The Italian court agreed with the defendants, and an injunction was issued, forcing Cloudflare to block the three torrent sites.

The decision is historic for intermediaries: it is the first time that Clouflare has received a real binding blocking order; it sets a very important precedent for the protection of online content by recognizing the responsibility of intermediaries for posting infringing content. It is very likely that Cloudflare will try to appeal; but in the meantime, the blocking had to be enforced, and the case serves as a warning to other intermediaries for the future.

Cloudflare client's confidentiality at risk

In the United States, the MPA (Motion Picture Association), also regularly fights against Cloudflare.

Last spring, for example, the MPA listed 70 platforms and companies linked to copyright infringement in a submission to the US government. According to the MPA, companies that see themselves as intermediaries, and do not feel concerned about their role in piracy, must take responsibility. Cloudfare figures prominently in the MPA’s report.

“Cloudflare’s customers include some of the world’s best-known and longest-running pirate sites, including the hugely popular streaming sites cuevana3.me and The Pirate Bay,” the association said.

The Association for Creativity and Entertainment, a coalition working closely with the MPA that includes more than 30 of the world’s leading entertainment companies and studios that have come together to protect intellectual property revenues, has brought an equally symbolic case to court. Cloudflare has been served with a subpoena to obtain the identities of individuals associated with 25 different streaming sites that the court finds have infringed the exclusive rights of CEA members.

In February 2022 A U.S. District Court issued a subpoena to Cloudflare at the request of the Association for Creativity and Entertainment (ACE), requesting the identities of individuals associated with 25 different illegal streaming sites “that have exploited ACE members’ exclusive rights to their copyrighted movies without their permission.”

The identifying information required by the subpoena “would include the individuals’ names, physical addresses, IP addresses, phone numbers, email addresses, payment information, account updates and account history.”

Intermediaries are no longer untouchable

This data is exceptionally sensitive and personal, and it is a first in the history of intermediaries. Internet intermediaries such as Cloudflare have made it their trademark to provide an illusion of security to their customers; as defenders of a form of Internet free-thinking, Cloudflare makes it a point of honour to seek to protect their customers at all costs; protecting their personal data and maintaining their services at all costs is part of their commitment.

This subpoena also raises other questions: indeed, some of the sites involved in the request addressed to Cloudflare are not pirate sites in the traditional sense of the term. The controversial sites are portals, which provide lists of pirate sites, information on the status of different download sites, new addresses and mirror sites in case of closure etc… But none of these sites contains content that directly infringes copyright.

The consequences for anti-piracy can only be positive. Indeed, the more the national authorities of the different countries of the world concerned by piracy manage to put pressure on the company, the easier the withdrawal requests will be for the rights holders.

Next month, join us for a restrospective of piracy for 2022, in which we will lookl back at progress made and try to see what still remains to be done. In the meanwhile, don’t hesitate to contact us if you have intellectual property that needs protecting, we will be happy to help you.

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