Cloudflare: What Role for Intermediaries?
In our last article we discussed the position of intermediaries, and of Cloudflare in particular, on IP blocking. Several disputes have taken place in recent years, making it possible to try to define Cloudflare’s responsibility in putting illicit content online and keeping it there. Regardless of responsibility, many internet intermediaries have agreed to take measures to prevent consumers from suffering harm: infringement of intellectual property, but also, at times, threats to people’s safety. Solutions could be proposed so that Cloudflare takes its responsibilities and gets involved against the proliferation of illicit content online, without disproportionately calling into question the freedom that must remain the hallmark of the internet.
Cloudflare’s inertia
In 2016, the Recording Industry Association of America, an association that represents the music industry in the United States, had already pointed out to the Department of Commerce that Cloudflare’s services were among those that cause the most harm to rights holders by masking the provider of sites dedicated to music piracy. In 2019 this was brought to the attention of the US government again, by the RIAA once more, but this time together with the Motion Picture Association and the Association of American Publishers: according to them, Cloudflare was seriously hindering anti-piracy efforts by helping pirate sites conceal where they are hosted. The Digital Citizens Alliance, which represents several major Hollywood studios, had on the same occasion pointed out that Cloudflare’s services were the ones that appeared most often in the analysis of sites making protected content available; moreover, these same sites most often expose consumers to malware. Cloudflare, as usual, defended itself by replying that it does not host these sites and can neither block them nor wishes to. In October 2022 the MPA, on behalf of Netflix, Paramount, Sony Pictures, Universal and Warner Bros, filed a new submission with the Trade Representative stating that Cloudflare was involved in more than six million infringements. Cloudflare put forward the same defence based on its position as an intermediary.
Cloudflare therefore holds a unique position; it is a key intermediary whose services are essential to the operation of websites whose business is to infringe intellectual property. However, it always reacts by claiming to have no responsibility, and its line has not changed over the years.
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What solutions?
If Cloudflare were ready to do more to help rights holders, the situation could improve considerably for them: indeed, if Cloudflare’s policies were stricter, fewer bad actors would use its services.
Cloudflare could, for example, remove or refuse its services to any website whose illegality has been recognized by a body charged with upholding the law, when it is legally clear that the site serves no legitimate purpose.
The company could also publish a full transparency report, which could contain, for example, the domain names of the websites using its services that have been reported by rights holders.
When they grant their services to a new customer, they should require, as most sites do, company registration documents and bank account details, verify the telephone number, and so on. These are fairly simple checks that almost every site asks for when a new account is registered, but that Cloudflare does not bother to collect.
Cooperation with Google?
Google is required by law to remove search results from its index when rights holders or their agents inform it of the existence of illicit URLs. When a threshold of reported URLs is reached, Google demotes the website or removes it from its index. Google considers a website to be fundamentally illicit when a large number of notices have been sent to it about the same website. Beyond a certain threshold, Google recognizes that the website is illicit and demotes it. Cloudflare could align itself with Google’s decisions; once it is confirmed that the site has been delisted by Google, Cloudflare could then terminate or suspend services for all of that website’s domains (current and future). That way, it would not be Cloudflare making a decision it has repeatedly said it does not want to take on; it would merely be confirming Google’s position.
What influence on users?
Obviously, these solutions seem easy to implement, but they raise problems, notably in terms of data access and sharing. Indeed, while Cloudflare may seem to be acting in bad faith in defending its position, some of its arguments must nevertheless be heard: those concerning access to information and the neutrality and independence of the net. It is clear that if intermediaries began to intervene more actively – and potentially intrusively – in the enforcement of intellectual property law (and of the law in general), there would inevitably be an impact on freedom of expression and privacy. But on the other hand, internet users’ rights are not respected as long as illegal content that violates individual rights and possibly people’s safety remains accessible. A balance must therefore be found between total impunity and absolute surveillance, which is not easy in the absence of harmonized global regulation.
We will be back in March with our new theme: the collection of personal data. In the meantime, if you have a film, a series, software or an ebook to protect, don’t hesitate to call on our services by contacting one of our account managers. PDN has been a pioneer in cybersecurity and anti-piracy for more than ten years, and we are bound to have a solution to help you. Happy reading, and see you soon!
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