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In our previous article, we discussed the position of intermediaries, and specifically Cloudflare’s position on IP blocking. Several lawsuits have been filed to determine the extent of Cloudflare’s liability. Regardless of liability, many Internet intermediaries have agreed to take steps to prevent consumers from being harmed when operators use their services to infringe intellectual property. Solutions can be proposed to ensure that Cloudflare assume their responsibilities and take action against the spread of illegal content online without disproportionately compromising Internet freedom.

Cloudflare's consistent denial

In 2016, the Recording Industry Association of America, an association representing the music industry in the U.S., had already pointed out to the Department of Commerce that Cloudflare’s services were among the sites that caused the most damage by masking the provider of sites dedicated to music piracy. In 2019, the U.S. government was reminded of this fact, this time by the RIAA, along with the Motion Picture Association and the Association of American Publishers, that Cloudflare severely hampers anti-piracy efforts by helping pirate sites hide their location. At the same time, the Hollywood-affiliated Digital Citizens Alliance pointed out that Cloudflare’s services were the most frequently included in the analysis of sites offering protected content; moreover, these are the same sites that most frequently expose consumers to malware. Cloudflare, as usual, defended itself by saying that it did not host these sites, nor could it or would it block them. In October 2022, the MPA filed a new complaint with the Trade Representative on behalf of Netflix, Paramount, Sony Pictures, Universal, and Warner Bros. The complaint alleged that Cloudflare was involved in over six million violations. Cloudflare countered with the same defense, claiming to be an intermediary.

Cloudflare is therefore in a unique position; it is a key intermediary whose services are essential to the operation of websites whose activity is to infringe intellectual property and  harm brands and content owners. However, they always respond by claiming no liability and have done so consistently over the years.

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What solutions ?

If Cloudflare were willing to do more to help rights holders, the situation would improve significantly: indeed. If Cloudflare’s policies were stricter, fewer bad actors would use its services.

For example, Cloudflare could withdraw or deny service to any site whose illegality has been recognized by a legal authority, if it is legally clear that the site serves no legitimate purpose.

The company could also publish a full transparency report, including the domain names of sites using its services that have been reported by rights holders.

When providing their services to a new customer, they should, as most sites do, require company registration documents and bank account information, verify phone numbers, etc. These are fairly simple checks that virtually every site currently requires when registering a new account, but that Cloudflare doesn’t bother to collect.

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A cooperation with Google ?

Google is required by law to remove search results from its main index when notified by rights holders or their agents of the existence of illegal URLs. When a threshold number of reported URLs is reached, Google will demote or remove the site from its index. Google considers a site to be fundamentally illegal when it receives a large number of reports about the same site.  Cloudflare could follow Google’s lead; if it is confirmed that the site has been de-indexed by Google, it could then terminate or suspend services for all of that site’s domains (current and future). That way, Cloudflare wouldn’t be making a decision they’ve repeatedly said they don’t want to make; they’d simply be following Google’s decisions.

How does it affect users?

Of course, these solutions seem easy to implement, but they do raise problems, especially in terms of access to and sharing of data. Indeed, while Cloudflare may seem to be defending its position in bad faith, some of the arguments need to be heard: those regarding access to information and the neutrality and independence of the internet. It’s clear that if intermediaries begin to intervene more actively – and potentially intrusively – in the application of intellectual property law (and law in general), there will inevitably be an impact on freedom of expression and privacy. On the other hand, the rights of Internet users are not respected as long as illegal content, which violates individual rights and possibly personal safety, remains accessible. A balance must therefore be struck between total impunity and absolute surveillance, which is not easy in the absence of harmonized global rules.

In our next article, we’ll see if there are any solutions to make intermediaries more accountable. In the meantime, if you have a movie, series, software, or e-book to protect, don’t hesitate to use our services by contacting one of our account managers; PDN has been a pioneer in cybersecurity and anti-piracy for over a decade, and we’re sure to have a solution that can help you. Enjoy reading and see you soon!

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