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Piracy Businesses Communications The Courts The Internet Technology

Cloudflare Is Liable For Pirate Sites and Has No Safe Harbor, Publisher Says (torrentfreak.com) 172

After dragging Cloudflare to court and accusing the web services company of various types of copyright and trademark infringement, noting that several customers used Cloudflare's servers to distribute pirated content, adult publisher ALS Scan told the California District Court this week that the company should be held liable for copyright infringements committed by its customers. According to TorrentFreak, "The company requests a partial summary judgement, claiming that the CDN provider assists pirates and doesn't qualify for safe harbor protection." From the report: "The evidence is undisputed," ALS writes. "Cloudflare materially assists website operators in reproduction, distribution and display of copyrighted works, including infringing copies of ALS works. Cloudflare also masks information about pirate sites and their hosts." ALS anticipates that Cloudflare may argue that the company or its clients are protected by the DMCA's safe harbor provision, but contests this claim. The publisher notes that none of the customers registered the required paperwork at the U.S. Copyright Office. "Cloudflare may say that the Cloudflare Customer Sites are themselves service providers entitled to DMCA protections, however, none have qualified for safe harbors by submitting the required notices to the U.S. Copyright Office. Cloudflare may say that the Cloudflare Customer Sites are themselves service providers entitled to DMCA protections, however, none have qualified for safe harbors by submitting the required notices to the U.S. Copyright Office."

Cloudflare itself has no safe harbor protection either, they argue, because it operates differently than a service provider as defined in the DMCA. It's a "smart system" which also modifies content, instead of a "dumb pipe," they claim. In addition, the CDN provider is accused of failing to implement a reasonable policy that will terminate repeat offenders. "Cloudflare has no available safe harbors. Even if any safe harbors apply, Cloudflare has lost such safe harbors for failure to adopt and reasonably implement a policy including termination of repeat infringers," ALS writes. ALS now asks the court to issue a partial summary judgment ruling that Cloudflare is liable for contributory copyright infringement. If this motion is granted, a trial would only be needed to establish the damages amount.

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Cloudflare Is Liable For Pirate Sites and Has No Safe Harbor, Publisher Says

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  • by vux984 ( 928602 ) on Friday February 02, 2018 @08:53PM (#56059605)

    "Publisher Says" ... nuff said

    When court says it, or legislation saying it actually says it, then it starts to mean something.

    Right now, its just horseshit. (Much like that Nunes memo.)

    • by Nutria ( 679911 ) on Friday February 02, 2018 @09:16PM (#56059729)

      And, of course, "The evidence is undisputed". No need for a trial; just seize CF's bank accounts now...

      • by Anonymous Coward

        Somehow I have a feeling that it actually is disputed. The disputing party? Cloudflare!

        Someone should tell this lawyer asshat that words have meaning, and that using them incorrectly undisputedly makes him look stupid.

      • by thomst ( 1640045 )

        Nutria pointed out:

        And, of course, "The evidence is undisputed". No need for a trial; just seize CF's bank accounts now...

        This.

        If Cloudflare is doing anything other than pleading guilty, the "evidence" is, by definition in dispute.

        The argument presented in this motion is pure handwaving. Any competent Federal judge is going to dismiss it out of hand, because no actual evidence is cited - only the claims presented in the argument itself.

        Claims and evidence are two legally distinct things, AFAIK. <DISCLAIMER>I am not a lawyer, nor do I play one on TV.</DISCLAIMER>

        And then, of course, ther

        • by Antique Geekmeister ( 740220 ) on Saturday February 03, 2018 @12:05AM (#56060385)

          The _eviodence_ need not be in dispute for a lawsuit or criminal prosecution to need to go to court. Whether an act is illegal can be in dispute. I'm particularly reminded of Edward Snowden, whose leaking of classified documents on NSA domestic spying is not in dispute. Whether he should be tried for treason, or given a Medal of Honor as a brave whistleblower is in dispute.

          • by thomst ( 1640045 )

            Antique Geekmeister cautioned:,/p>

            The _eviodence_ need not be in dispute for a lawsuit or criminal prosecution to need to go to court. Whether an act is illegal can be in dispute.

            What you say is true. However, the points the quoted argument cites are not evidence. They're the plaintiff's lawyer's characterization of relationships between the defendant (Cloudflare) and third parties not named as co-dependents - a.k.a. "opinions" ...

          • by Nutria ( 679911 )

            There's zero chance that Snowden will get a Medal of Honor.

      • The evidence is undisputed

        Actually given the fact that they are in court, I think the only correct statement is that the evidence is being disputed RIGHT NOW.

        • by Nutria ( 679911 )

          Hear that whooshing noise? It's sarcasm zooming over your head.

          • Hear that whooshing noise? It's sarcasm zooming over your head.

            No whooshing noise. Pro tip: Read the context, not every reply on Slashdot is disagreeing with you, and your sarcasm was not only noted but built upon.

            In case it's not obvious: This post is a negative reply to your silly whooshing comment.

            • by Nutria ( 679911 )

              your sarcasm was not only noted but built upon.

              If your statement Actually given the fact that they are in court, I think the only correct statement is that the evidence is being disputed RIGHT NOW was designed to build upon my sarcasm, then it did so horribly.

              • The problem is that neither one of you comprehend the difference between disputing evidence and disputing the law, and so your attempts at "sarcasm" are destined to be mere pedestrian ignorance.

                • by Nutria ( 679911 )

                  I do, in fact, know the difference. Does TFA mention whether or not CF disputes the evidence, or are you assuming that they don't?

      • by pots ( 5047349 )
        That's a decision, that's something a judge does based on an interpretation of evidence. Saying that evidence is undisputed means that no parties dispute the evidence, it doesn't mean that they all agree on how to interpret that evidence.

        So they say, "The evidence is undisputed, [and therefore] conclusion conclusion conclusion."
      • An important detail of civil suits that you might want to be aware of is that everything is divided into two categories, "facts" and "law," and all the claimed facts have to be either agreed to or disputed.

        So it is literally up to the other side if something is disputed. They're saying that the other side didn't dispute the facts, leaving those facts undisputed.

        It is not a matter of opinion, nor is it the type of situation you imply.

        The facts are not in dispute, the case rests on matters of law rather than

    • The memo says a few interesting things:

      The application was based primarily on claims from Steele, a person who himself had said he was "desperate that Trump not get elected and passionate that Trump not be president".

      The DOJ official interviewing Steele was Mr. Ohr.

      The Ohrs were being paid by the DNC and Clinton campaign to try to discredit Trump.

      This information was not revealed to the Court when DOJ sought the FISA warrant.

      Which is these facts do you call "horse shit" and why?

    • by Z80a ( 971949 )

      Cloudflare should just stop providing service for this publisher in particular and accidentally states that they did.

  • by Anonymous Coward

    ...doesn't make it so

  • by dos1 ( 2950945 ) on Friday February 02, 2018 @09:00PM (#56059641)

    What was the expression? A drowning man will clutch at a straw?

    • Re: Publishers... (Score:5, Insightful)

      by FunkSoulBrother ( 140893 ) on Friday February 02, 2018 @09:48PM (#56059889)

      I believe the relevant quote is:

      âoeIt is difficult to get a man to understand something, when his salary depends on his not understanding it.â

      • Lol slashdot doesnâ(TM)t support Unicode in TYOOL 2018

        • Slashdot supports Unicode just fine: € , what are you talking about?
          • Let's check that out with some katakana:
            If it works you should see something like a smiley face after the colon, the Tu character. I can see it in the text box I'm typing in so let's look at the preview....
             
            ...hmmm nothing.

            So let's see if it supports other codes up to the €; here's the character eight steps down from 20AC:
            Nope, there should have been a pound sign after the colon.

              The Unicode support seems to be extremely selective.

            • Nope, there should have been a pound sign after the colon.

              If you're not getting a pound sign, you're doing it wrong: £
              :-)
              Or did you mean hash? #

              The Unicode support seems to be extremely selective.

              The funny thing is that FunkSoulBrother's initial sentence didn't contain any non-Latin9 characters and neither was it supposed to. Or which non-ASCII Unicode character was supposed to be in there?

              • The octothorpe [wikipedia.org] has many names - in the US, it can also be called a pound sign.

              • Hey Nimrod, this is an American site and we speak American English, and we use a symbol which we sometimes call a "pound symbol" after some numbers to indicate that the units are in Pounds. It is pretty ignorant to get confused and think a "pound symbol" would talk about money, since money is counted using the units "dollars" and "cents."

                What you want would have to be called a "British Pound symbol," not a "pound symbol."

              • I actually meant a symbol that looks exactly like a £ but has Unicode 20A4 (the € sign minus 8).
                The unicode siteummything calls it a lira but I tried to keep it simple, so it naturally got got sodslawed.

  • The editor of this submission needs to be sent immediately to the Copyright Office him/herself, because they infringed on their own content 3x in one paragraph!

    Almighty Science! -smh :-(

  • Go after ... (Score:5, Interesting)

    by CaptainDork ( 3678879 ) on Friday February 02, 2018 @09:18PM (#56059741)

    ... the offender.

    The reasoning here would support my electric company's termination of service because I download copyrighted material.

    • As soon as they can determine who is legally responsible for electrons...

    • Re:Go after ... (Score:4, Interesting)

      by Xenx ( 2211586 ) on Friday February 02, 2018 @09:56PM (#56059937)
      Your analogy is entirely flawed. Your electric company is incapable of seeing what you do with your internet connection. There is no interpretation of the DMCA that could be used to implicate them.

      I don't support this move, but there is basis for it. First would be, whether to provide safe harbor to Cloudflare as a provider. I would argue to do so. The second would be the fact that the DMCA does require you to have policies in place to deal with repeat offenders. I work for an ISP and have spent a fair bit studying it when I was the one responsible for processing infringement notices. I am by no means an expert. My understanding is that it emphasizes having a policy in place, but not how you handle them. The key is that they have one, and stick to it. Finally, in regards to them being a smart system instead of a dumb pipe... I don't know enough. If Cloudflare is actively monitoring the content of the traffic, it potentially leaves them open as they now knowingly permitted the traffic.
      • Re: (Score:2, Interesting)

        by Anonymous Coward

        It looks like they do have a process for dealing with offenders: https://support.cloudflare.com/hc/en-us/articles/200167716-How-do-I-file-a-DMCA-complaint-

      • Re:Go after ... (Score:5, Insightful)

        by Mr307 ( 49185 ) on Friday February 02, 2018 @10:37PM (#56060087)

        There is a gigantic difference between monitoring for performance compared to monitoring content, let alone categorizing content for policing.

        Who imposed the requirement for someone providing a service to monitor content for policing? Would that not be counter productive to their service offering, would anyone actively use a service which monitored all content for delivery to be used someone who is not a customer or whatever, let alone some random copyright holder?

        Just think of the burden of having to police for 'every' single rights holder of any sort of information/content/whatever. Its ridiculous.

        If they dont already they should internally anonymize and or encrypt everything they handle so they can divest themselves of any liability or future nonsense.

        • There is a gigantic difference between monitoring for performance compared to monitoring content

          Your words would either help cloudflare, or totally sink their argument, depending on if they're actually monitoring content.

          What if they are?

      • Blah, blah, blah.

        Look, you and I agree that some asshats are breaking copyright laws.

        The owners of the IP have a gripe with the perps and no one else.

        This "get the carriers to be the police" is bullshit.

        The way that would work is for the carriers to charge the IP owners for doing the dirty work.

        In any case, you and I both know damned well it's "whack-a-mole."

        As soon as IP is digitized, it's effectively in the public domain.

        • by Xenx ( 2211586 )
          I do agree that the whole situation is completely BS. They're going after Cloudflare, because they might actually make money off it if they win. The only part of it that has any real standing in my eyes is the repeat offenders. I believe Cloudflare should be responsible if they allow repeat offenders to continue copyright infringement. However, whether the customer was a repeat offender should be determined by the courts.
          • I'm 95% in agreement.

            Where I depart is involving Cloudflare at all, at any time unless Cloudflare is compensated by IP owners and backed by court decisions to proceed.

            The real culprit is at the OTHER end of the connection -- where the pirated stuff is stored by crooks. THAT'S where the focus should be.

      • by sosume ( 680416 )

        Well then, the post office isn't liable if you send drugs through the mail. They would be able to detect that.
        A car company isn't liable if you cause a traffic accident. They would be able to prevent many but it's too expensive.
        A gun company isn't liable when you kill someone. Still, the use case for guns is extremely clear.
        Etcetera. You cannot hold utility providers liable for what people choose to use it for, full period.

        • DMCA doesn't cover restrictions on Romulan Ale, so that is also irrelevant.

          Oh, and they're not accused of littering, so littering law is also irrelevant.

          I'm curious though, what country are you from where you mangle an English colloquialism and end up with "full period?" It is "full stop" in British English, and also in American English. You don't translate all instances of the word "stop" to "period." Just leave the colloquialisms aside, you're not supposed to intentionally try to use them.

          I'm guessing Fra

  • Hey now! (Score:4, Funny)

    by Ol Olsoc ( 1175323 ) on Friday February 02, 2018 @09:38PM (#56059835)
    I volunteer to be on that jury, and demand they produce every bit of the evidence!
    • by Anonymous Coward

      .........and with that, you just failed jury selection.

      • .........and with that, you just failed jury selection.

        I promise to bring along paper towels for everyone though! So unfair...

    • by dgatwood ( 11270 )

      I volunteer to be on that jury, and demand they produce every bit of the evidence!

      I can see it now. Ten minutes into the plaintiff's opening arguments, one of the jurists says, "Your honor, with all due respect, pics or it didn't happen."

      • by meglon ( 1001833 )
        That's going to be a lot of pics... i can see this jury pool setting a new record for length of time "deliberating."
    • What's the matter with you? Nobody VOLUNTEERS for jury duty...
      • What's the matter with you? Nobody VOLUNTEERS for jury duty...

        Actually, I wanted to be on it. But the two times I was called to service, I knew the arresting police. I do know a lot of the locals, so I might have ot do a federal case in a different area.

        But back to this case, I'm certain that there will be a lot of interesting evidence to pore over.

  • by Beached ( 52204 ) on Friday February 02, 2018 @10:23PM (#56060033) Homepage

    If changing the content means taking on liability would that not imply that an ISP that modifies encrypted content is liable for infringement too?

    • by Luthair ( 847766 ) on Friday February 02, 2018 @10:33PM (#56060067)

      From the article:

      Previously, the court clarified that under U.S. law the company can be held liable for caching content of copyright infringing websites. Cloudflare’s “infrastructure-level caching” cannot be seen as fair use, it ruled.

      Seems pretty insane, this would suggest that ISP edge caching of unencrypted content is infringing, ditto for image search engines.

      • by c ( 8461 )

        Seems pretty insane, this would suggest that ISP edge caching of unencrypted content is infringing

        Naw, that issue seems to have been nailed down already [cornell.edu].

        I assume that's why the complaint is doing its best to break the comparison between Cloudflare and any sort of service provider or cache. I suspect there's enough room for interpretation that there's no chance they'll get the summary judgement they'd like.

        • That's not what a summary judgement is for. It isn't a tool for when the judge thinks it is as easy call. In a civil case, you allege a bunch of facts, and an injury, and make claims about why the injury violates the law. The defendant is required to "answer" the complaint as their first step. In that answer they have to either agree to, or dispute, all the facts you alleged. If there are facts in dispute, then you need a Jury to decide the facts by trial. Before, during, and after the trial the Judge makes

  • by suss ( 158993 ) on Friday February 02, 2018 @10:56PM (#56060179)

    Cloudflare is probably a massive NSA operation to track users across websites, including such things as intercepting their logins. It'll never be allowed to be taken down...

  • This case only has merit if net neutrality is not a thing.

    If net neutrality is abolished, then every service provider is liable for anything that passes though their system.

    Which do you choose?

    • If net neutrality is abolished, then every service provider is liable for anything that passes though their system.

      Ahem, totally different things.

      DMCA's Safe Harbor provision is what protects ISPs and CDNs from being liable for their customer's actions. DMCA is still quite in effect.

      Net Neutrality is about treating everyone's data the same as it moves across interconnected networks. IE: No paid prioritization.

      • Not quite: one of the implications of Net Neutrality is that ISPs are scanning packets, to determine their priority. That violates the Common Carrier laws, which grant immunity to entities such as the Post Office, for unknowingly transferring illegal items. The second a service starts opening any number - no matter how small - of the items it is transferring, then it becomes liable for any illegal items.

        I'm sure there could be a clever legal argument somehow claiming they were not liable, but that is dan

        • That's a pretty big stretch to say any form of packet analysis and paid priorization auto-cancels safe harbor provisions because they're supposedly 'looking.' Look, paid prioritization needs nothing more than source and dest from the packet headers, which every router your packet transverses has to look at. So saying this somehow negates safe harbor is, well, just silly.

          Deep packet inspection was (yes past tense) a bit of a gray area, but high adoption of HTTPS has rendered deep packet inspection dubiousl

  • They are a large part of what makes the net run as well as it does. Having responsibility of that much information is not feasible.
  • by Anonymous Coward

    This was inevitable, after Cloudflare removed their services from dailystormer. By demonstrating they discriminate on what content they protect, they assume a degree of responsibility for the benefits that content receives.

  • In addition, the CDN provider is accused of failing to implement a reasonable policy that will terminate repeat offenders.

    This is about all they have to prove to a judge. DMCA safe-harbor or not, if you're not trying to put a stop to copyright infringement, you lose your protection and are liable.

    The rest? Irrelevant.

    Going after the infringers? Waste of time and money, they don't have typically have anything and plus it's more involved to prove some individual did something, especially if Cloudflare resists giving out information. The objective is to get a nice fat payday. The end-users don't yield fat paydays. Also, sui

  • ALS Scan seems to have forgotten that Cs* like Cloudflare exist to reduce costs for publishers. Instead of CNN having to pay for the network traffic from their main server for every visitor to cnn.com, the site gets cached by Cs at strategic geographic locations around the world. Visitors can then get the content from their local cache, avoiding the extra bandwidth and expense of having to transmit that redundant data thousands or millions of times over the Internet backbone between the local cache and CN
    • Excellent point. Don't have mod points, this is best I can do.
    • No, if there is some adverse ruling instead of just randomly raising prices it is more likely that CDNs will alter their practices to comply with the law.

      It may just mean that they get less business. That will lead to increased competition, and that could have prices go down, potentially even below the cost of providing the service, while the companies fight over which ones will survive in the smaller market.

      You didn't do any analysis, you just did a knee-jerk that rehashed your biases.

  • by Anonymous Coward

    They started off scanning other peoples work without permission. Now they shoot their own porn but they've moved on to fucking over hard working affiliates who send their customers.

  • The holder is in no way liable for content UNLESS it is brought to his attention in a legal complaint.
    Publishers, QUIT FUCKING WHINING and do your damned job.
    A BOT can find this stuff you know!!

For God's sake, stop researching for a while and begin to think!

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