Popular CDN and DDoS protection service Cloudflare has come under a lot of pressure from copyright holders in recent years.

The company offers its services to millions of sites, some of which offer access to copyright-infringing material.

Cloudflare prefers to remain a neutral service provider and doesn’t terminate clients based on DMCA notices. Instead, it forwards these to its customers, only taking action when it receives a court order.

Repeat Infringer Lawsuit

This stance is not appreciated by all rightsholders and in 2018 the service was taken to court over the issue. The case wasn’t filed by major entertainment companies, but by two manufacturers and wholesalers of wedding dresses. Not a typical “piracy” lawsuit, but it’s a copyright case that could have broad implications.

In a complaint filed at a federal court in California , Mon Cheri Bridals and Maggie Sottero Designs argued that even after multiple warnings, Cloudflare fails to terminate sites operated by counterfeit vendors. This makes Cloudflare liable for the associated copyright infringements, they said.

Cloudflare disagreed and both sides are now conducting discovery to collect evidence for an eventual trial. Among other things, the wedding dress manufacturers were asked to hand over detailed sales records. In addition, the CDN provider is also interested in the companies’ DMCA takedown partner XMLShop LLC.

Cloudflare Wants DMCA Takedown Evidence

Over the past few months, Cloudflare has tried to get further information on how XMLShop, which is also known as Counterfeit Technology , collects evidence for its takedown notices.

These takedowns play a central role in the lawsuit and XMLShop and its employees could provide crucial information. Thus far, however, Cloudflare hasn’t been able to get what it wants.

To resolve this issue, Cloudflare submitted a motion asking the court to compel the DMCA takedown company to comply with its requests for information. According to their filing, the company may be holding back important evidence.

“Plaintiffs and XMLShop, who use the same counsel, appear to be using XMLShop’s status strategically as a ‘non-party’ to conceal relevant documents from Cloudflare. The Court should reject their gamesmanship,” Cloudflare informed the court.

After serving two subpoenas, the takedown company only produced one document, Cloudflare notes. Meanwhile, the publicly available information on the company is highly confusing or even misleading.

Who Works at XMLShop?

For example, Cloudflare would like to question XMLShop’s employees, but the company hasn’t handed over an employee directory or payroll log that would reveal who works at the company.

“XMLShop has not been forthright about its operations, leaving Cloudflare in the dark as to who else may be a witness with relevant knowledge,” Cloudflare writes.

According to XMLShop’s attorney, the company only has one employee named Suren Ter-Saakov, but this claim is contradicted by its own website and Linkedin.

“XMLShop’s own public statements contradict its counsel’s statement. Its website boasts ‘a big team of professionals working in three offices, located in Ukraine, the United States, and Dominican Republic.

“And a LinkedIn profile for an individual named Blair Hearnsberger represents that she or he is the CEO at Counterfeit Technology,” Cloudflare adds.

Fake Profile

According to the takedown company’s attorney, this profile is fake and Blair Hearnsberger does not actually exist, but Cloudflare is not convinced. Therefore, it hopes that the court will compel XMLShop to verify who works at the company and in what roles.

In addition to finding information on possible employees, Cloudflare also requests further information on the software that Counterfeit Technology used to find infringing content.

Special Takedown Bots?

The wedding dress manufacturers claimed that their takedown partner “scours the internet with special bots designed to locate and identify the unauthorized use” but it’s unclear how this technology works.

Cloudflare would like to assess the software to see how accurate it is, especially since the company states that it spends only 10 seconds sending notifications of claimed infringement to all traffic sources.

“Its use — and the reliability — of that technology is at least relevant to the predicate allegations of direct infringement it asserts. It is also relevant to Cloudflare’s contention that it never received any notifications of claimed infringement from Counterfeit Technology that were valid,” Cloudflare writes.

The CDN provider asked the court to compel XMLShop to produce the subpoenaed documents. In addition, XMLShop should be held in contempt for failing to obey the subpoena and ordered to pay the legal costs Cloudflare incurred to submit the motion.

This week, XMLShop responded to the request stating that it has already produced everything it could. It views the remaining requests as incredibly broad, since these ask for “sensitive” trade secret information. It is now up to the court to make a final decision.

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A copy of Cloudflare’s memorandum in support of its motion to compel XLMshop to comply with the subpoena is available here (pdf).

From: TF , for the latest news on copyright battles, piracy and more.

Internet provider Charter Communications is one of several companies being sued for turning a blind eye to pirating subscribers .

The cases, filed by dozens of major record labels and music companies, allege that Internet providers fail to terminate accounts of repeat infringers.

Stakes Are High

These lawsuits are serious business. In 2019, for example, a jury found Cox liable for the infringements of its customers, awarding a billion dollars in damages to several record labels. This decision was confirmed recently but will be appealed.

With the stakes this high, the lawsuit against Charter is being fought tooth and nail by both sides. The ISP has already fought back, arguing that the record label’s takedown notices were abusive and misleading. That effort failed and meanwhile, tensions remain high.

With the trial getting closer the focus has shifted on the core accusations. Over the past two weeks, that resulted in an interesting standoff over P2P piracy including BitTorrent, and whether that is still a problem for the music industry.

P2P is No Longer a Problem

The origin of this issue dates back to a hearing last year over a discovery request from Charter. The ISP requested revenue details from the music companies, with a specific interest in streaming income in recent years.

According to Charter’s attorney Erin Ranahan, this information would be relevant to determine the scale of potential damages, if the ISP is found liable. When P2P piracy is no longer a big issue, the amount could be lower from a deterrence perspective.

While making this argument, the attorney stated that P2P piracy is indeed no longer an issue. Not just that, with help from ISPs the music companies now make lots of money from streaming.

“And just to give you some background, the snippet of time in which this case involves, because of the total length in the claim period, is a time when this P2P issue was at its most pronounced. Today it’s no longer a problem,” Ranahan said.

“Today plaintiffs’ clients are making a ton of money off of the Internet streaming capabilities […]. Charter’s Internet is actually giving them a vehicle by which they make a huge amount of money.”

Music Companies Demand P2P Evidence

This argument wasn’t well-received by the music companies. While other piracy threats may be more prevalent than P2P piracy, they still see it as a major problem.

To back this up with data, the companies sent a series of new requests to Charter asking for information. They want to show that P2P piracy is still a problem and that Charter financially benefits from this infringing activity.

Among other things, Charter was asked to share extensive logs of infringement notices, internal discussions about copyright infringement, as well as monthly revenue statements linked to alleged pirates.

The music companies argue that they need this information to rebut Charter’s claim that P2P piracy is no longer a problem. The ISP could use this claim as a defense during the trial, they fear.

Request Denied, For Now

Charter refused to provide the information and pointed out that the court already denied a similar request in the past. During a hearing two weeks ago, the Special Master agreed with the ISP and denied discovery.

The record labels are not letting the issue go that easily though. This week they were back in court, objecting to the denial. They note that the current request is not related to earlier queries, but is specifically tailored to address the P2P problem comment, which is ‘new’.

“Plaintiffs should be permitted this limited discovery to rebut Charter’s argument that peer-to-peer piracy is no longer a phenomenon to which Charter contributes and which contribution must be deterred,” they argue, hoping to reverse the earlier denial.

The request was submitted a few days ago and the Colorado federal court has yet to decide whether it will reconsider its position or not.

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A copy of the music companies’ objection to the Special Master’s order denying discovery is available here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

Back in 2016, Grammy award-winning musician Maria Schneider launched a scathing attack on YouTube, accusing the platform of “criminal rackeetering”.

According to Schneider, YouTube has “thoroughly twisted, contorted, and abused the original meaning of the outdated DMCA ‘safe harbor’ to create a massive income redistribution scheme.”

Last summer it became clear that Schneider’s opinions had not changed when her name appeared as a plaintiff in a class-action lawsuit filed against YouTube.

As previously reported, Schneider is joined by a company called Pirate Monitor in the suit and together they accuse YouTube of being massively deficient in its copyright enforcement measures, including by denying smaller artists access to its takedown tools (Content ID), failing to terminate repeat infringers, while profiting from piracy.

YouTube Accuses Plaintiff of Fraud

Last September, YouTube fought back by alleging that agents of Pirate Monitor opened bogus YouTube accounts to upload its own videos and then filed takedown notices against the same content claiming that its rights had been infringed.

According to YouTube, this was a ploy to gain access to Content ID after the company was previously denied access for having no track record of properly using the DMCA takedown process. This new and fraudulent approach only supported its earlier decision to deny access to the Content ID tool, YouTube said.

In November, the plaintiffs fought back, stating that YouTube had failed to provide any evidence to back up its allegations. But a month later, YouTube told the court that the same IP address used to upload allegedly-infringing content was also used to file DMCA notices to take it down.

Plaintiffs and Defendants Are Digging In

A case management statement published this week reveals that little progress has been made in respect of bringing the parties closer together.

The plaintiffs, on behalf of themselves and the Class, repeat their claims that “millions” of copyright works have been distributed via YouTube in breach of copyright while alleging that they have no “viable means” of enforcing their rights other than via manual searches and takedown notices.

Furthermore, since YouTube only implements its repeat infringer policies for non-Content ID identifications, the plaintiffs argue that the video platform cannot claim safe harbor protection under the DMCA. For its part, Youtube says this is an attempt to relitigate its earlier copyright battle with Viacom, which found that YouTube is entitled to safe harbor protections.

“No law supports Plaintiffs’ assertion that denying them access to [Content ID] somehow makes YouTube liable for copyright infringement,” the video platform adds, noting that Schneider already has access anyway.

“Plaintiff Schneider already has access to Content ID through her publishing agent, who has used Content ID for years on Schneider’s behalf,” YouTube adds.

But there are more fundamental issues too.

Zero Copyright Infringement Alleged in Complaint

According to YouTube, Schneider has named just three copyrighted “works in suit” and Pirate Monitor has identified three too. However, neither has identified any infringement.

“[T]he Complaint failed to allege a single instance of infringement for even one of the six copyrighted works. That alone renders the claims deficient. Beyond that, Pirate Monitor recently admitted — five months into the case — that it does not have standing to assert infringement of one of the three works it asserted in the Complaint.”

YouTube says that Schneider did list around 50 new works that weren’t mentioned in the complaint during interrogatory responses but failed to allege ownership or registration. But there are other problems too.

“Schneider has failed to identify a single alleged infringement for approximately half of the new works, and the instances of alleged infringement she did identify all fall outside the three-year statute of limitations. Further, it now appears clear that Schneider’s publishing agent licensed YouTube to use all of Schneider’s musical works, which would independently defeat any infringement claim,” YouTube adds.

Class Action Unsuited to Copyright Disputes

Given the complexity of copyright infringement cases, YouTube says that the plaintiff’s suit will not be maintainable as a class action. Referencing an earlier failed attempt by the Premier League, YouTube describes the current litigation as a “Frankenstein monster posing as a class action.”

Evidence Preservation

According to Schneider and Pirate Monitor, YouTube isn’t taking its evidence preservation responsibilities seriously having rejected some of their demands. The plaintiffs say that YouTube is refusing to preserve videos that are deleted by users, even if they infringe their rights, demanding that the plaintiffs need to identify each one first.

“Defendants have also repeatedly taken the position that they will not preserve any evidence relating to the putative class in this case,” they add, a reference to entities that are not yet part of the class action – which could be almost any rightsholder.

Somewhat predictably given the scope of the plaintiffs’ demands, YouTube insists that it is preserving evidence but can only do so when the plaintiffs identify those works, noting that it does not have to guess at what that content should be. Also, when considering that almost any copyright holder could join the class action at a later point, effectively asking YouTube not to delete anything is a step too far.

“[P]laintiffs have made the extraordinary and unreasonable demand that YouTube preserve all ‘material and content’ uploaded to YouTube, notwithstanding users’ ordinary rights to delete their own data, simply because Plaintiffs have brought this case as a putative class action,” YouTube writes.

“They have cited no authority requiring anything like that, which would inflict huge costs and burdens on YouTube — essentially redesigning YouTube’s entire data retention system in violation of user privacy rights and at a cost of hundreds of hours of engineering time and millions of dollars — that are disproportionate to the legitimate needs of a case in which there are only two named plaintiffs asserting, at most, a small number of copyrighted works, and who have very low prospects of ever certifying a class.”

The case has been scheduled for trial starting November 28, 2022, but whether it will ever get there remains a question. The only certainty at the moment is that the parties couldn’t be any further apart in their positions and neither is showing any signs of giving an inch.

The joint case management statement can be found here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

Spearheaded by the RIAA, several major music industry companies have filed lawsuits against some of the largest U.S. Internet providers.

The music companies accuse these providers of failing to terminate accounts of the most egregious pirates, thus ignoring millions of copyright infringement notices.

The liability lawsuits are seen as a major threat to the ISP industry, as multiple companies face hundreds of millions of dollars in potential damages. This is not just a hypothetical threat, as the $1 billion verdict against Cox has shown.

In response to these lawsuits, several ISPs have submitted counterclaims, scrutinizing the copyright infringement notices. Internet provider RCN did the same and also targeted the RIAA and anti-piracy company Rightscorp in its response.

Rightscorp’s notices, which often included a settlement offer, are used as evidence in music industry lawsuits. However, RCN believes that some of these notices were fraudulent. Making matters worse, Rightscorp allegedly destroyed evidence which makes it hard to verify the claims.

Last month Rightscorp filed a motion to dismiss the complaint, stating that RCN failed to state a claim under California Unfair Competition Law (UCL). Last week, the ISP countered, noting that there are plenty of reasons to continue the case.

“Over the past ten years, Counterclaim Defendant Rightscorp, Inc. has made millions of accusations of copyright infringement against users of RCN’s internet service,” RCN informed the court.

“Rightscorp does this for profit — it sends notices of copyright infringement in the hopes of extracting settlements from accused infringers, and Plaintiffs pay Rightscorp to generate these notices to pressure ISPs like RCN into terminating the internet access of accused infringers.”

Sending copyright infringement notices by itself is not ‘fraudulent’ nor is it by definition ‘unfair.’ However, RNC argues that these descriptions fit the bill here, since Rightscorp destroyed the underlying evidence.

In addition, Rightscorp allegedly refused to digitally sign its emails, so RCN could verify their legitimacy. The latter is a warranted concern, as imposters have previously sent fake settlement requests.

The lack of evidence is a serious problem, RCN notes. The company believes that Rightscorp, among other things, knowingly configured its system in a way that would result in false positives. However, with all underlying evidence destroyed this can’t be checked.

As part of its defense, Rightscorp countered that RCN wasn’t ‘injured’ by the piracy notices but the ISP disagrees. It notes that it incurred substantial costs in order to handle the millions of notices the anti-piracy company sent.

It is now up to the New Jersey District Court to decide whether the motion to dismiss should be granted or not. Meanwhile, however, there appear to be some problems at Rightscorp’s end.

Over the past few days, we have been unable to reach the site, and the last Google cache version dates back two weeks ago. TorrentFreak reached out to Rightscorp to check if this is a temporary issue, but we have yet to hear back.

Website or no website, RCN hopes that the case will continue. Ideally, they want the court to grant an injunction that requires Rightscorp to properly sign its emails and preserve all the important evidence.

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A copy of Rightscorp’s motion to dismiss is available here (pdf) and RCN’s reply can be found here (pdf) .

From: TF , for the latest news on copyright battles, piracy and more.

Earlier this year Texas-based model Deniece Waidhofer sued Thothub for copyright infringement after the site’s users posted many of her ‘exclusive’ photos.

While Cloudflare isn’t new to copyright infringement allegations, this case has proven to be more than a nuisance. The company previously countered the claims with a motion to dismiss, but Waidhofer and her legal team are not backing off.

In an amended complaint some of the most egregious allegations, including the RICO conspiracy, were dropped. However, the copyright infringement claims remain and with two new cosplay models joining the action, the list of defendants has grown.

Last week Cloudflare responded to these new allegations, again denying any wrongdoing. In addition, the company filed a separate motion for sanctions a few days earlier, accusing the defendants of fabricating a fatally flawed theory of contributory copyright infringement.

The issue revolves around Cloudflare’s “ Argo Tunnel ” service, which allows website operators to secure their systems from outside attacks. Put simply, it does so by routing all traffic to a site through Cloudflare’s network via an encrypted tunnel.

The models argue that Thothub used this Argo Tunnel and that the CDN provider could have shut the site down by disabling this service. That would counter Cloudflare’s defense that terminating Thothub’s account would have had a limited impact.

Cloudflare informs the court that the Argo Tunnel wasn’t created to help pirates, but to better secure the sites of its users. Not just that, it notes that Thothub never used this service.

“[I]t is clear that Argo Tunnel is a cyber security product of general applicability, created for and used by thousands of users,” the company writes.

“And fatal to Plaintiffs’ claims, Argo Tunnel was never used by the Thothub.tv website or any of its subdomains, which were the alleged source of the direct infringement.”

Cloudflare repeatedly told the defense attorneys that Thothub didn’t use the Argo Tunnel and warned of potential sanctions, but the claims were added nonetheless.

This went a step too far for the CDN provider which is now asking the court to sanction the defendants and their attorneys for failing to conduct a reasonable investigation.

In addition, they should be sanctioned for “knowingly or recklessly maintaining false and frivolous allegations for the improper purpose of harassing Cloudflare with overbroad copyright infringement claims,” the company writes.

Perhaps unsurprisingly, the models and their legal team aren’t happy with the accusations and swiftly fired back this week.

Turning the tables, their detailed reply accuses Cloudflare’s attorneys of failing to conduct a reasonable investigation and failing to provide evidence. For this conduct, Cloudflare’s lawyers should be sanctioned.

“Cloudflare’s counsel’s baseless and insulting accusations impugning Plaintiffs’ counsel’s integrity and professionalism, simply because Cloudflare and its counsel baldly assert the Argo Tunnel allegations are false,” they counter.

“Because the Motion is frivolous and apparently lodged for an improper purpose to circumvent discovery, obtain privileged information, drive up litigation costs, and delay, distract, harass, and intimidate Plaintiffs, it should be denied and Cloudflare should be sanctioned.”

The plaintiffs also provide further information that is supposed to substantiate their claims. Relying on an investigation from a technical expert, who previously worked at Akamai, they conclude that it’s reasonable to believe that Thothub indeed used the Argo Tunnel.

Part of this evidence is based on the “Error 1003 Access Denied: Direct IP Access Denied” message that appeared when accessing one of the site’s Cloudflare IP-addresses.

“Based on independent research, Mr. Bell learned that this error message indicated that the site could be using an Argo Tunnel,” the models’ lawyer writes.

While that may be true, it’s no guarantee. The same error message also appears when one tries to access TorrentFreak.com’s Cloudflare IP-address, and we don’t use the Argo Tunnel.

In addition, the plaintiffs allege that Thothub used server port 8443, arguing that this is “often” used to implement an Argo Tunnel.

At the end of the day, both parties are calling for sanctions over unsubstantiated claims. Cloudflare wants the frivolous Argo Tunnel claims removed from the complaint, while the models seek to punish Cloudflare for its frivolous call for sanctions.

It is now up to the court to decide if any sanctions are indeed needed, but it’s clear that this case is proving to be quite the handful.

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Cloudflare’s motion for sanctions is available here and the models’ motion can be found here

From: TF , for the latest news on copyright battles, piracy and more.

Under US copyright law, Internet providers must terminate the accounts of repeat infringers “in appropriate circumstances.”

In the past such drastic action was rare, but with the backing of legal pressure, ISPs are increasingly being held to this standard.

Repeat Infringer Lawsuits

Several major music industry companies including Artista Records, Sony Music Entertainment, Universal Music, and Warner Records, have filed lawsuits against some of the largest U.S. Internet providers. This also includes Bright House , which is owned by Charter.

Through this lawsuit , the music companies hope to win hundreds of millions of dollars in damages. While that may sound high, last year a federal jury handed down a billion-dollar award in a lawsuit against Cox Communications.

False DMCA Notices Counterclaim

Bright House would like to avoid this fate at all costs. In a countersuit, filed in July, the ISP hit back accusing the record labels of sending inaccurate and deceptive takedown notices. This is in violation of the DMCA as well as the Florida Deceptive and Unfair Trade Practices Act, the company argued.

A month later, the Internet provider asked the court for permission to add the RIAA and its anti-piracy partner MarkMonitor to the suit, as they are central to the wrongful conduct.

The record labels were not happy with these accusations and asked the court to dismiss the claims. While it’s possible that some incorrect notices were sent, they argued that Bright House has no standing as the company failed to take any action based on their notices.

No Disconnections, No Harm

This defense points back to the basis of the “repeat infringer” issue. The labels sued the ISP because it didn’t disconnect persistent pirates. So if there were false notices, there was no real harm done.

After hearing both sides, US District Court Judge Mary Scriven decided over the matter this week, clearly siding with the record labels.

“Bright House alleges that Plaintiffs violated Section 512(f) of the DMCA by sending knowingly false infringement notices. This counterclaim fails as a matter of law because Bright House does not allege that it removed or disabled access to any allegedly infringing content in response to the notices.”

Judge Scriven notes that this case is similar to the one Charter filed against several record labels. That case was dismissed as well a few weeks ago, as Charter didn’t show that it disconnected subscribers based on false DMCA notices.

False Notices Claim Dismissed

“Bright House’s counterclaim suffers from the same fatal flaw and is therefore due to be dismissed,” the District Court Judge writes.

The ISP’s second claim, that the labels violated the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) fails as well, according to the court.

A proper FDUTPA claim requires Bright House to argue that the false notices were sent as part of “trade or commerce,” which generally involves advertising or offering services, property, or something else of value. That’s not the case here, Judge Scriven notes.

FDUTPA Claim Fails As Well

“The FDUTPA claim is defective because the infringement notices do not constitute ‘advertising, soliciting, providing, offering, or distributing’ any ‘thing of value’ to Bright House, its subscribers, or any other party.

“Plaintiffs sent the infringement notices as part of an alleged effort to enforce their legal rights in recordings and compositions they claimed to own,” Judge Scriven writes.

This means that both counterclaims are dismissed. Bright House also put in a separate request to enforce the same claims against the RIAA and its anti-piracy partner RightCorp, but this is futile now that the underlying arguments don’t hold up.

The case will now continue to trial without any counterclaims. Bright House will still have to defend itself against the repeat infringer claims and copyright infringement allegations.

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A copy of US District Court Judge Mary Scriven’s order is available here (pdf)

From: TF , for the latest news on copyright battles, piracy and more. We have some good VPN deals here for the holidays.

Earlier this year Texas-based model Deniece Waidhofer sued Thothub for copyright infringement after the site’s users posted many of her ‘exclusive’ photos.

Soon after the complaint was filed Thothub went offline . This prompted Waidhofer to shift priorities.

In an amended complaint, submitted a few weeks ago, Thothub is no longer a defendant. Instead, the lawsuit now focuses on several sites and services that did business with the pirate site, including CDN provider Cloudflare.

Cosplay Models Join Case Against Cloudflare

Another significant change is that Waidhofer is no longer the sole plaintiff. She is now joined by two cosplay artists, Ryuu Lavitz and Margaret McGhee, better known as OMGcosplay . Together, these models have millions of online followers.

When the original case was filed, Lavitz and McGhee hadn’t registered their photos at the Copyright Office. Both submitted their registrations for hundreds of works in September, after which they were able to join the case.

In addition to removing Thothub as a defendant and adding two plaintiffs, some of the strongest allegations were stripped from the original complaint. Cloudflare is no longer alleged to be part of a RICO conspiracy but is accused of direct and contributory copyright infringement.

The models claim that Cloudflare has carved out a competitive niche by serving illegal pirate sites that other large CDN companies like Akamai Technologies would not. It ‘helps’ these sites by concealing the real IP-address and by ‘storing’ their content, it’s alleged.

Motion to Dismiss

Cloudflare replied to these allegations by pointing out that it’s merely a middleman. The company has no knowledge of the traffic that passes through its network and doesn’t store content permanently, in most cases, but simply makes temporary “cache” copies.

“Under Plaintiffs’ wildly expansive theory of liability, the owner of any computer connected to the Internet could potentially be exposed to unlimited liability,” Cloudflare argued, adding that the complaint doesn’t show bad “intent”.

Based on these and various other deficiencies, the CDN provider asked the court to dismiss the case. However, the models disagree and recently submitted several counterarguments.

‘Cloudflare Helps Pirate Sites’

The models argue that Cloudflare was aware of the copyright infringements on Thothub, but chose not to do anything. Instead, it helped the site to cope with vast amounts of traffic so it could stay online. That’s what the site does for other pirate sites as well.

“Cloudflare easily could have limited Thothub’s infringement simply by terminating service, or by not delivering URLs that it had already been notified contained infringing content. But Cloudflare stood behind Thothub instead, as it does regularly for pirates everywhere. Indeed, Cloudflare has made a cottage industry out of indulging pirates.”

The plaintiffs say that Cloudflare is liable for contributory copyright infringement. The company’s decision not to take action helped Thothub to stay online and operate more efficiently. That is enough to be held liable, the models argue, referencing the ALS Scan case against Cloudflare.

“Cloudflare enabled Thothub to be operated securely on a vast scale. The law recognizes this as a material contribution that, with knowledge, creates liability,” they write.

Thothub Alternatives Still use Cloudflare

Without Cloudflare, Thothub’s site would have been “overrun and crashed.” Although it may have come back, that ‘simple measure’ would have made a difference, at least briefly. Cloudflare, however, decided not to act and it does the same for many similar sites today.

“The Complaint identifies nearly two dozen other pirate sites — all Cloudflare clients — that are Thothub copycats, including one called Thothub.ru that is nearly a direct clone,” the plaintiffs write.

In addition to contributory infringement, the models also accuse the company of direct infringement. They argue that the CDN provider made copies of Thothub files on its own accord and continued copying works after takedown notices were sent.

The reply to Cloudflare’s motion to dismiss is filled with allegations that will eventually have to be backed up with evidence. In addition to focusing on the case at hand, it also references an EU report which concluded that 62% of the world’s top 500 pirate sites use Cloudflare.

Daily Stormer and 8Chan

And, as we predicted a few years ago , Cloudflare’s decision to ban The Daily Stormer is also being brought up.

“Despite serving most of the world’s top pirate sites, on information and belief, Cloudflare has never voluntarily terminated services to a customer for repeat copyright infringement. Cloudflare has, however, voluntarily terminated services for other customer sites, including the American Neo-Nazi group Daily Stormer and the conspiracy website 8chan,” the reply reads.

It is now up to the US District Court for the Central District of California to decide whether the case against Cloudflare should be dismissed, or if the models can pursue their claims at trial.

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A copy of Cloudflare’s motion to dismiss the first amended complaint is available here (pdf) and the reply from the models can be found here (pdf)

From: TF , for the latest news on copyright battles, piracy and more. We have some good VPN deals here for the holidays.