Cloudflare Not Liable for Its Users’ Copyright Infringement, Court Rules

Mon Cheri Bridals and Maggie Sottero Designs sell wedding dresses online. But their sales numbers and brand reputations are damaged by the proliferation of counterfeit retailers that sell knock-off dresses using the plaintiffs’ copyrighted images. The plaintiffs have gone after the infringers in a range of actions, but to no avail—every time a website is successfully shut down, a new one takes its place. In an effort to more effectively stamp out infringement, the plaintiffs now go after a service common to many of the infringers: Cloudflare. The plaintiffs claim that Cloudflare contributes to the underlying copyright infringement by providing infringers with caching, content delivery, and security services. Because a reasonable jury could not—at least on this record—conclude that Cloudflare materially contributes to the underlying copyright infringement, the plaintiffs’ motion for summary judgment is denied and Cloudflare’s motion for summary judgment is granted.

Plaintiffs brought this lawsuit based on a fundamental misunderstanding of Cloudflare’s services, the contributory copyright infringement doctrine, and the Digital Millennium Copyright Act, all in pursuit of a statutory damages windfall that has nothing to do with the harm they claim to have suffered. [...] Whereas Cloudflare’s services protect against malicious attacks and at most confer a split-second advantage to the loading time of a website someone is already visiting, the services previously considered by the Ninth Circuit actually helped visitors find infringing material they otherwise never would have found. There also is no “simple measure” that Cloudflare failed to take to prevent further infringements in this case. Unlike hosting providers, Cloudflare could not remove allegedly infringing material from the Internet, and there is no question that those images would have remained available and equally accessible on the accused websites without Cloudflare’s services.