As has been noted before, it’s particularly hard for rightsholders to nail down exactly who to blame for copyright violations on the internet. There’s the obvious answer — the people who are actually committing the infringement — but they can be hard to actually track down and are typically just one of thousands doing similarly bad things, so stopping them doesn’t do much to solve the problem on a larger scale. And so many of those rightsholders go after those who serve as middlemen and women for the legion of copyright infringers, be they platforms or internet service providers or any other service that has some incidental role in the act, even without direct knowledge.
The most recent example of this involves Cloudflare, a company that offers website infrastructure and security, and a pair of wedding dress manufacturers. Per Ars Technica, Mon Cheri Bridals and Maggie Sottero Designs sued Cloudflare, claiming that the company contributed to copyright infringement committed by sites ripping off their designs by providing its services to said sites. Mon Cheri Bridals and Maggie Sotttero Designs claim that they tracked down the infringing sites and sent notices to Cloudflare for takedowns, but that their notices were ignored, and that Cloudflare continues to store and transmit those sites to visitors, furthering the infringement.
But the judge in the case disagreed, granting Cloudflare’s motion for summary judgment. In it, he concurred with the argument laid out by Cloudflare that the services provided to the infringing website didn’t constitute a “material contribution” to the infringement in question, nor do the services Cloudflare provides serve to amplify or magnify the reach and visibility of the sites. Cloudflare is not contributing to an essential part of the infringement itself with what it’s doing for those websites. If anything, it seems like Mon Cheri Bridals and Maggie Sottero Designs should be taking greater aim at the web hosting for those sites rather than Cloudflare, although it could be the case that such suits are in the offing.
While it does seem that the right result was reached in this case, you do have to feel sympathy for the dress manufacturers and other companies that are trying to take on copyright infringement on the internet. Chasing down offending sites must feel a bit like a game of whack-a-mole that doesn’t end when your quarter’s worth of time is up. In that context, it’s easy to understand how companies would go after any and every company involved in putting the website out there, even as those efforts might not jibe with what the law says about the liability of those businesses when it comes to infringement.