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

By Lore Apostol / October 8, 2021

Finally, some good news for Cloudflare - US court decided it's not liable for third-party copyright infringement and doesn't need to cut off the unlawful websites it serves. In a ruling in the US District Court for the Northern District of California that happened yesterday, Judge Vince Chhabria granted Cloudflare's motion for summary judgment.

Cloudflare is one of the largest CDN and DDoS protection services globally, so it makes sense that some of its clients are pirate sites. This is why back in 2018, it was sued for contributing to and aiding copyright infringement, facing trial at the California federal court against Mon Cheri Bridals and Maggie Sottero Designs.

The judge said that simply providing services to a copyright infringer does not qualify as a 'material contribution.' Rather, liability in the Internet context follows where a party 'facilitates access' to infringing websites in such a way that 'significantly magnifies' the underlying infringement.

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.

The plaintiffs claimed they sent Cloudflare thousands of takedown notices and that the service ignored them, taking no action against its clients' copyright-infringing websites. However, after the judge's ruling, they are found not guilty of enabling the knock-off selling websites that use Cloudflare and are not forced to do anything about them anymore.

As a response, the defendant said that the plaintiffs base their court trial on a "fundamental misunderstanding" of Cloudflare's services.

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.

Cloudflare also mentioned in court that a victory for the plaintiffs would amount to "an expansion of the contributory infringement doctrine far beyond its established limits."

For a better user experience we recommend using a more modern browser. We support the latest version of the following browsers: For a better user experience we recommend using the latest version of the following browsers: