October 26, 2021

Volume XI, Number 299

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October 26, 2021

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October 25, 2021

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Cloudflare’s Silver Lining: It Is Not Contributorily Liable for Copyright Infringement

The Northern District of California rejected claims that web optimization provider Cloudflare Inc. was liable for contributory copyright infringement related to the dissemination of infringing photographs by its customers.

Plaintiff Mon Cheri Bridals, LLC designs and manufactures wedding dresses and women’s social occasion apparel. Critical to Mon Cheri’s marketing are the photoshoots it stages every season to showcase its new designs. Mon Cheri’s photos are published on its website and made available to its authorized retailers. Over the last several years, however, numerous pirate websites have stolen Mon Cheri’s images and used them on unaffiliated e-commerce websites to sell counterfeit dresses. 

Defendant Cloudflare provides website optimization services, which both protect against attacks and make its customers’ websites more efficient by reducing the distance data must travel. Most relevantly, its content delivery network (“CDN”) and reverse proxy services act as a security buffer and performance enhancer. Cloudflare substitutes its own numerical Internet Protocol (IP) address for the underlying web host’s IP address and scans for potential threats as requests are made. If none are found, the domain then resolves to the IP address of the requested hosting company. Crucially, though Cloudflare “caches” (i.e., temporarily stores) materials such as website images that users frequently request, it does not host its customers’ websites. But because its services mask the identity of the actual website host, those seeking to prevent online copyright infringement by attempting to disable the hosting service must first go through Cloudflare. 

Mon Cheri claimed it had identified more than 400 Cloudflare client websites that used its images without permission and had submitted thousands of infringement notices to Cloudflare. Though Cloudflare forwarded these notices to the underlying website hosts and revealed the hosts’ identities to Mon Cheri, Cloudflare did not terminate its services to most of these customers. Mon Cheri sued Cloudflare, alleging contributory copyright infringement.

A party may contributorily liable where it: “(1) has knowledge of another’s infringement and (2) either (a) materially contributes to or (b) induces that infringement.” Mon Cheri alleged that Cloudflare’s performance-improvement services (including its CDN and caching capabilities) improved the quality of the infringers’ webpages, speeding up the delivery of infringing content. Also, its security services inserted Cloudflare between the requesting user and the host of the infringing content, impeding Mon Cheri’s ability to enforce its copyrights. Both parties moved for summary judgment. In denying Mon Cheri’s motion and granting Cloudflare’s, the court held Mon Cheri had not presented evidence sufficient to show that Cloudflare’s services materially contributed to the underlying copyright infringement. 

According to the court, Mon Cheri offered no evidence that Cloudflare’s performance-improvement services (especially faster load times) would lead to significantly more infringement than would occur without Cloudflare. Critically, if Cloudflare removed the infringing material from its cache, the copyrighted images would still be visible to the user. Unless the images were removed from the actual hosting service, direct infringement would not be prevented. Thus, the court held, no reasonable jury could find that Cloudflare’s activities materially contributed to the underlying infringement because its services neither “significantly magnif[ied]” it, nor were an “essential step in the infringement process.”

Similarly, Cloudflare’s security services did not materially contribute to the underlying infringement because they had no effect on a user trying to access the infringing images.  

The case is Mon Cheri Bridals, LLC v. Cloudflare, Inc., No. 3:19-cv-01356-VC (N.D. Cal. Oct. 6, 2021).

© 2021 Finnegan, Henderson, Farabow, Garrett & Dunner, LLPNational Law Review, Volume XI, Number 285
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About this Author

Jonathan Uffelman Trademark, Domain Name, Internet Intellectual Property Attorney Finnegan, Henderson, Farabow, Garrett & Dunner, Law Firm
Domain Name Specialist

Jonathan Uffelman practices trademark, domain name, and Internet law. In particular, he works on a broad range of Internet and cyber law issues, including on-line brand enforcement and the Uniform Domain-Name Dispute Resolution Policy (UDRP) proceedings. Jonathan was the 2015 Burton Award Winner for Distinguished Legal Writing.

Jonathan handles a variety of on-line brand enforcement issues including gray-market goods, trademark and copyright infringement, and cybersquatting. He has successfully handled numerous UDRP cases on both the complainant...

202 408 4328
Margaret A. Esquenet Copyright & Trademark Attorney Finnegan, Henderson, Farabow, Garrett & Dunner Washington, DC
Partner

Focusing on U.S. and global copyright, advertising, and trademark law, Margaret Esquenet brings a holistic, business-first approach to legal issues. Advising clients across industries—from consumer goods and media companies to tech firms and pharmaceutical manufacturers—she provides legal counsel across all media, in all facets of branding, advertising, and marketing. 

In addition to an active licensing and counseling practice, Margaret serves as first chair in federal, state, and administrative TTAB litigations, both advocating for clients’ creative efforts and defending them...

202-408-4007
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