·  by Mike Godwin

Don’t cast CloudFlare as copyright/trademark enforcer

Originally Posted On: R Street

You may be used to thinking of the Internet as being built of:

  1.  Services that directly connect you to the Internet;
  2. Services that offer their own content to the Internet; and
  3. Services that host your content (or someone else’s) on the Internet.

But of course, today’s Internet ecology is more complicated than that. A “content delivery network” (CDN) service like CloudFlare, which offers a specific combination of services that both speeds up its clients’ websites and makes them more secure, doesn’t fall neatly into any of those three broad categories.

What CloudFlare absolutely doesn’t do is host other people’s content, filter anybody’s content or block other people’s websites. Yet a federal court has insisted that CloudFlare must now act as a censor of alleged infringers of a particular trademark: something a service like CloudFlare is not designed to do and shouldn’t be ordered to do.

The underlying federal case, Arista Records et al. v. Vita Tkach, didn’t even include CloudFlare as a defendant at the outset. Although the record-company plaintiffs in the case generally take an expansive view of who qualifies as an infringer of its intellectual property, they never argued that CloudFlare was an infringer. Their original case, a copyright case, was brought against a defendant called Grooveshark which, when it settled the case, turned over the “Grooveshark” trademarks to the record companies.

So how did CloudFlare, which was named TechCrunch’s “Best Enterprise Startup” this year, find itself in the plaintiffs’ crosshairs? Good question! It turns out that copycat websites using the word “Grooveshark” appeared quickly in the aftermath of the Grooveshark settlement. It’s been a sort of trademark-law variant of the Streisand Effect. At that point, the record companies responded by obtaining a court order—now available here, though it was issued in secret—compelling CloudFlare to actively filter for and block these wannabe Grooveshark clones.

Once it received the order, CloudFlare felt compelled, rightfully, to argue that the implications of the order would burden not only CloudFlare, but also any infrastructure service provider (think AT&T or Comcast) to act as an intellectual-property enforcer. Remember that CloudFlare is not itself a content provider, trademark infringer or copyright infringer. The startup simply speeds up secure access to its clients’ websites (even offering a basic speedup plan for free).

Late last week, CloudFlare (and the Electronic Frontier Foundation, arguing on CloudFlare’s behalf) filed a motion asking the court to modify its order to exclude CloudFlare, which the motion underscores is a “non-party” in the underlying case. The principle here is bigger than the question of whether CloudFlare itself should be subject to a court order as a “non-party.” The question is whether infrastructure services, at any level, should be converted by court order into proactive enforcers of copyright and trademark.

Under American law, the answer to this question generally has been “no.” Both the Digital Millennium Copyright Act (for copyright) and Section 230 (for everything else) created frameworks that limit secondary liability for Internet service providers, ranging from Comcast and Verizon to website and blog-hosting services…and, ideally, to companies like CloudFlare and Akamai, whose services making the Internet faster and more responsive.

These two legal frameworks have given rise to today’s Internet. They are what has made it economically viable for providers to offer access (or speed that access) to Internet services without automatically becoming legally responsible for unlawful content from or conduct by those services. Any court order that turns this legal balance on its head deserves to be challenged, both in federal court and in the court of public opinion. Let’s hope CloudFlare ultimately prevails in both courts.