Report from Torrent Freak
In Brief – Cloudflare, a leading US-based online security service and content delivery network (CDN) provider, has been held legally liable in Japan for copyright infringement carried out by anonymous users of its platform. The ruling by Judge Aya Takahashi of the Tokyo District Court involved a 2022 lawsuit by four major manga publishers who argued that Cloudflare’s CDN policies allowed manga pirate site operators to remain anonymous and continue distributing copyrighted content with limited risk through Cloudflare’s CDN, and that the company repeatedly ignored copyright violation notices and failed to terminate accounts. Judge Takahashi largely agreed, finding that Cloudflare’s lack of identity verification and failure to intervene contributed to an environment enabling large-scale infringement, ordering Cloudflare to pay 500 million yen (approximately $3.2 million) in damages. Cloudflare maintains that as a delivery network, not a content hosting service, it should not be held responsible for infringing material stored elsewhere. The company says that it will appeal the ruling which it describes as inconsistent with the responsibilities of CDNs under the Digital Millennium Copyright Act (DMCA).
Context – The DMCA created the “notice and takedown” process for copyright infringements that imposes different duties on different types of internet services providers. Cloudflare’s view is that CDNs provide technological services that improve the performance of websites, but they do not host content and therefore cannot take infringing content down. When a copyright holder files a notice and takedown request, their practice is to forward it to the hosting services provider, and when provided with a court order to reveal the hosting provider, they may provide that information. Although US courts have not definitively ruled on the DMCA responsibilities of CDNs, the 2021 Mon Cheri Bridals case largely backed Cloudflare’s view that CDN providers are different from hosting providers and were not liable for contributory infringement. In other DMCA news, the Supreme Court heard oral arguments this week in Cox Communications v Sony, the biggest DMCA case of this term.