Cloudflare has denied any role in the piracy, instead invoking the Shaggy defense: “ It wasn’t me.” Cloudflare claims that it does not materially contribute to the infringement-despite hosting and serving the infringing images-and that it should be allowed to continue providing services to infringing customers because end users could just get the images elsewhere.Ĭloudflare’s position on why it does not facilitate copyright infringement perhaps takes the cake in the have-your-cake-and-eat-it-too department. Mon Cheri sued Cloudflare for contributory copyright infringement, arguing that it is liable for knowingly continuing to host the infringing content. It then notified Cloudflare that its customers were using its service to infringe, but Cloudflare refused to remove the images from its cache servers. Mon Cheri went after counterfeiters using the images to sell inexpensive knockoffs, but copycat sites popped up in their place. The plaintiff, Mon Cheri, manufactures and sells premium wedding dresses to authorized resellers, and it promotes its brand by spending millions of dollars each year to develop images of its collections. However, a recent district court decision misconstrued the case law to conclude otherwise in Mon Cheri v. Under Ninth Circuit precedent, web hosting services like Cloudflare can be held contributorily liable for assisting in the infringement under the material contribution theory. It also raises important questions about Cloudflare’s liability for contributory copyright infringement when it knowingly allows infringing content to remain on its cache servers. This saves on bandwidth costs, improves security, and decreases page load times. When an end user requests content from one of Cloudflare’s customers, it is delivered to that user from the cached copy on the nearest Cloudflare server-not the customer’s own web host server. Cloudflare offers many services to its customers, including a content delivery network that utilizes hundreds of servers around the world to cache its customers’ content. One recurring thorn in the side of copyright owners is Cloudflare, the San Francisco-based web performance, optimization, and security company. “While it is certainly disappointing to see Cloudflare score a victory here against Mon Cheri in the district court, its position ultimately is wrong: There is no Ninth Circuit loophole that allows service providers to knowingly host and distribute infringing content without incurring contributory liability.”
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