George Mason University Antonin Scalia Law School

Another Huge Setback in CloudFlare’s Quixotic Campaign to Protect Pirate Sites

the word "copyright" typed on a computerLast August, I wrote about CloudFlare’s “desperate new strategy” to protect MP3Skull, a notorious pirate site that was sued by various recording companies for copyright infringement. CloudFlare offers content delivery networking, web optimization, and other performance services for websites. The plaintiffs easily obtained a permanent injunction against MP3Skull when it didn’t even bother to respond to the suit. However, that didn’t stop MP3Skull from opening up shop under several new top-level domains using CloudFlare’s services. When the plaintiffs sent a copy of the injunction to CloudFlare and asked it stop servicing the sites, CloudFlare put up a fight.

CloudFlare has a history of supporting pirate sites. After Grooveshark was found liable for willful copyright infringement and shut down, CloudFlare was there to lend a helping hand to the copycat sites that later sprung up. The plaintiffs obtained a restraining order against the new sites, and they asked CloudFlare to not provide them with services. CloudFlare balked at the suggestion, arguing in the district court that it was not in cahoots with the enjoined defendants. The district court held that, under Rule 65, CloudFlare was indeed bound by the injunction against the copycat sites. By providing the copycats with numerous services, CloudFlare was in “active concert or participation” with the defendants.

Just as CloudFlare took the low-road with Grooveshark, it again decided to stand up for adjudicated pirates with MP3Skull. Once confronted with the injunction against MP3Skull, CloudFlare tried a new strategy. Instead of arguing that it wasn’t acting in concert with the enjoined defendants, it argued that it couldn’t be enjoined because of the DMCA. In particular, CloudFlare contended that since Section 512(j) controls injunctions against internet service providers, and since that standard was not applied here, it was not bound by the injunction. As I mentioned in my last post, this argument is ridiculous for one simple reason: CloudFlare is not being enjoined.

This past Thursday, District Judge Marcia G. Cooke of the Southern District of Florida easily shredded CloudFlare’s silly and self-serving argument: “CloudFlare contends that Section 512 of the Copyright Act (‘Section 512’) guides how the Permanent Injunction applies to it, not Rule 65(d) of the Federal Rules of Civil Procedure. I disagree.”

Judge Cooke agreed with CloudFlare that “Section 512 outlines rules for copyright infringement-related injunctions involving online service providers[.]” But she disagreed that Section 512(j) has anything to do with whether CloudFlare was bound by the injunction against MP3Skull under Rule 65. She noted that Section 512 “does not blunt a court’s power to enforce a permanent injunction involving non-parties such as CloudFlare that may be ‘in active concert or participation’ with Defendants.” Indeed, Judge Cooke stated that “[e]very injunction . . . automatically forbids non-parties” from aiding and abetting enjoined defendants.

This is clearly the correct result. The standards that apply when enjoining a service provider under Sections 512 have no applicability to the general rule that it’s contemptuous to aid and abet a defendant that has already been enjoined. Again, CloudFlare was not the party enjoined—only MP3Skull was enjoined. And even though Section 512(j) would apply if CloudFlare were being enjoined, that’s irrelevant to the issue of whether CloudFlare, or any other non-party, is bound by the injunction against MP3Skull.

Despite this huge loss for CloudFlare, Judge Cooke left open the possibility that it could continue its mission to protect the MP3Skull defendants. Since the parties did not brief the issue of whether CloudFlare is in “active concert or participation” with the defendants, Judge Cooke found that due process requires her to give CloudFlare a chance to argue that it is not. Given its past conduct, it seems likely that CloudFlare will vigorously argue that the services it provides don’t actually help its customers to do anything. Of course, given the Grooveshark defeat on this same issue, I don’t think Judge Cooke will waste too many pages rejecting CloudFlare’s next desperate attempt to protect pirate sites.