Vondran Legal® Anti-piracy Updates: Site Blocking Orders and DMCA 512(H) Subpoenas to Cloudflare to Identify Infringers of Websites, Streaming Services and Torrent Sites.

WHO IS CLOUDFLARE?

According to their website:

"We provide security and performance for millions of Internet properties and offer great functionality such as SSL and content distribution to every website on our network. Our services run silently in the background, keeping many of the websites and services you depend on up and running. Your Internet provider, and anyone else listening in on the Internet, can see every site you visit and every app you use — even if their content is encrypted. Cloudflare offers a free DNS service called 1.1.1.1 that you can use on any device. Cloudflare's 1.1.1.1 protects your data from being analysed or used for targeting you with ads. Above all, we are mission-driven. That's why we protect organizations working on behalf of the arts, human rights, civil society, or democracy with Project Galileo, giving them Cloudflare's highest level of protection for free."

In layman's terms, they can be seen as the world's most connected cloud network. They have high-speed servers and data centers across the world, including in over 200 cities and over 100 countries. They claim to make the internet faster (by caching content on your website) and directing users to the closest server near them. They also claim to protect websites against DDos attacks, SQL injections, and identity theft. They help improve performance and security for corporate networks, distributed networks, websites, APIs, and more. Think of them as a gigantic VPN.

They are known as a CDN (content delivery network) that stores and caches content of its users websites and thus makes your page load faster for viewers. They allow users with domain names to point their domain names at their server network via either a free or paid service.

They also claim to reduce "bot crawls," which are little pieces of code that come to your website (ex., Google bots to index your website) and other more malicious bots that may inject spam or malware on your site, create false ad impressions, or steal intellectual property (such as copying copyrighted website content) without authorization, resulting in infringement.\

WHAT DOES CLOUDFLARE DO?

In short, they claim to provide a faster, more secure internet experience. In my world, intellectual property piracy - they are often the subject of DMCA subpoenas from companies like the Motion Picture Association/A.C.E. Alliance, which find infringing movies, television shows, sports events, and PPV content being pirated.

TYPES OF CONTENT THAT MAY BE ILLEGAL PRODUCED ON INFRINGING WEBSITES

There are many different types of digital content that can be offered for illegal download on pirate websites. These include:

• Copyrighted movies
• Television shows
• Sports events
• PPV boxing matches
• Music
• Photography
• Drone video
• Cartoons
• Software
• Mobile applications
• Counterfeit goods
• Trade secrets
• Logos
• Artwork
• Paintings
• Jingles
•  
• Architectural plans
• Video games
• eBooks
• Scripts and screenplays

These are just a few things that may be subject to a "blocking order" (aka blocking injunction) by the Court. The court may limit the blocking to a certain location (ex. United States) this is known as geo-location blocking.

DMCA 512(H) SUBPOENAS TO CLOUDFLARE

When an IP rights holder finds rogue websites containing copyrighted content that is being infringed (ex. via Torrents or pirated movies available for download off a website), these rights holders want this infringing content TAKEN DOWN IMMEDIATELY. However, the problem arises because the person offering pirated content on a website is likely to have used offshore accounts, or bogus signup information with their web host ("ISP").` A takedown or DMCA subpoena to the web host may yield nothing of value.

Rights holders may then turn to Clouldflare (where the domain DNS is pointing) and seek to serve them with a "DMCA subpoena" to seek to learn information about the domain holder including:

• Their name
• Address
• Email
• Phone number
• Account history
• Account updates

Cloudflare may try to fight these subpoenas, and they may also have bogus information, but nevertheless, for rights holders, this provides an opportunity to find out the identity of the infringer and to go after them with a lawsuit.

According to the popular site TorrentFreak:

"Not all rightsholders are happy with the latter. Some have accused Cloudflare of facilitating copyright infringement by continuing to provide access to these platforms. At the same time, they call out the CDN service for masking the true hosting locations of these ‘bad actors.' Cloudflare sees things differently. The company positions itself as a neutral service provider that doesn't ‘host' any infringing content. They just pass on information that is cached on its services temporarily."

SAMPLE DMCA SUBPOENA TO CLOUDFLARE

Here is what a DMCA subpoena looks like. You file a request with the federal court of proper jurisdiction and seek to uncover this information and issue a subpoena. You set forth the websites and domains at issue and the content being infringed. The clerk will then usually issue a subpoena, which can be served on Cloudflare, requiring them to provide the requested information by a set deadline (ex. 14–21 days out).

See full sample here.

TEXT OF 17 U.S.C. 512(H):

(h) Subpoena To Identify Infringer.—

(1) Request.— A copyright owner or a person authorized to act on the owner's behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection.

(2) Contents of request.—The request may be made by filing with the clerk—

(A) a copy of a notification described in subsection (c)(3)(A);

(B) a proposed subpoena;

and

(C) a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under this title.

(3) Contents of subpoena.— The subpoena shall authorize and order the service provider receiving the notification and the subpoena to expeditiously disclose to the copyright owner or person authorized by the copyright owner information sufficient to identify the alleged infringer of the material described in the notification to the extent such information is available to the service provider.

(4) Basis for granting subpoena.— If the notification filed satisfies the provisions of subsection (c)(3)(A), the proposed subpoena is in proper form, and the accompanying declaration is properly executed, the clerk shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider.

(5) Actions of service provider receiving subpoena.— Upon receipt of the issued subpoena, either accompanying or subsequent to the receipt of a notification described in subsection (c)(3)(A), the service provider shall expeditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena, notwithstanding any other provision of law and regardless of whether the service provider responds to the notification.

(6) Rules applicable to subpoena.— Unless otherwise provided by this section or by applicable rules of the court, the procedure for issuance and delivery of the subpoena, and the remedies for noncompliance with the subpoena, shall be governed to the greatest extent practicable by those provisions of the Federal Rules of Civil Procedure governing the issuance, service, and enforcement of a subpoena duces tecum.

RESOURCES

1. How to check to see if a website is using Cloudflare
2. How to check the loading speed for a website (compare your site with your competitors)
3. How to see what web host a site is using

Here is a sample of my own website search, and you can see my webhost uses Cloudflare and my domain servers are pointed to Cloudflare. I also use the Content Deliver Network ("CDN") of Cloudflare and Proxy.

If your company is facing a legal issue involving piracy or theft of intellectual property, and you have identified that the infringing website uses Cloudflare, contact us to discuss your rights and potential options. We may look at options such as sending a DMCA 512(h) subpoena to a web host, or to Cloudflare.