Copyright Claims Board Dismisses ‘Piracy’ Case Against Cloudflare

Last summer, the US Copyright Claims Board (CCB) officially launched. Through this Copyright Office-hosted venue, rightsholders can try to recoup alleged damages outside the federal court system.

The CCB aims to make it cheaper for creators to resolve disputes. There’s no attorney required and the filing fee is limited to $100 per claim. Accused parties also benefit as the potential damages are capped at $30,000. Those who prefer traditional lawsuits can choose to opt-out.

Many of the cases that have been submitted thus far are filed against direct infringers. This includes sites and services that use copyrighted material, such as photos, without obtaining permission from rightsholders.

There are also cases where claimants argue that defendants are liable for the acts of a third party. A claim filed by popular reading app AnyStories against CDN provider Cloudflare last September is one such example.

AnyStories vs. Cloudflare

AnyStories allows independent authors to earn revenue from sharing their writings in public. However, these stories are easily copied and posted on pirate sites, much to the frustration of READ ASAP, AnyStories’ Singapore-based parent company.

The Singapore company had some success with sending DMCA notices but one site in particular, infobagh.com, proved to be unresponsive.

Hoping for a breakthrough, AnyStories sent DMCA notices to Cloudflare, calling out Infobagh.com as a pirate site. While Cloudflare provides CDN services for that site, it’s not the hosting company. This means that Cloudflare generally doesn’t intervene.

Indeed, Cloudflare didn’t take action against its customer. Instead, it shared the contact information of Infobagh.com’s hosting company, urging AnyStories to follow the issue up with them.

AnyStories tried to do so, but since the hosting company’s contact information was reportedly inaccurate, it decided to file a claim against Cloudflare at the CCB instead.

Vague Claim, No Damages

The initial claim was rather vague and didn’t really pinpoint alleged wrongdoing at Cloudflare. AnyStories said it hoped that the pirated content would be removed and that Infobagh.com would apologize.

There were no copyright infringement allegations against Cloudflare and no request for monetary damages either.

The Board reviewed the complaint but decided that it couldn’t do much with it as it doesn’t comply with the CASE Act requirements. This was pointed out to AnyStories, and the company was given the opportunity to amend its claim, but it didn’t help.

“Your amended claim does not provide enough facts about allegedly infringing activity by the respondent, Cloudflare Inc,” the CCB wrote, concluding that the amended claim was still non-compliant.

“By contrast, your allegations about Cloudflare do not show how it committed infringement. Instead, you appear to describe responses that Cloudflare made, which you found unsatisfactory, to your inquiries about the allegedly infringing ‘pirated website’.”

Third Claim Fails as Well

In January, the CCB provided detailed information and pointers on how AnyStories could fix these shortcomings. Most importantly, it stressed that the claim should include a direct, contributory, or vicarious copyright infringement allegation.

Despite these detailed instructions, the third claim was again rather brief. While it included a $15,000 damages demand, a concrete copyright infringement allegation against Cloudflare was still absent.

“We tried to communicate with the service provider called CLOUDFLARE, INC., but the service provider provided us with an incorrect contact, which led us to still be unable to contact the actual operator of the pirated website,” it reads, adding that the infringing content remains online.

This was the third and final try for AnyStories, and the Board again concludes that the allegations are insufficient. The main claim that Cloudflare failed to provide accurate contact information for the pirate site’s host has nothing to do with copyright infringement.

“Providing incorrect contact information is not an infringing act, and the claimant has not explained how Cloudfare contributed to the alleged infringement here,” the Board writes.

“The claimant has not described any actions by Cloudflare that would constitute copyright infringement, nor has it described any service that Cloudflare provides to infobagh.com or identified grounds to hold Cloudflare liable for infringement on that site.”

Refile and Repeat?

This isn’t the decision AnyStories was looking for but the CCB is actually quite helpful and points out, again, how the company can lodge a proper contributory infringement claim against Cloudflare.

If the company wants to refile its claim, it should at least show that Cloudflare knew about the infringing activity and induced or caused it (contributory infringement). Alternatively, it can show that Cloudflare had the ability to control the infringing activity and financially benefited from it (vicarious infringement).

The present case stops here, however, and READ ASAP’s complaint is dismissed. These types of dismissals are actually quite common for CCB cases. As Plagiarism Today points out, many filings turn out to be defective.

Thus far, the Copyright Claims Board hasn’t led to a wave of rulings. On the contrary, of the 415 cases file to date, only one has resulted in a full decision. In that case, the board awarded $1,000 to a photographer who discovered that his work was used on the website of a California-based law practice.