EFF and Internet Services Company Say Web Firms Shouldn't Be the Major Labels' Watchdogs
CloudFlare, a San Francisco-based content distribution service that provides security (and speed) to websites, is pushing back at a recent federal court order that would force companies that deal with Internet infrastructure to essentially become copyright and trademark enforcers for music labels when an infringing site's owner cannot be found.
In May, U.S. District Judge Deborah A. Batts sided with Sony Music, Universal Music Ggroup and Warner Music Group to order the seizure of the various Grooveshark clones that began popping up following the closure of the original file sharing site. The language of the injunction stipulates that in addition to the owner(s) of the Grooveshark clones, "any persons in active concert" with them, including "domain name registrars… and Internet service providers" must also comply.
"This decision, and the strategy that led to it, present a serious problem for Internet infrastructure companies of all sorts, and for Internet users, because they lay out a blueprint for quick, easy, potentially long-lasting censorship of expressive websites with little or no court review," said digital watchdog Electronic Frontier Foundation (EFF), which is working with CloudFlare on the company's legal challenge.
CloudFlare was sent a copy of the original injunction because on separate occasions in May an anonymous user or users configured the domain names grooveshark.pw, grooveshark.io, grooveshark.vc and grooveshark.li in order to use CloudFlare's services. (More on what they do here.)
According to documents posted by EFF, CloudFlare then challenged the "overbroad order" as it applied specifically to them, arguing that as a reverse proxy service, it can make sites faster and more secure but cannot suspend domain names or shut them down. EFF has pointed out that there's a lack of clarity from courts on what it means for an Internet company to be in "active concert" with a copyright or trademark-infringing site.
Communication over the Internet can involve dozens of service and infrastructure providers, from hosts to domain name registrars to ISPs, backbone providers, network exchanges, and CDN services. Under a broad reading, even an electric utility or a landlord that leases space for equipment could conceivably be in "active concert or participation" with a website.
In the Grooveshark-related case, U.S. District Judge Alison Nathan was not convinced and concluded that CloudFlare and other companies dealing in the infrastructure of the internet must filter and ban any site with "grooveshark" in it if the site's owner doesn't comply. The person or persons behind the Grooveshark clones have so far remained anonymous -- and defiant -- leaving the burden of enforcement on the various service providers.
How is this potentially a big deal? Again, EFF:
Laws like Section 512 of the Digital Millennium Copyright Act, Section 230 of the Communications Decency Act, and court decisions on trademark law, protect Internet intermediaries from legal responsibility for the actions of their users, including the responsibility to proactively block or filter users. That protection has been vital to the growth of the Internet as a medium for communication, innovation, and learning. Those laws help keep Internet companies and entertainment conglomerates from becoming the gatekeepers of speech with the power to decide what we can and can’t communicate.
On Wednesday, CloudFlare filed a new motion with the court to modify that preliminary injunction to state that the company should only be responsible for taking down user accounts that incorporate "grooveshark" if they are first notified by music labels. "That change will put the job of enforcing trademarks back on the trademark holders, and preserve the balance created by laws like the DMCA," said EFF, which along with Goodwin Procter is representing CloudFlare in court. "CloudFlare supports smart, effective, and careful trademark enforcement and wants to see it done right -- not through broad orders that can impact free speech."