Big Tech Protests US Pirate Site Injunction “Power Grab” Against Cloudflare

After obtaining broad injunctions to take down pirate sites, Israel-based media companies accused Cloudflare of failing to take action, in contempt of court. Cloudflare has now fired back, describing the move as a legally unstable "power grab," but that's just the beginning. Overnight, Google, EFF, and industry group CCIA intervened to express concern over the scale of the injunctions.

cloudflareThis April, United King Film Distribution, DBS Satellite Services, and Hot Communication (all members of Israel-based anti-piracy group Zira) won three copyright lawsuits against three pirate streaming sites.

The operators of Israel-tv.com, Israel.tv and Sdarot.tv failed to appear, so the court held them liable for millions in statutory damages and signed off on an extremely broad injunction requiring every ISP in the country to block subscriber access to the sites.

While that element was later suspended, the injunction also prohibits any company (ISPs, webhosts, CDN providers, DNS providers, domain companies, advertising services, financial institutions, payment processors) from doing any business with the sites, now or in the future.

Early June, after seizing several ‘pirate’ domains, the plaintiffs’ informed the New York court that since Cloudflare had continued to service Israel.tv, it had failed to comply with the injunction and should be held in contempt of court. A timeline reported in our earlier article indicated that the plaintiffs’ allegations were likely incorrect, since they themselves had seized the domain around May 26.

According to a 24-page response just filed by Cloudflare, the company appears to agree, but its opposition goes much further. Broad injunctions that attempt to deal with future ‘pirate’ countermeasures (such as domain changes) may seem reasonable to the plaintiffs, but this case shows that rightsholders can issue powerful orders without any due process or judicial oversight.

Cloudflare: We Can’t Discontinue Service That Doesn’t Exist
Our timeline linked above indicates that the Israel.tv domain was likely seized by the plaintiffs on May 26, meaning that it was no longer linked to the infringing activity mentioned in the injunction. In its response, Cloudflare confirms that on that same date, Israel.tv stopped using its services, meaning that there was no action it could take, i.e it’s impossible to withdraw services that aren’t being used.

“Cloudflare cannot possibly be ‘in active concert or participation’ with Defendants [Israel.tv] with respect to copyright infringement or other prohibited acts on the Website, when no such acts are occurring. The Court should deny Plaintiffs’ Motion as moot on that basis alone,” Cloudflare writes.

New Domains Aren’t Covered By The Injunction
In addition to their complaints relating to Israel.tv, the media company plaintiffs go even further in their motion for contempt. They allege that five additional domains “associated with the infringing Website” were created and new accounts were opened with Cloudflare around May 22.

Since the injunction covers “any domain address known today…or to be used in the future by the Defendants”, they believe that Cloudflare should take action when notified of these “Add-On Domains”.

Cloudflare’s response states that none of the advised domains are plausibly covered by the injunction, and the unsupported bare claims of the media companies fail to convince otherwise.

“Plaintiffs fail to provide a shred of evidence, or even any argument, that any of the Add-On Domains are connected to Israel.tv, or that they are owned or operated by Defendants or their agents. Any reading of the Injunction that attempted to stretch it to cover the Add-On Domains would violate fundamental limitations on the scope of available injunctive relief..,” the company’s opposition reads.

Cloudflare says that under Federal Rule of Civil Procedure 65(d) and Section 512(j) of the DMCA, injunctive relief must be narrowly targeted to specific, identified defendants and their agents, and/or third parties in active concert or participation with such defendants.

“None of those conditions are satisfied here,” Cloudflare notes.

Describing the contempt motion as a “blatant attempt at a power grab” by media companies seeking to enforce an overbroad injunction, solely on their say-so, and without any due process or judicial oversight, Cloudflare says the motion “flies in the face of the law” and should be denied for violating basic legal principles.

For clarity, Cloudflare says it reviewed its records for the new ‘Add-On Domains” and found that none match the subscriber information associated with Israel.tv.

Big Tech Gets Involved After Cloudflare Was Singled Out
Cloudflare’s opposition questions why the plaintiffs singled out Cloudflare for a motion of contempt, especially on an “emergency” basis when it was obvious the company hadn’t been servicing the domain for some time (due to the plaintiffs’ domain seizure), so was in effect already complying with the injunction.

Those questions remain unanswered but new developments overnight indicate that, by obtaining such a broad injunction and then wrongly attempting to hold Cloudflare in contempt, plaintiffs United King Film Distribution, DBS Satellite Services, and Hot Communication have managed to stir up a Big Tech hornets’ nest in the United States.

In a letter to Judge Katherine Polk Failla at the US District Court for the Southern District of New York, Google LLC says that it was identified in the injunction as a “vendor providing services” to Israel.tv and also as an ISP in the form of Google Fiber Inc. The big news is that Google is in talks with the media companies’ counsel in advance of a potential motion to either modify or dissolve the injunction.

Google says that it does not want its services to be used to violate an injunction but, as they stand, the injunctions covering the three pirate sites are problematic in both scope and terms.

“Google is not in active concert or participation with the activities of the Defendants, and for that reason cannot properly be bound by an injunction in these cases,” the company informs the Court.

Google also holds the same position as Cloudflare, noting that under Federal Rule of Civil Procedure, injunctions need to “describe in reasonable detail…the act or acts restrained or required.” In this case the injunctions do not name the defendants (all were defaulting ‘Does’) so Google says it has no idea who it shouldn’t be doing business with.

The ‘Add-On Domains’ are also a problem, since the injunctions “appear to contemplate additional domains being added simply based on the unsupervised say-so of counsel for Plaintiff.” Finally, the injunctions only describe general categories of behavior rather than specific activities with respect to specific, identified copyrighted works, a requirement under copyright law.

“Google is discussing with Plaintiffs what voluntary action Google is willing to take to assist in effectuating this Court’s remedies against the Defendants, while taking into account Google’s concerns regarding both the proper scope of injunctive relief in this matter and the parties against whom such relief may be granted,” Google informs the court.

EFF and CCIA Request Permission to File Amicus Curiae Brief
Shortly after Google filed its letter, the Electronic Frontier Foundation (EFF) and Computer and Communications Industry Association (CCIA) requested permission to file an amicus curae brief. CCIA is a large tech advocacy group counting the likes of Amazon, Apple, eBay, Facebook, Mozilla, Nord Security, and Twitter among its members.

Both EFF and CCIA are troubled by the injunction, noting that the plaintiffs requested a sweeping injunction that purports to bind “hundreds, perhaps thousands” of non-party internet communications businesses.

“The injunction is impermissibly broad. It is contrary to both Federal Rule of Civil Procedure 65 and the Digital Millennium Copyright Act,” EFF and CCIA inform the Court.

“It will cause collateral harm to numerous Internet services and their users by imposing unnecessary costs and compliance burdens. Plaintiffs’ motion for contempt against Cloudflare is likewise improper. It illustrates the harm that Plaintiffs can cause, and appear ready to cause, through the injunction.”

Noting that an injunction cannot be a “blank check to fill in” with the details of any business that touches a defendant’s infringing materials, EFF and CCIA say that the plaintiffs have provided no “clear and convincing proof” that any non-party service provider, including Cloudflare, is “substantially intertwined” with the defendants and actively working with them to bypass the injunction.

The proposed amicus brief broadly aligns with the concerns raised by Cloudflare/Google and highlights how injunctions that aim to be proactive (by covering new domains, for example) can have a chilling effect due to a lack of specificity.

“Requiring service providers to actively detect and block websites that are not explicitly named in an order, on pain of contempt sanctions, would create a strong incentive for those service providers to preemptively block sites that show any appearance of being affiliated with an enjoined defendant, but in fact are not,” the brief adds.

EFF and CCIA conclude by asking the Court to deny the motion of contempt against Cloudflare and “treat with skepticism” any future attempts by the plaintiffs to enforce the injunction against nonparty service providers.