• by Wendy Davis  @wendyndavis, October 7, 2021

Siding with Cloudflare, a federal judge has thrown out a lawsuit accusing the company of contributing to copyright infringement by failing to remove retail sites that sold counterfeits.

U.S. District Court Judge Vince Chhabria in the Northern District of California said in a ruling issued Wednesday that a reasonable jury couldn't conclude that Cloudflare's security or web performance services materially contributed to infringement.

The ruling comes in a lawsuit brought in 2018 by Mon Cheri Bridals and Maggie Sottero Designs, which sell wedding dresses online.

They alleged that Cloudflare provides caching, content delivery and security services to “rogue” ecommerce sites that post copyrighted photos of wedding dresses in order to sell knockoffs.

“Cloudflare’s liability arises from its material contribution to infringement of the infringing third party websites it provides services for by ... making it easier and faster for internet users to access infringing websites and content as well as knowingly making infringing content stored on its data center servers available and accessible to the consuming public after receiving credible notices of actual infringement from the copyright owners,” Mon Cheri Bridals and Maggie Sottero Designs alleged in court papers.

They added that they have filed “thousands” of notices to Cloudflare, and that the company failed to terminate its services to the knockoff sites.

Cloudflare urged Chhabria to dismiss the lawsuit, arguing that its services don't materially contribute to copyright infringement.

“Cloudflare’s services protect against malicious attacks and at most confer a split-second advantage to the loading time of a website someone is already visiting,” the company wrote in a motion seeking summary judgment. “There also is no 'simple measure' that Cloudflare failed to take to prevent further infringements in this case. Unlike hosting providers, Cloudflare could not remove allegedly infringing material from the Internet, and there is no question that those images would have remained available and equally accessible on the accused websites without Cloudflare’s services.”

Chhabria agreed with Cloudflare.

“The plaintiffs have not presented evidence from which a jury could conclude that Cloudflare’s performance-improvement services materially contribute to copyright infringement,” he wrote in a three-page order. “Cloudflare’s security services also do not materially contribute to infringement.”