A copyright holder can’t use a court order against the owner of an infringing website to conscript every intermediary service on the internet into helping make that website disappear, EFF and the Computer & Communications Industry Association argued in an amicus brief.
The brief, filed in the U.S. District Court for the Southern District of New York, defends Cloudflare, a San Francisco-based global cloud services provider.
United King Film Distribution - a movie, television, sports and news content producer and provider - sued the creators of Israel.tv, which had streamed content on which United King held copyrights. After the people behind Israel.tv failed to appear in court, United King won a shockingly broad injunction not only against them but also claiming to bind hundreds, maybe thousands of intermediaries, including nearly every Internet service provider in the US, domain name registrars, web designers, shippers, advertising networks, payment processors, banks, and content delivery networks.
United King then sought to enforce that injunction against CDN/reverse proxy service Cloudflare, demanding that Cloudflare be held in contempt of court for refusing to block the streaming site and stop it from ever appearing again.
But the injunction is impermissibly broad, at odds with both Federal Rule of Civil Procedure 65 and the Digital Millennium Copyright Act (DMCA), EFF’s brief argued. It’s like ordering a telephone company to prevent a person from ever having conversations over the company’s network. It will cause collateral harm to numerous internet services and their users by imposing unnecessary costs and compliance burdens. And it could cause intermediaries like Cloudflare to block lawful websites and speech in order to avoid being sanctioned by courts in cases like this.
A copyright holder with an injunction simply can’t conscript every Internet intermediary to help cut every Internet user off from accessing an infringing website. In fact, they can’t conscript even one intermediary without fulfilling the law’s requirements. They would have to show that the intermediary acted in close coordination with the website owners, more than just providing them a basic service. And they would have to limit their injunction to the narrow guidelines allowed under the DMCA, including giving intermediaries a chance to be heard before being ordered to block.
We’ve seen this playbook before. In 2015, we helped Cloudflare get relief from a similar order that would have required them to play detective by finding and banning an infringing website owner whenever and wherever they appeared. And of course, the order in this case looks a lot like the kind of website-blocking order that the infamous SOPA and PIPA bills of 2011-2012 would have enabled. It’s preposterous to think that major media companies waged a giant, expensive, and ultimately losing battle for the power to censor websites if that power was allegedly available from the courts all along.
Today, we hope the courts understand that even if a website is infringing copyrights, the law doesn’t let rightsholders conscript the entire internet to help make that site go away. The costs to innocent users’ rights is simply too high.
The case is 21-cv-11024 KPF-RWL.