ALS Scan's Infringement Suit Against Cloudfare Allowed to Continue

ALS Scan's Infringement Suit Against Cloudfare Allowed to Continue
Rhett Pardon

LOS ANGELES — A Los Angeles federal judge yesterday sided with adult publisher ALS Scan and denied content delivery network provider Cloudfare Inc.’s motion for summary judgment in a long-running copyright infringement case.

ALS Scan, in its lawsuit, has accused Cloudfare — one of the leading CDN and DDoS protection services used by millions of websites across the globe — of various types of copyright infringement, noting that several customers used its servers to distribute pirated content.

While Cloudflare has managed to pare several counts from the complaint, the accusation of contributory copyright infringement still remains on the table.

U.S. District Judge George Wu in his ruling yesterday said that Cloudfare as a CDN provider could have done “something simple” to stop infringers and substantially assisted infringements by hosting cached copies of files.

Wu, however, made no conclusions of fact, one way or another, as to whether any specific infringing images were created as cached copies.

Now the landmark case moves on to jurors to decide whether Cloudfare is liable for damages.

ALS Scan suit, initiated in mid 2016, originally named two other defendants, as well — adult ad network Juicy Ads and cloud computing company Hebergement OVH Inc. But Wu granted their motions to dismiss and both companies were pared from the case.

Wu, in yesterday’s ruling, focused primarily on whether there are simple measures that could have prevented further infringement once Cloudfare was notified.

Cloudflare earlier argued that there are no simple measures it could take in response to alleged infringements. Removing a cached copy based on a takedown notice is not an option because that leaves sites and users vulnerable to malicious attacks, its lawyers said.

Wu, however, was dismissive of whether measures by the CDN couldn’t be taken.

“Both sides also devote significant argument to the technological feasibility of Cloudflare implementing a system by which it could keep certain images out of its cache, or off its network,” Wu wrote in his ruling.

“Much of this discussion is unnecessary to resolve the issue at hand. The simple answer as to whether Cloudflare could have done something simple to stop the infringement is ‘yes’: Cloudflare can, but does not, end its business relationship with websites that it knows (or arguably knows) are serial infringers.”

“Cloudflare’s response to this obvious step is to contend that the internet would be a more dangerous place if it withheld its services from sites like BestOfSexPics.com and CumOnMy.com,” Wu wrote. “While that may or may not be the case, if Cloudflare’s logic were accepted, there would be no web content too illegal, or dangerous, to justify termination of its services.”

“While Cloudflare may do amazing things for internet security, the court would have a hard time accepting that Cloudflare’s security features give it license to assist in any online activity. In sum, the court would not grant defendant’s motion for summary judgment based on these grounds.”

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