et al / Cloudflare case: Internet now safe from censorship by ISPs

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An April 2022 victory by a group of media companies (Plaintiffs) against the operators of the, and pirate sites (Defendants) included orders that any third parties providing services that could be used to distribute the media companies’ content must block subsequent access to ‘any domain address known today (and any changes in the future)…by any technological means available…’  The order identified Cloudflare and thirteen other companies that distribute content online.

In early June, the plaintiffs submitted a letter to Cloudflare, saying that Cloudflare was not complying with the blocking order, with examples.  Cloudflare protested that it was a ‘pass-through service’ and that it is not within Cloudflare’s ability to remove content from its customers’ Web sites.  Furthermore, Cloudflare responded that ‘the Website (had) not used (Cloudflare) since May 26.’

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In mid-June, the EFF and CCITT (together) and Google (separately) submitted briefs in support of Cloudflare; all of them saying that the blocking order went too far.

In effect, the April blocking order was characterized as censoring the entire Internet.  Possibly realizing in retrospect that the order went too far, the plaintiffs had requested a stay of enforcement in late May.   On June 21, Plaintiffs and Cloudflare agreed to request an amendment that withdrew the motion for contempt against Cloudflare.

Further details as of late June were reported by Piracy Monitor.

Modified order

The modified injunction cuts the matter down to size by no longer requiring every ISP to block pirate sites “now or in the future,”  which had raised concerns that ISPs would have to pro-actively police and censor the entire Internet.

As registrars of the ‘newly discovered domains’ that had been identified in May as continuing to distribute the Plaintiffs’ content for the Defendants, Cloudflare, Google and the other ISPs named in the  were given 7 days to disable the infringing domains and 30 days to identify contact information and transfer the identified domains to the Plaintiff media companies.

The modified order and supporting documentation are filed as Document 93 of Case 1:21-cv-11024, filed in the US District Court of the Southern District of New York

Why it matters

Upon approval of the Plaintiffs’ request, plaintiffs would now have to identify specific infringing instances, and then call on the ISP to take action.

The plaintiffs are still recognized as the legal owners of the content and the defendants (pirates) are still in violation of the DMCA’s anti-circumvention provisions (of encryption), still liable for copyright infringement, and still ordered to pay $7.65 Million in statutory damages plus fees and interest.

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