A nighttime shot of the Hohenzollern Bridge in Cologne, Germany. Photo Credit: Adnan Omicevic
Amid a long-running legal battle with Universal Music Group (UMG) in Germany, Cloudflare is touting a new court ruling as a win for it as well as the broader internet “against misguided attempts to address online copyright infringement.”
Cloudflare senior associate general counsel Patrick Nemeroff weighed in on the judgement, handed down by the Higher Regional Court of Cologne, in a more than 2,000-word blog post. Meanwhile, the overarching dispute – one of several initiated by UMG and/or the other majors against Cloudflare – kicked off back in 2019.
According to TorrentFreak, which has covered the nearly half-decade courtroom confrontation from the outset, the case centers specifically on a now-defunct website called DDL-Music.
Based in Russia, per court documents, and having presumably proven difficult to target through the nation’s own legal system, the out-of-commission piracy platform hadn’t itself hosted the allegedly infringing files (of German singer Sarah Connor’s work), the mentioned outlet reported.
Rather, the since-shuttered service had featured links to third-party sites through which users could download the tracks illegally; Cloudflare’s decision not to immediately block DDL-Music (and the relevant links) reportedly set the stage for the complaint. And in October of 2020, a court slapped Cloudflare with a permanent injunction concerning the alleged infringement at hand.
Said injunction compelled the San Francisco-based business to cease offering its services to DDL-Music, which had by this point shut down. Consequently, while there was no DDL left to block, Cloudflare went ahead and targeted the wider precedent with an appeal.
Multiple twists, turns, and years later, the initially noted Higher Regional Court in early November issued the (newly public) ruling upon which Cloudflare has commented.
In brief, the judgement (penned, of course, in German) found Cloudflare responsible for blocking allegedly infringing sites in certain situations moving forward, but rejected the argument that it must work to curb infringement via its domain name system (DNS).
“The Higher Regional Court’s recent decision makes clear that public DNS resolvers are not an appropriate tool for seeking to address online infringement, or moderate content more generally,” Cloudflare’s Nemeroff maintained.
“Importantly, the court held that DNS services are protected by the EU’s Digital Services Act (DSA), which was enacted last year,” proceeded the four-year Cloudflare exec, who also described at length the ins and outs of DNS as well as its purported inability to address infringement effectively.
In closing, though, Nemeroff said other components of the ruling – chiefly the previously highlighted order to block the website via its content delivery network (CDN) service – “raise concerns.”
“But to the extent the decision can be read to imply a broader obligation by pass-through security and CDN services to address online content,” he concluded, “that is inconsistent with the nature of our services and with the DSA, which expressly identifies CDN services as among the caching services entitled to a liability privilege. Cloudflare therefore plans to appeal that aspect of the decision.”
