Wedding dress manufacturer sues Cloudflare for copyright infringement.

Wedding dress manufacturer sues Cloudflare for copyright infringement.

A copyright is a set of exclusive rights granted to the creator of a new creative work.  United States copyright law grants the creator of a new work the exclusive right to reproduce, distribute, perform, display, transmit or prepare derivative works based on the original work.  If someone other than the copyright owner attempts to exercise one of these exclusive rights, that can be considered copyright infringement. A copyright owner can sue to stop copyright infringement with an injunction and to recover monetary damages for copyright infringement which has happened.

An important concept in copyright law is that a copyright protects the expression of an idea, not the underlying idea.  This means that if an artist creates a picture of a mountain, other artists are still allowed to create their own picture of the same mountain.  The functional aspects of a copyrighted work are also not protected by copyright. This means that, while some consider fashion a form of art, the cut and style of clothing cannot be protected by copyright law because clothing is functional.

Copyright law was written long before computers and the internet were house hold appliances.  For this reason, copyright law struggles to keep up with the rapidly changing technology of today.  The Digital Millennium Copyright Act was enacted to modernize United States copyright law. One of the provisions of the digital millennium copyright act is that internet service providers are not liable for the copyright infringement of its users if the internet service provider follows certain rules.  The safe harbor provision of the Digital Millennium Copyright Act protects internet service providers from liability if they are unaware of a user’s infringing activity, do not financially benefit directly from the infringing activity, and the internet service provider acts quickly to take down infringing material when they are notified about it.  If an internet service provider fails to meet all the safe harbor requirements then they can be help liable for copyright infringement committed by their users.

MON CHERI BRIDALS, LLC v. CLOUDFLARE, INC., 2:18-cv-09453 (C.D.CA 2018) is a case which invovles a clothing manufacturer suing an internet service provider because of the actions of its users.  Plaintiffs in this are two of the largest manufacturers and wholesalers of wedding dresses and social occasion wear in the United States. The plaintiff has registered the copyright on several photographs of the dresses it sells.  Cloudflare is a content distribution network that helps speed up websites by hosting the websites on data centers throughout the world. Several company’s selling counterfeit versions of the plaintiff’s dresses use the Cloudflare service.  The websites that sell the counterfeit dresses use the plaintiffs copyrighted images to sell the counterfeit dresses.

The plaintiffs allege that Cloudflare’s service allows counterfeit sites and their hosts to conceal their identity from copyright owners. When presented with a notice of infringement, Cloudflare asserts that it is itself unable or unwilling to remove any infringing content, that it is merely a “pass-through security service” and not a hosting provider, and that the copyright owner must contact its customer to seek removal of the infringing content.

The plaintiffs allege that Cloudflare has induced, contributed to, profited from, and aided and abetted multiple infringements of Plaintiffs’ copyrights, failing and refusing all along to implement or enforce a repeat infringer policy, and therefore is liable for contributory copyright infringement.  Cloudflare has not responded to the complaint yet.

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