A long-running dispute between Universal Music Group’s German arm and internet services company Cloudflare could soon be decided at the European Union’s top court.
According to a document published in the EU’s Official Journal on November 17, a German federal court has asked the Court of Justice of the European Union (CJEU) to resolve the question of whether Cloudflare and other internet services companies can be held liable if their infrastructure is used in the spread of copyright-infringing content.
If the CJEU rules in Universal’s favor, it would mean that internet infrastructure companies like Cloudflare, Akamai, Amazon CloudFront and Google Cloud CDN could be held liable for piracy that takes place via websites for which they provide services. It would mean a new and powerful avenue for combatting piracy.
Universal Music GmbH sued Cloudflare in 2019, arguing that Cloudflare should be held responsible for piracy made possible by DDL-Music, a now-defunct site that provided links to pirated music content.
Cloudflare provided DNS and CDN services to DDL-Music. DNS is the system by which web browsers locate websites on the internet. CDN, or content delivery network, is a way of distributing content across multiple servers to speed up download times by allowing web users to access content from the nearest server.
Specifically, Universal Music said Cloudflare had allowed the pirating of tracks recorded by German pop star Sarah Connor. Although DDL-Music is no longer online, the court case has continued because it can decide the limits of who can be held responsible for pirated content under EU law.
In 2023, a court in Cologne, Germany ruled partly in Universal’s favor and partly in Cloudflare’s favor. It concluded that Cloudflare’s DNS service couldn’t be held liable for piracy, but its CDN service could be. Cloudflare appealed that ruling to a higher court, and earlier this year, that court asked the CJEU, Europe’s top court, to issue an opinion on the matter.
Universal has argued that because Cloudflare’s CDN service caches the content for up to a year (i.e., it creates copies of it for easy access), it should be treated as a “hosting” service that can be held liable for infringement under EU copyright law.
But Cloudflare has argued that this goes against EU law. In a 2023 blog post, the company said the EU’s Digital Services Act “expressly identifies CDN services as among the caching services entitled to a liability privilege.”
In its request for a preliminary ruling, first reported on by piracy news site Torrentfreak, Germany’s Federal Court of Justice asks the CJEU to decide two questions: Whether a link to a pirated file itself a form of piracy (Music-DDL provided links to pirated content, but didn’t itself host that content) and whether Cloudflare’s CDN infrastructure should be treated as a hosting service or caching service.
On the first question, if the CJEU rules that linking to pirated content is not itself piracy, it would be a major setback for copyright holders, as many websites that offer pirated content only provide links to content hosted on so-called cyberlockers like 1ficher, Krakenfiles or Rapidgator.
Copyright holders would have to sue those cyberlockers directly, which is difficult because they often hide their ownership, or are located in countries that are lax on copyright law, like Russia.
Conversely, if the CJEU rules that linking does amount to piracy, websites like DDL-Music could be sued directly for providing links to pirated content.
On the second question, if the CJEU rules that Cloudflare is providing a caching service, the company will likely be off the hook for pirated content linked to on websites for which it provides CDN services.
But if the court rules that its CDN services amount to hosting, Cloudflare and other internet infrastructure providers could be on the hook for piracy on websites they service – and that would give copyright holders a new point of leverage for eliminating copyright infringement online.
The CJEU hasn’t set a date for a decision on the matter, but the court usually takes 12 to 18 months to respond to requests for rulings from courts in EU member states.Music Business Worldwide
