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Niece Waidhofer and cosplay models Ryuu Lavitz and OMGcosplay are accusing Cloudflare of protecting and supporting pirate sites that host their leaked photos. Responding to the lawsuit, Cloudflare pointed out that it's a content-neutral service provider but the models argue that the CDN provider has made a cottage industry out of indulging pirates. Earlier this year Texas-based model Deniece Waidhofer sued Thothub for copyright infringement after the site’s users posted many of her ‘exclusive’ photos. Soon after the complaint was filed Thothub went offline. This prompted Waidhofer to shift priorities. In an amended complaint, submitted a few weeks ago, Thothub is no longer a defendant. Instead, the lawsuit now focuses on several sites and services that did business with the pirate site, including CDN provider Cloudflare. Cosplay Models Join Case Against Cloudflare Another significant change is that Waidhofer is no longer the sole plaintiff. She is now joined by two cosplay artists, Ryuu Lavitz and Margaret McGhee, better known as OMGcosplay. Together, these models have millions of online followers. When the original case was filed, Lavitz and McGhee hadn’t registered their photos at the Copyright Office. Both submitted their registrations for hundreds of works in September, after which they were able to join the case. In addition to removing Thothub as a defendant and adding two plaintiffs, some of the strongest allegations were stripped from the original complaint. Cloudflare is no longer alleged to be part of a RICO conspiracy but is accused of direct and contributory copyright infringement. The models claim that Cloudflare has carved out a competitive niche by serving illegal pirate sites that other large CDN companies like Akamai Technologies would not. It ‘helps’ these sites by concealing the real IP-address and by ‘storing’ their content, it’s alleged. Motion to Dismiss Cloudflare replied to these allegations by pointing out that it’s merely a middleman. The company has no knowledge of the traffic that passes through its network and doesn’t store content permanently, in most cases, but simply makes temporary “cache” copies. “Under Plaintiffs’ wildly expansive theory of liability, the owner of any computer connected to the Internet could potentially be exposed to unlimited liability,” Cloudflare argued, adding that the complaint doesn’t show bad “intent”. Based on these and various other deficiencies, the CDN provider asked the court to dismiss the case. However, the models disagree and recently submitted several counterarguments. ‘Cloudflare Helps Pirate Sites’ The models argue that Cloudflare was aware of the copyright infringements on Thothub, but chose not to do anything. Instead, it helped the site to cope with vast amounts of traffic so it could stay online. That’s what the site does for other pirate sites as well. “Cloudflare easily could have limited Thothub’s infringement simply by terminating service, or by not delivering URLs that it had already been notified contained infringing content. But Cloudflare stood behind Thothub instead, as it does regularly for pirates everywhere. Indeed, Cloudflare has made a cottage industry out of indulging pirates.” The plaintiffs say that Cloudflare is liable for contributory copyright infringement. The company’s decision not to take action helped Thothub to stay online and operate more efficiently. That is enough to be held liable, the models argue, referencing the ALS Scan case against Cloudflare. “Cloudflare enabled Thothub to be operated securely on a vast scale. The law recognizes this as a material contribution that, with knowledge, creates liability,” they write. Thothub Alternatives Still use Cloudflare Without Cloudflare, Thothub’s site would have been “overrun and crashed.” Although it may have come back, that ‘simple measure’ would have made a difference, at least briefly. Cloudflare, however, decided not to act and it does the same for many similar sites today. “The Complaint identifies nearly two dozen other pirate sites — all Cloudflare clients — that are Thothub copycats, including one called Thothub.ru that is nearly a direct clone,” the plaintiffs write. In addition to contributory infringement, the models also accuse the company of direct infringement. They argue that the CDN provider made copies of Thothub files on its own accord and continued copying works after takedown notices were sent. The reply to Cloudflare’s motion to dismiss is filled with allegations that will eventually have to be backed up with evidence. In addition to focusing on the case at hand, it also references an EU report which concluded that 62% of the world’s top 500 pirate sites use Cloudflare. Daily Stormer and 8Chan And, as we predicted a few years ago, Cloudflare’s decision to ban The Daily Stormer is also being brought up. “Despite serving most of the world’s top pirate sites, on information and belief, Cloudflare has never voluntarily terminated services to a customer for repeat copyright infringement. Cloudflare has, however, voluntarily terminated services for other customer sites, including the American Neo-Nazi group Daily Stormer and the conspiracy website 8chan,” the reply reads. It is now up to the US District Court for the Central District of California to decide whether the case against Cloudflare should be dismissed, or if the models can pursue their claims at trial.

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The creator of popular TV show Cheaters is now engaged in legal action to prevent the series from being viewed on YouTube illegally. Targeting more than two dozen channels that uploaded episodes, lawyers for Bobby Goldstein Productions wants YouTube to hand over their identities and an account of the profits generated. With millions of users uploading huge quantities of content every day, YouTube is the largest video platform on the planet. Of course, not all of this content is licensed for upload and as a result, YouTube regularly finds itself at the center of copyright holder disputes. Usually, complaints are handled with a Content ID match or a straightforward takedown process but some content creators prefer to take things a little further. Creator of TV Show Cheaters Takes Legal Action Controversial reality TV show Cheaters deploys its own ‘Cheaters Detective Agency’ to carry out investigations on behalf of individuals who suspect their partners are committing adultery and similar infidelities. Created by writer Bobby Goldstein, Cheaters launched in 2000 and has reached season 19, airing on various legal TV outlets around the world. However, there are many hundreds of Cheaters episodes available on YouTube too, uploaded by users in breach of copyright. Collectively these videos have been viewed millions of times and for Bobby Goldstein Productions (BGP), the owner and rightsholder of more than 227 Cheaters episodes, enough is enough. In an application for a DMCA subpoena filed against YouTube in a Texas court, BGP attorney Jeffrey R. Bragalone is now seeking to obtain the identities of more than two dozen YouTube account holders who uploaded Cheaters episodes to the video platform, so that the company may enforce its rights. DMCA Takedown Notice The application begins by reminding YouTube of its legal position, noting that since it displayed and reproduced infringing episodes, it may be liable to hand over all of the profits it generated from them. Alternatively, under 17 U.S.C. § 504(c), YouTube may be liable for statutory damages of up to $150,000 per infringing work. BGP’s attorney then issues a formal demand to YouTube, demanding that it immediately cease-and-desists from hosting and displaying the episodes in question, noting that failure to comply will be considered as evidence of willful intent in the event of a lawsuit. At the time of writing and after testing a sample of the URLs listed by the company, the allegedly infringing videos (including the small selection in the image above) appear to remain live on YouTube but given the official nature of the complaint, that position is likely to change in the coming days. Nevertheless, a simple takedown won’t be enough to fulfill the requirements of the subpoena. Disclose User Identities and Preserve Evidence In the first instance, BGP is seeking to find out the identities behind the YouTube user accounts that uploaded the infringing videos. There are more than two dozen in total, some of which are dedicated to the show, some that offer various TV shows and movies, and others that appear to have uploaded episodes in a less organized fashion. Regardless of type, BGP is demanding that YouTube provides documentation to show “all registration information, account information, billing information, payment information, or other identifying information associated with the YouTube accounts” including their “name(s), address(es), telephone number(s), email address(es), and account number(s) associated with each account, and the Internet Protocol addresses (including time stamps) used to create each account, access each account, or upload the material” for each of the supplied URLs. In addition to user information, BGP is also seeking information that could be helpful should it file lawsuits against the listed YouTube users and potentially the platform itself in the unlikely event content isn’t taken down. The requested evidence includes the total page views and/or downloads of the infringing URLs/videos, plus an account of total revenues and gross profits relating to the display of the offending material, including all advertising and/or affiliate revenue. “This information must be provided with accompanying documentation, including financial and other business records, supporting the responses given to these questions,” the DMCA subpoena application reads. In addition, BGP is demanding that YouTube preserves all communications relating to the videos, including emails, voicemails and instant messaging, any and all related documents, network access and server activity logs, plus any other relevant information. “Should you fail or refuse to take down the Subject Videos, our client will have no choice but to file a complaint against your company seeking immediate injunctive relief, as well as compensatory, statutory, and punitive damages, attorney’s fees, and costs,” BGP concludes. After being filed earlier this week, the case was reviewed by Judge Rodney Gilstrap. In his order, he noted that BGP had complied with all of the components required to obtain a subpoena. So, in an order issued Wednesday, the Judge ordered YouTube to comply by supplying the information sought.

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Mitch Glazier, who represents the major labels as head of the RIAA, made this and other noteworthy statements concerning Twitter’s copyright policies – as well as U.S. copyright law in general – during a recent hearing before the Senate Judiciary Committee’s Subcommittee on Intellectual Property, entitled “The Role of Private Agreements and Existing Technology in Curbing Online Piracy.” The Intellectual Property Subcommittee’s chair, Senator Thom Tillis, floated the idea last month of replacing the Digital Millennium Copyright Act with “some type of a notice-and-staydown system,” before inviting stakeholders to offer pertinent suggestions concerning the legislation. The corresponding DMCA reform discussion draft – which the senator said will “propose what some would consider revolutionary changes to digital copyright law” – is expected to release imminently. The broader DMCA replacement legislation, however, is north of half a decade away from coming to fruition, the recently reelected senator specified early in the hearing. “Everyone knows legislating takes time. It’s painstaking, and it involves many years of negotiations and compromise. And while reforming the DMCA will be one of my top priorities in the next Congress, it is probably going to take my entire second term to get this bill across the finish line,” said Senator Tillis. “In the meantime, we need to figure out what tech companies and copyright owners can do now, voluntarily, to combat online piracy,” he continued. These potential steps for combatting online piracy played a prominent role in the approximately two-hour-long hearing – which Twitter representatives opted not to attend, despite the fact that it took place remotely. (Probir Mehta of Facebook, which unveiled licensed music videos in July, participated, as did YouTube’s Katherine Oyama.) “I’m disappointed, incidentally, that Twitter refused to participate in this hearing and then submitted what I would consider to be perfunctory or largely non-responsive answers to very detailed questions about voluntary measures,” said Chairman Tillis. And after responding to several questions and highlighting the perceived deficiencies of the DMCA, Mitch Glazier, who represents the major labels as CEO of the RIAA, once again, turned his attention to alleged copyright infringements on Twitter. “I would say that over the past two years, the music industry has sent Twitter notices of over 3,000,000 infringements for over 20,000 works. So this is piracy at an industrial, massive scale. This is not some small problem,” Glazier said at about the 1:25 mark of the hearing. “And unlike Facebook and unlike YouTube, they have done nothing to try to at least build tools or to help prevent what is by its nature a viral system where piracy can spread literally in microseconds. “And the other thing that they do is they really don’t offer us the ability to search their universe for infringements. We’ve asked for it many, many times, and they want to charge us,” proceeded Glazier, who joined the RIAA in 2000 and became chairman and CEO in January of 2019.

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