Judge fixes troubling court order in CloudFlare filtering case
Happily, the judge in the case now has revised that order; if Arista Records or other plaintiffs want CloudFlare to deny services to particular infringing clients or websites, they have to give CloudFlare notice of the infringement.
The Electronic Frontier Foundation should be applauded for it key role in asserting that CloudFlare, like other Internet intermediary services, shouldn’t have to take on the task of monitoring all its traffic to determine (or guess) whether Arista’s trademarks or copyright interests are infringed. You can find EFF’s summary of the issues in the case here. EFF Attorney Mitch Stoltz makes a key point when he writes:
The original order against CloudFlare, if it had become the norm, would put service providers in the uncomfortable position of having to figure out who’s allowed to use terms like ‘grooveshark’ and who isn’t—or of having to block them all. Turning Internet companies into enforcers of who can say what on the Internet is exactly what laws like the DMCA were meant to avoid.
Also important is the judge’s decision to allow CloudFlare to give 48 hours’ notice to a client or website that’s about to be cut off. This gives the targets a reasonable chance to challenge an unfair or overly broad order in court, which is yet another victory for due process.
Stoltz referenced the Digital Millennium Copyright Act, which deals with intellectual property. But the scope of protection for Internet intermediaries is even broader under American law, thanks to Section 230 of the Communications Decency Act.
Taken together, Section 230 and the DMCA have provided a protective legal framework that has shaped the Web we love today. That’s why we have to be vigilant about litigation, new laws or other efforts that may put this framework at risk.