Cloudflare CEO faces two-hour deposition over his company’s piracy policies

[Len]

The US record industry again laid into Cloudflare earlier this month in its annual submission to the American government on piracy matters around the world. And now the internet firm’s CEO Matthew Prince is set to be questioned about his company’s policies regarding its copyright infringing customers.

The questioning will occur during a two hour deposition linked to an ongoing legal battle between Cloudflare and a porn business called ALS Scan. It wants to speak to Prince about his recent decision to ban a neo-Nazi website from using his company’s services, mainly to ask why he couldn’t instigate similar bans against websites that exist to infringe copyright.

As previously reported, Cloudflare provides various services to website owners, many designed to speed up the delivery of said sites’ content and to protect them from external attacks that could cause sites to crash offline, such as the DDoS attacks that were pretty popular for a while within the angry hacker community.

Among Cloudflare’s large client base are a bunch of piracy operations, which is what annoys the copyright owners, who argue that the company is helping to facilitate the copyright infringement undertaken or instigated by its piracy clients.

Another gripe, often shared by the Recording Industry Association Of America, is that when piracy sites push their services through the Cloudflare platform, it makes it harder to identify the source of the piracy operation. Or, in the words of RIAA’s recent piracy submission: “[Piracy sites] are increasingly turning to Cloudflare because routing their site through Cloudflare obfuscates the IP address of the actual hosting provider, masking the location of the site”.

As also previously reported, ALS Scan sued Cloudflare last year, seeking to make the company liable for the copyright infringement of various sites it provides services to which in turn illegally distribute the porn firm’s content. Cloudflare did manage to get that lawsuit streamlined, but it is still defending itself against allegations of ‘contributory infringement’, and efforts to have the case dismissed on jurisdiction grounds failed earlier this year.

Cloudflare, like most internet companies, has generally resisted efforts to force it to police the content that passes through its network. On piracy matters, the firm has always insisted that it can only cancel the account of a copyright infringing client when ordered to do so by a court of law, a judge being the right person to rule whether infringement is indeed occurring on any one website.

However, back in August Cloudflare was one of a number of internet companies to cease providing services to the neo-Nazi website The Daily Stormer, which caused even more outrage than normal via its coverage of the far-right rally in Charlottesville, Virginia. In a blog post at the time, Prince said that while “we’ve felt angry at these hateful people for a long time”, the company decided to terminate the website’s account after “the team behind Daily Stormer made the claim that we were secretly supporters of their ideology”.

Given Prince decided to terminate the account of The Daily Stormer based on their behaviour and actions, and not in order to comply with a court order, some copyright owners have asked why he couldn’t adopt a similar attitude to clients whose websites clearly exist to enable and encourage copyright infringement.

Actually, Prince foresaw that response in his blog confirming the Daily Stormer axe, in which he wrote: “Now, having made that decision, let me explain why it’s so dangerous”.

After discussing the role – or not – of internet companies in regulating what content is on the net, and the importance of free speech and due process, he concluded: “Our policy is to follow the guidance of the law in the jurisdictions in which we operate. Law enforcement, legislators, and courts have the political legitimacy and predictability to make decisions on what content should be restricted. Companies should not”.

Nevertheless, in the wake of Prince’s decision on The Daily Stormer, lawyers working for ALS Scan requested a day-long deposition with the Cloudflare chief to question him about his company’s policies on when it is appropriate to cancel customer accounts without a court order. Depositions in the US, of course, are opportunities to question witnesses linked to a case under oath ahead of any actual court hearing.

Cloudflare opposed the deposition request, arguing that it was unnecessary, and that the topics ALS Scan wanted to cover were far too wide-ranging. But the judge overseeing the case has told Prince that he must make himself available for a deposition, though the session will only run for two hours, and ALS Scan’s lawyers will only be able to ask questions specifically related to Cloudflare’s policy on terminating (or not) piracy sites.

In a ruling published by Torrentfreak, judge Alexander MacKinnon stated that: “The court finds that ALS Scan has not made a showing that would justify a seven hour deposition of Mr Prince covering a wide range of topics. [However], a review of the record shows that ALS Scan has identified a narrow relevant issue for which it appears Mr Prince has unique knowledge and for which less intrusive discovery has been exhausted”.

It remains to be seen what is said at the deposition – and whether Prince’s answers there will basically be a re-run of his aforementioned blog post. Either way, copyright owners of all kinds will continue to watch this case closely, given how often Cloudflare is now appearing on their piracy gripe lists.