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Cloudflare says European Commission’s Piracy Watch List should only focus on actual piracy sites

By | Published on Thursday 19 May 2022


Internet services company Cloudflare has urged the European Commission to ensure that its Counterfeit And Piracy Watch List focuses on websites that directly violate intellectual property laws, rather than otherwise legitimate businesses that are accused by copyright owners of not doing enough to help combat online piracy. You know, like Cloudflare.

The Counterfeit And Piracy Watch List is basically the European version of the Notorious Markets list that the US government produces each year which runs through all the websites that are currently annoying copyright owners – either because they are overt piracy operations or because they facilitate piracy in some way.

With both lists, copyright owners can make submissions suggesting what websites and platforms should be featured. With the EC working on its next list, the International Federation Of The Phonographic Industry made such a submission earlier this year.

After talking about a stack of file-sharing, stream-ripping and cyber-locker operations that facilitate piracy – and griping about various social media type platforms that don’t do enough to license music and/or help copyright owners remove infringing content – the IFPI’s submission then turned to internet companies that provide services to some of the piracy sites mentioned elsewhere in its document.

It wrote: “Several intermediaries have been named by IFPI in past submissions and we continue to have concerns about the services specifically mentioned. The focus of this year’s submission is Cloudflare given its involvement in a high number of the music industry’s priority sites”.

Although the services providing by Cloudflare are entirely legitimate, IFPI noted that some of those services can “provide anonymity to the owners and/or operators of the websites that use its services. This feature is particularly desirable for the operators of pirate websites, and others engaged in unlawful activity”.

The IFPI – and other rights-holder groups – would like Cloudflare to be much more proactive in dealing with piracy operations that are using its services. That would include making it easier to identify the people behind such operations, and having a better ‘know your customer’ system in place, verifying the identity of new clients and the nature of their operations before providing any services.

“Cloudflare should refuse to provide services to customers who fail to provide accurate contact information”, the IFPI wrote in its submission. “Cloudflare should also obtain details about the activities that the customers are planning to undertake. It should not provide services to customers that engage in illegal activities or violate Cloudflare’s policies, and it should conduct further checks with respect to activities that fall under particularly risky categories”.

However, in its submission, published by Torrentfreak, Cloudflare argues that these demands go someway beyond its legal responsibilities, and that the Counterfeit And Piracy Watch List should focus on companies and websites that violate the law, rather than businesses who don’t voluntarily agree to comply with the demands of copyright owners.

It writes: “The creation of a Watch List suggests that the European Commission is evaluating whether entities have failed to meet their legal obligations and has identified entities that are truly bad actors. Given this reality, [the EC] must apply principled and fair legal standards in determining which entities to include on the Watch List”.

“The Commission should not”, it adds, “issue a report – even an informal one – that is simply a mechanism for particular stakeholders to air their grievances that entities are not taking particular voluntary action to meet their concerns or to advocate for new policies”.

“The Commission’s inclusion of allegations of this type on its Watch List has the potential to inappropriately suggest that the Commission endorses such actions, a view that could influence ongoing legal discussions and policy debates”, it goes on. “Our view is that the Commission’s staff document and Watch List should be limited to Commission-verified allegations of illegal behaviour, based on principled and fair legal standards”.

So there you go. It remains to be seen what position the EC takes regarding including the likes of Cloudflare on its next Counterfeit And Piracy Watch List.