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German record industry welcomes latest court ruling in Cloudflare case

By | Published on Tuesday 20 October 2020


The Higher Regional Court in Cologne has confirmed a ruling made in a lower court in the German city earlier this year regarding the liabilities of internet services firm Cloudflare for the copyright infringing ways of some of its customers. The technology company is obliged to cut off services from piracy site DDL-Music, in order to avoid being held liable for the copyright infringement that occurs on that site.

Cloudflare has long resisted efforts by the entertainment industry to make it responsible for policing its clients’ activity, with record labels and movie companies reckoning that the firm should look out for copyright infringing sites using its platform, or at the very least take action against those sites when made aware of them by copyright owners. For its part, Cloudflare generally argues that it is only obliged to act against an allegedly infringing client when told to do so by a court.

It was with that in mind that Universal Music in Germany went legal against Cloudflare in relation to its customer DDL-Music, which had been facilitating access to unlicensed tracks by German musician Sarah Connor. Cloudflare, the major argued, allowed DDL-Music to mask its real location. Given that Cloudflare was helping a piracy operation, it should also be held liable for the infringement DDL-Music was facilitating, unless it agreed to stop providing services to the piracy site.

Back in February this year, the Cologne District Court basically concurred with the record company. An injunction followed ordering Cloudflare to block DDL-Music, with the threat of a 250,000 euro fine or jail time for the firm’s Managing Director if it didn’t comply.

Earlier this month Cologne Higher Regional Court upheld that decision. On a practical level, the higher court ruling isn’t so important, because after Cloudflare complied with the original injunction DDL-Music switched service providers. However, representatives for the German record industry say that the higher court ruling strengthens their position to the effect that companies like Cloudflare are obliged to act against copyright infringers among there client bases.

After more details about the judgement were published last week, Florian Drücke of German record industry trade group BVMI said: “The decision of the Cologne Higher Regional Court strengthens the position of rights holders in an important area and provides a clear signal: A service that helps others to evade legal action through anonymisation is also illegal”.

The ruling, he went on, was another success for the music industry in its battle against online operations that “cause considerable damage to creators and their business partners, and whose business models are based on generating considerable income with third-party content without acquiring licenses for that content”.