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Broadest US Pirate Site Injunction Rewritten/Tamed By Cloudflare

cloudflareWhen video and broadcasting companies take on their pirate site competitors it’s only natural that once they have their day in court, measures are taken to ensure the sites don’t just simply come back online.

While even airtight injunctions can’t work miracles, they do make it easier to disrupt a pirate site’s business to the point that it may not be worth carrying on. On the other hand, an overbroad injunction has the potential to disrupt the business of third-party services too, despite them having little to do with the infringement or any reasonable way to predict it.

Big Injunction, Big Tech Problems

That’s exactly what happened when several Israel-based video companies won three lawsuits and injunctions to shut down three streaming/IPTV platforms. The injunctions granted extreme powers, from residential ISP blocking to almost any other action the plaintiffs deemed fit to keep the sites offline.

Almost immediately that led to friction with third-party service providers and the situation only worsened when a concerned Cloudflare found itself threatened with contempt of court for non-compliance. The CDN company fought back with support from Google and EFF and that led the parties back to the negotiating table.

Filings in the case last week suggested an acceptance by the plaintiffs that the injunction cannot be enforced in its present form. The parties promised to work on a new injunction to address both sides’ concerns and as a result, a new proposal now awaits the court’s approval.

Original Injunction Undergoes Surgery

The permanent injunction handed down against pirate IPTV platform Israel.tv began in conventional fashion by permanently restraining its operators (and anyone acting in concert or participation with them) from doing anything in future that would breach the plaintiffs’ rights.

However, by also stating that the same applies to third-party services that may come into contact with the defendants’ operations, now or anytime in the future, the plaintiffs started rubbing up against companies like Cloudflare, which rejects any idea they’re ‘acting in concert’ with pirates. As a result, the proposed amended injunction looks much less threatening.

The first change comes with the removal of powers related to enforcement against “third parties providing services used in connection with Defendants’ operations.” And where the injunction initially referred to those “Operating and/or hosting Defendants’ Infringing Website,” it now reads “Operating Defendants’ Infringing Website.”

But that’s just the beginning.

Major ISPs No Longer Required to Block Pirate Sites

Before Cloudflare got involved, the first obviously broad part of the injunction was a requirement for every single ISP in the United States to block the three IPTV services, not just at their current domains but also any they might use in the future. All blocked domains were also set to be diverted to an anti-piracy landing page, as a deterrent message.

The entire section laying out the requirements and terms for such blocking has now been completely removed from the proposed amended injunction. No ISP blocking in any form is requested but the deletions go much further than just that.

The original also ordered all third parties “used in connection” with the pirate sites not to do so again, now or in the future. Those third parties included ISPs, webhosts, CDNs, DNS and VPN providers, domain name entities, advertising partners, search engines, payment processors, banks, credit card companies, plus many, many more. That section has also been removed.

Dealing With New Domains

The original injunction not only gave the plaintiffs broad powers to take action against the pirate sites’ existing domains but also any new domains registered by the defendants to replace those already seized. In common with other aspects of the order, including those that granted authority over companies like Cloudflare, there was a complete lack of judicial oversight.

The plaintiffs believed they could issue an order, without supporting evidence, and third parties must comply. In the proposed amended injunction, that is not the case. When the plaintiffs identify ‘newly detected domains’ they will be required to notify the court and request permission to further amend the injunction. When/if granted, that order will have to be served on registries and registrars.

Previously, the injunction required domain companies to make domains inactive within seven days and configure them to divert to the video companies’ anti-piracy page. That requirement has also been removed while a new section explains that if a registry or registrar wants to object to a disabling order, they are allowed to do so, without being held in contempt of court.

Continuing the theme that action can be taken against piracy-facilitating domains but only when the court has knowledge and oversight, the proposed amended injunction details an updated list of specific domains, including the following:

israel.tv, israeli.tv, israeltv.com, israel-tv.xyz, israeltv.to, t2m.is.isr, t2m.ac, isr.dev and zira.to. Newer additions include israeltv.se, israeltv.nu, israeltv.su, isratv.ru, israeltv.am, israeltv.la, israeltv.bz, israeltv.hk, israetv.eu, israeltv.is and sini.la.

Interestingly, the proposed injunction also prohibits the operators of israel.tv (and related domains) from using specific applications listed on Google Play that facilitate access to infringing content owned by the plaintiffs. The pirate operators are also restrained from accessing a Facebook account (‘TvFromIsrael’) and various other messaging channels previously used to provide customer support and new domain information.

Entire Section Dedicated to Cloudflare

With the contempt of court issue behind them, Cloudflare and the plaintiffs appear to have settled their differences. An entire section in the injunction dedicated to Cloudflare suggests that the CDN company is indeed prepared to help the video companies but they’ll have to conform to certain standards.

Before even contacting Cloudflare they’ll first need to make “reasonable, good faith efforts to identify and obtain relief for the identified domains from hosting providers and domain name registries and registrars.”

If the plaintiffs still need Cloudflare’s assistance, Cloudflare will comply with requests against domain names listed in this injunction and future injunctions by preventing access to the following:

Pass-through security services, content delivery network (CDN) services, video streaming services, and authoritative DNS services, DNS, CDN, streaming services, and any related services

An additional note states that the plaintiffs acknowledge that Cloudflare’s compliance “will not necessarily prevent the Defendants from providing users with access to Defendants’ infringing services.”

Given the agreement on the terms, the amended injunction will likely be signed off by the court in the coming days. Service providers everywhere will breathe a sigh of relief while rightsholders will have a template for similar cases moving forward.

The proposed amended injunction documents can be found here (1,2,3,4,5 pdf)

From: TF, for the latest news on copyright battles, piracy and more.

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