The lawsuit didn\u2019t make any headlines, at least not initially. But when Cloudflare\u00a0displayed an \u2018Error 451\u2019<\/a>\u00a0to DDL-Music users in early 2020, it was clear that something was up. Error 451 is still relatively rare and typically reserved for cases where content has been made inaccessible for legal reasons.<\/p>\n In this case, Universal had obtained a\u00a0preliminary injunction<\/a>\u00a0against Cloudflare that required the company to stop providing its CDN services to the pirate site. Failure to comply could\u2019ve invoked a fine of up to 250,000 euros or even a six-month prison sentence for Cloudflare\u2019s managing director.<\/p>\n Cloudflare was disappointed with the outcome and decided to appeal. The case eventually made its way to the Cologne Higher Regional Court, which\u00a0largely confirmed<\/a>\u00a0the liability finding in 2023. That was another setback for Cloudflare which appealed to Germany\u2019s highest court.<\/p>\n The Federal Court of Justice (Bundesgerichtshof) took on the appeal in what has become a landmark case. The Court\u2019s ruling is expected to be leading when it comes to the liability of CDN services for the copyright-infringing actions of customers.<\/p>\n Realizing the potential for broad repercussions, Germany\u2019s highest court is actively seeking advice from the EU\u2019s highest judicial body: the Court of Justice of the European Union (CJEU).<\/p>\n Specifically, it asks the EU\u2019s top court to provide guidance on two key questions that affect the potential liability of linking sites and CDN providers.<\/p>\n The questions were formally submitted earlier this year and were posted in the\u00a0Official Journal<\/a>\u00a0of the European Union this week.<\/p>\n <\/p>\n The German questions were translated into English and other languages, but not in a way that they are easy to grasp for the public.<\/p>\n The first question touches on the linking vs. hosting argument that\u2019s common in piracy disputes. In this case, DDL-Music did not host the music files itself. Instead, it provided links to third-party cyberlockers like Nitroflare.<\/p>\n The German judges seem conflicted about the definition of copyright infringement when it comes to linking.<\/p>\n Generally speaking, the German Federal Court operates under the assumption that to \u201cmake a work available\u201d to the public, the infringer must have control over the file within their own \u201caccess sphere\u201d (e.g. their website\/server).<\/p>\n However, there are also EU rulings that found linking\u00a0can sometimes<\/a>\u00a0constitute a \u201ccommunication to the public\u201d and the German court asks the CJEU to clarify: Can a site operator be liable for \u201cmaking a phonogram available\u201d if they simply hyperlink to it?<\/p>\n The second question is arguably even more complex and harder to grasp. Not just due to the legal jargon, but also because of the implications concerning the liability of CDN providers.<\/p>\n With the second question, Germany\u2019s Federal Court seeks clarification on the legal status of Cloudflare\u2019s CDN infrastructure. It effectively asks if it classifies as a hosting provider or a caching service.<\/p>\n Cloudflare sees its CDN mostly as a caching service, which operates as a neutral intermediary that should not be liable for the bits that it passes on. Universal Music, however, disagreed and pointed out that some files are cached by Cloudflare for up to a year.<\/p>\n If Cloudflare is seen as a hosting service, Germany\u2019s Federal Court would like to know if the liability criteria previously determined in the\u00a0landmark YouTube vs. Cyando<\/a>\u00a0case also apply here.<\/p>\n In that matter the CJEU ruled that platforms such as YouTube are not liable for pirated content uploaded to their service. Liability only comes into play if a service actively and deliberately contributes to the infringement.<\/p>\n Finally, if the YouTube standards don\u2019t apply, the German court wants to know exactly what criteria should be used to determine if a CDN is directly liable for the pirated content it delivers.<\/p>\n The questions are now in the hands of the CJEU, which is expected to share its view on the matter next year. Given the stakes involved, the matter will be followed closely by Internet infrastructure providers and rightsholders alike.<\/p>\n The final verdict is also expected to provide more insight into a technical debate regarding\u00a0\u201cTime to Live\u201d (TTL)<\/a>\u00a0caching settings.<\/p>\n In its referral order, the German court noted that while Cloudflare\u2019s servers could theoretically cache a file for a year or longer, this doesn\u2019t necessarily mean the company has abandoned its role as a neutral intermediary.<\/p>\n The German judges appear open to the idea that \u201ctemporary\u201d storage shouldn\u2019t be measured in time, but by its function. If a file is stored for a long time purely to improve loading times or security, it might still qualify as \u201ccaching\u201d rather than \u201chosting\u201d.<\/p>\n However, if the CJEU decides that long-term storage is indeed active hosting, Cloudflare could lose its liability shield. This would effectively require CDN services to make sure that content hosted (or linked) by customers is rendered inaccessible when rightsholders complain.<\/p>\n Source: \u00a0High Stakes, Highest Courts<\/h2>\n
![\"referred\"](\"https:\/\/torrentfreak.com\/images\/questionsreferred.png.webp)
<\/picture><\/center> <\/p>\nQ1: Storing vs. Linking?<\/h2>\n
Q2: Hosting or Caching?<\/h2>\n
Going forward<\/h2>\n
![\"TorrentFreak\"](\"http:\/\/worldjusticenews.com\/news\/wp-content\/uploads\/2016\/11\/torrentfreak.png\")
<\/a> TorrentFreak.com<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"