Mon Cheri Bridals, LLC v. Cloudflare, Inc.

                  UNITED STATES DISTRICT COURT                           
                NORTHERN DISTRICT OF CALIFORNIA                          

MON CHERI BRIDALS, LLC, et al.,  Case No.  19-cv-01356-VC                

          Plaintiffs,                                                    
                                 ORDER DENYING PLAINTIFFS'               
      v.                         MOTION FOR SUMMARY                      
                                 JUDGMENT AND GRANTING                   
CLOUDFLARE, INC., et al.,        DEFENDANT'S MOTION FOR                  
                                 SUMMARY JUDGMENT                        
          Defendants.                                                    
                                 Re: Dkt. Nos. 124, 133                  


    Mon Cheri Bridals and Maggie Sottero Designs sell wedding dresses online. But their 
sales numbers and brand reputations are damaged by the proliferation of counterfeit retailers that 
sell knock-off dresses using the plaintiffs’ copyrighted images. The plaintiffs have gone after the 
infringers in a range of actions, but to no avail—every time a website is successfully shut down, 
a new one takes its place. In an effort to more effectively stamp out infringement, the plaintiffs 
now go after a service common to many of the infringers: Cloudflare. The plaintiffs claim that 
Cloudflare contributes to the underlying copyright infringement by providing infringers with 
caching, content delivery, and security services. Because a reasonable jury could not—at least on 
this record—conclude that Cloudflare materially contributes to the underlying copyright 
infringement, the plaintiffs’ motion for summary judgment is denied and Cloudflare’s motion for 
summary judgment is granted.1                                             
    A party is liable for contributory copyright infringement where it “(1) has knowledge of 

1 The plaintiffs initially moved for summary judgment against the Doe defendants as well but 
abandoned this motion in their reply brief. A case management conference is scheduled for 
October 27, 2021 at 2:00 PM to discuss what’s left of the case.           
another’s infringement and (2) either (a) materially contributes to or (b) induces that 
infringement.” Perfect 10, Inc. v. Visa International Service Association, 

494 F.3d 788, 795

 (9th 
Cir. 2007). Simply providing services to a copyright infringer does not qualify as a “material 
contribution.” 

Id. at 797-98

. Rather, liability in the internet context follows where a party 
“facilitate[s] access” to infringing websites in such a way that “significantly magnif[ies]” the 
underlying infringement. Perfect 10, Inc. v. Amazon.com, Inc., 

508 F.3d 1146, 1172

 (9th Cir. 
2007); see A&M Records, Inc. v. Napster, Inc., 

239 F.3d 1004, 1022

 (9th Cir. 2001). A party can 
also materially contribute to copyright infringement by acting as “an essential step in the 
infringement process.” Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., 

658 F.3d 936, 943-44

 (9th Cir. 2011) (quoting Visa International, 

494 F.3d at 812

 (Kozinski, J., dissenting)). 
As the Ninth Circuit has recognized, the language used in these tests is “quite broad” and could 
encompass much innocuous activity if considered out of context. Visa International, 

494 F.3d at 795

. An analysis of contributory copyright infringement must therefore be cognizant of the facts 
in the key cases in which liability has been found. See Amazon.com, Inc., 

508 F.3d 1146

 (9th Cir. 
2007); Napster, Inc., 

239 F.3d 1004

 (9th Cir. 2001); see also Visa International, 

494 F.3d 788

 
(9th Cir. 2007) (declining to find contributory infringement).            
    The plaintiffs seek to impose liability based on two sets of services provided by 
Cloudflare. First, Cloudflare provides performance-improvement services, which include its 
content distribution network and caching capabilities. Together, these products improve the 
quality of a customer’s webpage, primarily by making content load faster for users. Second, 
Cloudflare provides security services by inserting itself between the requesting user and the host 
of the underlying content. As an intermediary, Cloudflare can detect suspicious traffic patterns 
and prevent attacks on a website’s host.                                  
    1. The plaintiffs have not presented evidence from which a jury could conclude that 
Cloudflare’s performance-improvement services materially contribute to copyright infringement. 
The plaintiffs’ only evidence of the effects of these services is promotional material from 
Cloudflare’s website touting the benefits of its services. These general statements do not speak to 
the effects of Cloudflare on the direct infringement at issue here. For example, the plaintiffs have 
not offered any evidence that faster load times (assuming they were faster) would be likely to 
lead to significantly more infringement than would occur without Cloudflare. Without such 
evidence, no reasonable jury could find that Cloudflare “significantly magnif[ies]” the 
underlying infringement. Amazon.com, Inc., 

508 F.3d at 1172

. Nor are Cloudflare’s services an 
“essential step in the infringement process.” Louis Vuitton Malletier, 

658 F.3d at 944

. If 
Cloudflare were to remove the infringing material from its cache, the copyrighted image would 
still be visible to the user; removing material from a cache without removing it from the hosting 
server would not prevent the direct infringement from occurring. 
     2. Cloudflare’s security services also do not materially contribute to infringement. From 
the perspective of a user accessing the infringing websites, these services make no difference. 
Cloudflare’s security services do impact the ability of third parties to identify a website’s hosting 
provider and the IP address of the server on which it resides. If Cloudflare’s provision of these 
services made it more difficult for a third party to report incidents of infringement to the web 
host as part of an effort to get the underlying content taken down, perhaps it could be liable for 
contributory infringement. But here, the parties agree that Cloudflare informs complainants of 
the identity of the host in response to receiving a copyright complaint, in addition to forwarding 
the complaint along to the host provider. 

     IT IS SO ORDERED. 
Dated: October 6, 2021                    Loo. 
                                        fe 
                                   VINCE CHHABRIA 
                                   United States District Judge