‘Daily Stormer’ Termination Haunts Cloudflare in Online Piracy Case

Last month Cloudflare CEO Matthew Prince decided to terminate the account of controversial neo-Nazi site Daily Stormer.

“I woke up this morning in a bad mood and decided to kick them off the Internet,” he announced.

While the decision is understandable from an emotional point of view, it’s quite a statement to make as the CEO of one of the largest Internet infrastructure companies. Not least because it goes directly against what many saw as Cloudflare’s core values.

For years on end, Cloudflare has been asked to remove terrorist propaganda, pirate sites, and other controversial content. Each time, Cloudflare replied that it doesn’t take action without a court order. No exceptions.

In addition, Cloudflare repeatedly stressed that it was impossible for them to remove a website from the Internet, at least not permanently. It would only require a simple DNS reconfiguration to get it back up and running.

While the Daily Stormer case has nothing to do with piracy or copyright infringement, it’s now being brought up as important evidence in an ongoing piracy liability case. Adult entertainment publisher ALS Scan views Prince as a “key witness” in the case and wants to depose Cloudflare’s CEO to find out more about his decision.

“Mr. Prince’s statement to the public that Cloudflare kicked neo-Nazis off the internet stand in sharp contrast to Cloudflare’s testimony in this case, where it claims it is powerless to remove content from the Internet,” ALS Scan writes.

The above is part of a recent submission where both parties argue over whether Prince can be deposed or not. Cloudflare wants to prevent this from happening and claims it’s unnecessary, but the adult publisher disagrees.

“By his own admissions, Mr. Prince’s decision to terminate certain users’ accounts was ‘arbitrary,’ the result of him waking up ‘in a bad mood,’ and a decision he made unilaterally as ‘CEO of a major Internet infrastructure corporation’.

“Mr. Prince has made it clear that he is the one who determines the circumstances under which Cloudflare will terminate a user’s account,” ALS Scan adds.

For its part, Cloudflare says that the CEO’s deposition is not needed. This is backed up by a declaration where Prince emphasizes that he has no unique knowledge on the company’s DMCA and repeat infringer policies, issues that directly relate to the case at hand.

“I have no unique personal knowledge regarding Cloudflare’s DMCA policy and procedure, including its repeat infringer policies, or Cloudflare’s published Terms of Service,” Prince informs the court

Prince’s declaration

The adult publisher, however, harps on the fact that the CEO arbitrarily decided to remove one site from the service, while requiring court orders in other instances. They quote from a Wall Street Journal (WSJ) article he wrote and highlight the ‘kick off the internet’ claim, which contradicts earlier statements.

Cloudflare’s lawyers contend that the WSJ article in question was meant to kick off a conversation and shouldn’t be taken literally.

“The WSJ Article was intended as an intellectual exercise to start a conversation regarding censorship and free speech on the internet. The WSJ Article had nothing to do with copyright infringement issues or Cloudflare’s DMCA policy and procedure.

“When Mr. Prince stated in the WSJ Article that ‘[he] helped kick a group of neo-Nazis off the internet last week,’ his comments were intended to illustrate a point – not to be taken literally,” Cloudflare’s legal team adds.

The deposition of Trey Guinn, a technical employee at Cloudflare, confirms that the company doesn’t have the power to cut a site off the Internet. It further suggests that the entire removal of Daily Stormer was in essence a provocation to start a conversation around freedom of speech.

From Guinn’s deposition

Still, since the lawsuit in question revolves around terminating customers, ALS Scan wants to depose Price to find out exactly when clients are terminated, and why he decided to go beyond Couldflare’s usual policy.

“No other employee can testify to Mr. Prince’s decision-making process when it comes to terminating a user’s access. No other employee can offer an explanation as to why The Daily Stormer’s account was terminated while repeat infringers’ accounts are allowed to remain.

“In a case where Mr. Prince’s personal judgment appears to govern even over Cloudflare’s own policies and procedures, Cloudflare cannot meet its heavy burden of demonstrating why he should not be deposed,” ALS Scan’s lawyers add.

To be continued.

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