(Reuters) - A California Internet company ordered by a federal judge to stop providing services to a copycat version of Grooveshark, the streaming music website shut down in April by a copyright dispute, says it is being improperly thrust into an enforcement role.
The order Wednesday by U.S. District Judge Alison Nathan in Manhattan widening a preliminary injunction against the operators of the cloned Grooveshark to now include CloudFlare, Inc, “makes CloudFlare and other Internet Service Providers the copyright and trademark police for other rights holders,” the company’s general counsel, Kenneth Carter, said in an interview.
Facing potential penalties of hundreds of millions of dollars, Grooveshark shuttered itself on April 30 after four years of litigation with music labels including Sony Music Entertainment, UMG Recordings and Warner Bros Records. The Grooveshark trademark was transferred to the labels as part of the settlement.
Days later, the copycat version appeared. After the Manhattan court issued an immediate temporary injunction, the site moved twice, to Grooveshark.li. A representative of the site going by the name Shark told Reuters at the time, “It’s a war!”
Faced with what they called a global game of “Whac-A-Mole,” the labels pressed their case with Nathan, who issued a preliminary injunction against the new site’s operators on Monday. But the site, whose domain registrar was in Switzerland, remained up and running, seemingly outside the reach of the court’s authority.
Each version of the site, however, used the services of San Francisco-based CloudFlare, which optimizes the speed of websites and allows Internet users to connect to them without having to type in the numerical Internet address. On May 22, the labels sought to include CloudFlare in the injunction to stop providing these services.
CloudFlare fought back, enlisting the help of the Electronic Frontier Foundation, an Internet civil rights group. CloudFlare, which does not host websites or register their names, said in court papers filed on May 28 that its services were passive and automatic, and that even without CloudFlare, the new Grooveshark would be able to continue.
CloudFlare argued that to deny its services to the site would require it to “proactively enforce Plaintiffs’ trademark against all comers,” and that such a precedent could force everyone from infrastructure providers like AT&T and Verizon to wireless carriers to proxy servers to do the same.
“There’s no articulable rule as to who is helping (the new Grooveshark) and who’s not helping,” Carter said.
Nathan, in her order, rejected the arguments and said CloudFlare helped improve the performance of the new Grooveshark sites and must be bound by the injunction. CloudFlare then pulled its services and access to the site.
Speaking on behalf of the labels, a representative for the Recording Industry Association of America said on Thursday, “Our industry “continues to enforce our rights and protect our artists’ content in every possible way.”
The case is Arista Records LLC et al v. Vita Tkach et al, in the U.S. District Court for the Southern District of New York, No. 15-cv-3701.
For the plaintiffs: Gianni Servodidio and Kenneth Doroshow of Jenner & Block
For CloudFlare: William Harrington of Goodwin Procter and Mitchell Stoltz, Electronic Frontier Foundation