Nhentai ‘Pirate’ Site Wants Court to Quash ‘Improper’ Cloudflare DMCA Subpoena

Internet infrastructure service Cloudflare serves millions of customers around the globe, providing various connectivity and security features.

When it comes to DMCA takedown requests, the company has always drawn a clear line; when it doesn’t store any content for a customer, it will simply forward DMCA takedown requests to the customer’s hosting company.

Ideally, rightsholders would like Cloudflare to take a more active stance. Since popular pirate sites, including The Pirate Bay, use the CDN service, they argue it would be helpful if Cloudflare disabled access to infringing content though its platform.

Cloudflare, however, sees itself as a ‘mere conduit’ service that merely passes on bits. This means that it is not required to take action against third-party infringements directly, unless content is permanently stored on its servers, which is rare.

DMCA Subpoena

Rightsholders are well aware of Cloudflare’s stance. While there have been plenty of complaints in the past, the status quo remains. Groups such as the Alliance of Creativity and Entertainment (ACE) still send DMCA takedown notices, but that’s mostly as a prelude to sending §512(h) DMCA subpoenas.

Grounded in the same law, DMCA subpoenas allow rightsholders to request the personal details of Cloudflare customers who are allegedly engaged in pirating activities. These subpoenas don’t require judicial oversight and Cloudflare generally complies with them, handing over customer data.

Earlier this month, a seemingly obscure DMCA subpoena request was submitted at a California federal court. The request came from J18 Publishing, the owner of Doujin.io. With the subpoena, J18 hopes to uncover the identity of the alleged operator of pirate site Nhentai.net.

Nhentai is by no means a small site. With more than 70 million monthly visits, the free hentai manga and doujinshi reader has a sizable audience. Understandably, rightsholders would like to know who’s running the site.

As is often the case, a court clerk swiftly signed off on the subpoena paperwork, requiring Cloudflare to comply. In this case, however, that’s not going to be straightforward.

Improper

A few days after the DMCA subpoena was issued, lawyers representing Nhentai slammed on the brakes. They don’t want any personal data to be disclosed and argue that the subpoena should have never been granted.

Nhentai asks the court to quash the subpoena for several reasons. For one, it argues that these DMCA subpoenas are not intended for use against companies that operate as mere conduit providers.

In its defense, Nhentai cites several precedents where courts have concluded that DMCA subpoenas don’t apply to mere conduit services. This includes the RIAA vs. Verizon case.

“In analyzing the issue in a very detailed fashion, Courts have quashed §512(h) subpoenas where they were served on a party that was not ‘engaged in storing on its servers material that is infringing or is the subject of infringing activity’,” Nhentai writes, adding another example.

“The D.C. Circuit further held that ‘§512(h) does not authorize the issuance of a subpoena to an ISP acting as a mere conduit for the transmission of information sent by others’.”

Mere Conduit

As highlighted earlier, Cloudflare has clearly positioned itself as a ‘mere conduit’ provider under the DMCA. Nhentai argues the same, and stresses that DMCA subpoenas are not applicable for that reason.

“Cloudflare is a §512(a) ISP that acts only as a conduit with respect to Nhentai.net, and accordingly, it is not properly subject to subpoena under §512(h). Specifically, images from Nhentai.net never pass through or are stored on Cloudflare servers in any form.”

Nhentai further notes that the subpoena is too broad, arguing that the owners of the domain name are not the infringers. In addition, the subpoena would violate the owners’ right to anonymous speech.

Thus far, Cloudflare itself hasn’t objected to DMCA subpoenas, and this case is no exception. Courts have recently quashed DMCA subpoenas directed at mere conduit ISPs, reiterating that they don’t apply to companies that store no content, so it will be interesting to see how Nhentai’s challenge pans out.

Fringe Case, Landmark Decision?

For now, the California federal court has stayed the matter, meaning that Cloudflare doesn’t have to comply with the subpoena. Meanwhile, J18 Publishing has two weeks to argue why it should be granted after all.

While Nhentai operates in a fringe corner of the broader piracy landscape, this case could have far-reaching consequences. If the court quashes the subpoena, similar efforts from other mainstream rightsholder groups, including ACE/MPA, may have to be reevaluated too.

In recent years, DMCA subpoenas have become one of the primary tools in the anti-piracy toolbox, so the outcome of this case may eventually turn out to be a landmark decision.

Given what’s at stake, it’s possible that other rightsholders may want to intervene in the matter, and Cloudflare may want to share its thoughts on the matter too.

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A copy of Nhentai’s motion to quash the DMCA subpoena is available here (pdf)

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