Who is and who is not needed – Newspaper Kommersant No. 28 (7473) dated 02/15/2023

Russian copyright holders block pirated content on the Internet through the courts. But a certain layer of decisions, the last of which was made recently, shows the difference between how the Internet works in practice and how the judicial system imagines it. On February 13, the Moscow City Court satisfied the claim of TNT regarding the distribution of illegal copies of the series “The Battle of Psychics” against the American Cloudflare.

A search in the file of arbitration cases makes it clear that Cloudflare is a frequent defendant in copyright cases on the Internet: since the beginning of 2022, the Moscow City Court has received more than 100 lawsuits against it. The motivational part of the last decision has not yet been published, but the previous decisions follow the same logic: judges, based on whois data (a protocol that allows you to request data about a domain from registrars), recognize Cloudflare as a host, that is, a platform where illegal content is hosted.

Those who have had to publish sites at least once may be surprised by such an interpretation. Cloudflare can’t be called a hoster: I can’t host the site on its servers directly. Cloudflare servers serve as a “layer” between the server on which the website is actually located and visitors. This helps protect against DDoS attacks and overloads, speed up content loading, and in some cases, make it easier for a site to move between servers or owners. The whois protocol and the database system that uses it have historically been conceived as something like a telephone directory. In the age of services like Cloudflare, they don’t work that way. The whois query does not provide information about the entire resource chain, but only about its first element, sometimes purely technical.

Of course, you can see the logic in the statements of the plaintiffs: since Cloudflare stores the content, albeit temporarily, it should be responsible for it. However, it is impossible to find such logic in other dubious uses of whois in Russian courts. In June 2022, Roskomnadzor presented whois data in a world court in Moscow as evidence that Google and Likeme allegedly process personal data of Russians outside the territory of the Russian Federation. Then the court fined the company 1.5 million rubles. each. But whois, even in theory, does not allow you to find out, for example, a company’s personal data processing policy or its internal network organization.

I will assume that whois stories are no exception and litigants use other technical tools for other purposes. The State Duma is already paying attention to the problem: Deputy Anton Nemkin recently spoke about the preparation of amendments that would introduce the institution of forensic IT experts in the country. A similar bill in 2018 did not reach the second reading. But since then, the number of high-profile court cases involving technology companies has grown significantly.