Carole,

I don’t know if I understand your question. As I’m sure you know, the DMCA has three different safe-harbor provisions: 512(a), 512(b) and 512(c).

As I already noted, 512(a) is basically intended to protect “networks”, so if you only provide a WIRE that someone uses to connect to infringing material, you get a safe-harbor if someone uses your wires to infringe. 512(b) deals with “system caching” which is similar, but may involve infringing content that is only stored temporarily.

As you noted, 512(a) and 512(b) do not require a designated agent. This makes sense because a company that only provides wires/connections or temporary caching of data can’t take down infringing content since no such content is actually stored on their network.

512(c) is mainly focused on companies that DO store data provided by users, and obviously 512(c) does require the hosting company to have a designated agent.

As I understand it, Cloudflare offers several different types of service — one is simply IP obfuscation which they label “DDoS Protection”, and you’re right — if a website is using Cloudflare to mask their true IP address, then it may be impossible to determine (without asking Cloudflare) who/where the actual host is for that site.

But that doesn’t mean you can’t send them a 512(c) notice. For one thing, if you see infringing content on XYZ.com, then you simply need to locate the designated agent for XYZ.com. Of course, 512(c)(3) requires the agent’s contact information to be listed on the website itself and also in the copyright office’s DMCA agent directory, so if you can’t find the information in either place, that means XYZ.com is per se excluded from the safe-harbor of 512(c)(3), so there’s really no point in sending them a takedown notice (you can simply sue them, or ignore the infringement).

If you still want to locate the host for XYZ.com but the IP is concealed by Cloudflare, then all you have to do is obtain a 512(h) subpoena and send it to Cloudflare. This is cheap, easy, and effective — Cloudflare will give you the site’s true IP address which you can then use to send a 512(c) notice to the host (which may not matter if they are located outside the USA).

In any case, the point I was trying to make in my original comment is simply this — the DMCA has certain technical requirements that you MUST comply with, otherwise your takedown notice may be invalid and ineffective. One of the most obvious requirements is that you must send your 512(c) notice to the designated agent of the site/host where the infringing content is located. If you send a 512(c) notice to the wrong place, then it’s simply invalid…even if it ends up getting forwarded to the correct place.

Hi David,
I enjoy reading the “owner’s dog” ;-). An additional question, if I may. I agree with the issue with DMCA designated agent for the case of storage (= hosting provider). In the case of Content Delivery Network such as Cloudflare-type, do you agree to apply 17 U.S. Code § 512 (b) (2) (E) as it is a cache solution ? Therefore for such cases, there is no designated agent required. In addition,due to IP obfuscation with the CDN, it is impossible to know the originated IP (and therefore originated hosting company, as CDN IP is given throught WHOIS requests). Because if you refer to 17 U.S. Code § 512 (c) instead for Cloudflare-type providers, and if they have a DMCA designated agent, they could not in my view limit action to merely forward the notice to originated hosting company.

This decision says: “ALS sued Steadfast, a data-center service provider that leases servers to its many customers, including Imagebam’s owner, so that they can host data on the Internet.” If Steadfast owns the server where infringing content is hosted, then it’s not within the scope of 512(a), but it should be covered by 512(c) assuming it has otherwise complied with the requirements of that section.

The annoying thing about this case is that it deals with a legal unicorn — a DMCA notice that was sent to Steadfast and then forwarded to its customer. This practice (which is extremely common) drives me INSANE. As I always tell clients: “There is no such thing as a valid forwarded DMCA notice.” This is a fiction. It does not exist.

Here’s why — 17 USC 512(c)(3)(A) tells us EXACTLY what is required for a notice to be effective: “To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider … .”

GOT THAT? If you are unhappy with infringing content on XYZ.com, then you MUST send a valid takedown notice to the designated agent of XYZ.com. To be valid, the notice MUST GO TO THE DESIGNATED AGENT for XYZ.com. A notice sent to any other place is NOT VALID (at least not to the extent you’re trying to strip XYZ.com of its safe harbor under 512(c)(3)).

To recap: if you want to send a valid notification of claimed infringement, your notice MUST go to the site’s designated DMCA agent (meaning the person whose contact information is registered with the U.S. Copyright Office). PERIOD. Any notice sent to any other person is NOT VALID and has no legal effect on XYZ.com.

I shouldn’t need to say this, but I will. A notification of claimed infringement is NOT VALID if sent to:
*The site’s owner.
*The site’s outside litigation counsel.
*A friend of the site’s owner.
*A neighbor of the site’s owner.
*The owner’s cousin.
*The owner’s dog.
*The power company that provides electricity to the site’s servers.
*Any company that provides service to the site (i.e., Cloudflare, etc.)

Unless the designated agent for XYZ.com happens to also be in one of these other roles (you certainly could designate a dog as your agent), any takedown notice sent to anyone on the above list is invalid/void/meaningless.

Despite this, services like Cloudflare routinely forward DMCA notices to their customers, apparently because they think this is helpful. It is not.

Sorry if the comment comes across as heated, but I’ve spent too many years trying to explain to both clients and service providers why a “forwarded” DMCA notice is “not a thing”.