122 F. Supp. 3d 32
S.D.N.Y.2015Background
- May 13, 2015 TRO against Vita Tkach and Does 1-10 targeting Grooveshark copycats and related domain names.
- Plaintiffs sought and obtained a TRO against third parties providing services connected to the Defendants’ sites, including domain names and hosting services.
- On May 22, 2015 Plaintiffs moved for a supplemental order to compel CloudFlare, Inc. to comply with the TRO; briefing followed.
- On June 1, 2015 the Court entered a preliminary injunction substantially identical to the TRO, binding CloudFlare if the TRO applied.
- CloudFlare provided authoritative DNS and performance-optimizing services for several Grooveshark domains and acknowledged TRO receipt before continuing service to the sites.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CloudFlare is in active concert or participation with Defendants. | CloudFlare owns/operates the DNS server and optimizes the sites, aiding infringement. | CloudFlare’s role is passive; it merely provides generic services. | CloudFlare is in active concert or participation; bound by TRO and injunction. |
| Whether CloudFlare must comply with the TRO despite its passive role. | Compliance necessary to prevent violation of injunction. | Passive service cannot be enjoined; not necessary for operation. | Yes, CloudFlare bound by TRO and injunction. |
| Whether the Court should award attorney’s fees for contempt. | Fees justified for willful contempt. | No willful violation; no fee award. | No attorney’s fees awarded; future compliance warned. |
Key Cases Cited
- Lindland v. U.S. Wrestling Ass’n, 227 F.3d 1000 (7th Cir.2000) (active participation inquiry focuses on actual conduct against injunctions)
- Adcor Indus. v. Bevcorp, 411 F.Supp.2d 778 (N.D.Ohio 2005) (aids and abets standard for concert or participation)
- Blockowicz v. Williams, 630 F.3d 563 (7th Cir.2010) (distinguishes on-injunction third-party enforcement; fact pattern differs)
- The North Face Apparel Corp. v. Fujian Sharing Imp., No. 10 Civ. 1630(AKH), slip op. (S.D.N.Y. 2011) (courts address third-party services facilitating injunction violations)
- Alemite Mfg. Corp. v. Staff, 42 F.2d 832 (2d Cir.1930) (cannot enjoin the world at large; aids/abetting others can)