If Flock truly believed that the domain name infringes on their trademark, they would file an ICANN UDRP complaint instead of Cloudflare and Hetzner abuse reports.
But they don't, because the former would require them to perjure themselves, and the latter just requires them to lie to a hosting company.
I wonder if Flock + Cyble can be sued for fraud. There are 5 elements in a fraud:
Cloudflare would have to bring that suit since they were the ones defrauded. The site owners probably can't sue Cloudflare because of their contract. So the site owners probably have to go basic "tortious interference" and be ready to show actual damages.
No, if the site owners have been harmed by Flock + Cyble knowingly filing a false takedown notice then they can sue Flock + Cyble. If Cloudflare's reputation has also been harmed then they could sue Flock + Cyble as well.
Tortious interference with contract, cut and dry.
> Cloudflare would have to bring that suit
At first that seems pretty unlikely, but I could see them wanting to nip this in the bud so it doesn't become more common.
The "resulting damages" is pretty small though, they just had to move off of cloudflare. I'm not sure it would be worth it, especially if the other side doesn't end up paying their legal costs.
You would need damages
False accusation of criminal behavior is defamation and in many US states such accusations are assumed to be damaging. No evidence of damage is needed.
Knowingly filing false DMCA claims will also perjure them.
However, ICANN has a whole procedure they follow where complaints are fact-checked, whereas DMCA takedowns put an unreasonable burden on hosting providers that requires immediate action, and many hosting providers will take such action automatically to protect themselves.
I doubt they care about perjury. They care about results, and the DMCA gets them exactly that.
The phishing reports are interesting, providers aren't necessarily required to act as fast on those. Although, I suspect companies like Cloudflare who get used by countless phishers will probably also set up some kind of automated anti phishing system.
>Knowingly filing false DMCA claims will also perjure them.
You are confusing false claims with filing DMCA requests on behalf of someone you don't have permission from.
>and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed
A false DMCA request is misrepresentation.
Not one single person in the history of the DMCA has been prosecuted for perjury related to filing a DMCA claim.
Cloudfare and Hetzner should see this vulnerability of their own making and DO SOMETHING about it.
Cloudflare is becoming the great firewall of America more and more every day
>they would file an ICANN UDRP complaint
Those take on the order of months to go through. Even if they did so, you wouldn't notice until much later. Meanwhile cloudflare and hetzner are faster. If you want to reduce harm by taking down a site you can't just let it stay up for weeks while the ICANN process plays out.
> But they don't, because the former would require them to perjure themselves, and the latter just requires them to lie to a hosting company.
Doesn't stop anyone with DMCA... DMCA is coming up on almost three decades of being a law, and requires statements made under penalty of perjury.
However many millions (likely billions) of DMCA takedowns issued, who knows how many false/bad faith... I wonder how many have led to prosecutions for perjury, even when filing tens of thousands, en masse...
No need to wonder, the answer is simple. Starts with a "Z" and ends in "ero".