Good And Bad News On Attempts To Implicate DNS Services For Copyright Infringement At The Domains They Resolve
Two years ago Techdirt wrote about an attempt by Sony Music in Germany to implicate Quad9, a free anycast DNS platform (Cloudflare has technical details on what recursive" means in this context), in copyright infringement at the domains it resolves. That was bad news for at least two reasons. First, because Quad9 is operated by the Quad9 Foundation, a Swiss public-benefit, not-for-profit organization, whose operational budget comes from sponsorships and donations. It aims to protect tens of millions of users around the world from malware and phishing, receiving nothing in return. More generally, success in this lawsuit would create a terrible precedent for blaming a service that is part of the Internet's basic plumbing for what passes through its pipes.
Unfortunately, the Regional Court in Hamburg, where the case was heard, issued an interim injunction ordering Quad9 to cease resolving the names of sites that Sony Music alleged were infringing on its copyright. A more recent Techdirt post noted that Quad9 had appealed to the Hamburg Higher Regional Court against the lower court's decision. Around this time the Regional Court in Leipzig handed down another ruling against the company. Quad9 said that it would be appealing to the Dresden Higher Court against that decision. The good news is that the court in Dresden has now ruled in favor of Quad9. A blog post by Quad9 summarizes what happened:
The appeal with the Higher Regional Court in Dresden follows a decision by the Regional Court in Leipzig, in which Sony prevailed, and Quad9 was convicted as a wrongdoer. Before that, Sony successfully obtained a preliminary junction against Quad9 with the Regional Court in Hamburg. The objection against the preliminary injunction by Quad9 was unsuccessful, and the appeal with the Higher Regional Court in Hamburg was withdrawn by Quad9 since a decision in the main proceeding was expected to be made earlier than the conclusion of the appeal in the preliminary proceedings.
That's great news, since it confirms that Quad9 benefits here from the liability privileges as a mere conduit". Also good news is the court's ruling that the case cannot be taken to a higher court and their decision is the final word in this particular case." Except, as Quad9 explains, it's not quite over yet:
Sony may appeal the appeal closure via a complaint against the denial of leave of appeal and then would have to appeal the case itself with the German Federal Court. So while there is still a possibility that this case could continue, Sony would have to win twice to turn the decision around again.
There's also a situation in which a DNS resolver might still be required to block a domain:
it is possible that a DNS resolver operator can be required to block as a matter of last resort if the claiming party has taken appropriate means to go after the wrongdoer and the hosting company unsuccessfully. Such measures could be legal action by applying for a preliminary injunction against a hosting company within the EU. These uncertainties still linger, and we expect that this ongoing question of what circumstances require what actions, by what parties, will continue to be argued in court and in policy circles over the next few years.
Moreover, despite this clear win in Germany, Quad9 has been served with another demand (from media companies once more), this time to block domain names because of alleged copyright infringement in Italy:
Italian legal representatives have presented us with a list of domains and a demand for blocking those domains. Now we must again determine the path to take forward fighting this legal battle, in another nation in which we are neither headquartered nor have any offices or corporate presence.
As to how these legal actions in Germany and Italy can be brought in countries where Quad9 has no corporate presence, the answer is something called the Lugano Convention. And to end on a more positive note, another major DNS service provider, Cloudflare, has also won a legal battle in Germany:
A recent decision from the Higher Regional Court of Cologne in Germany marked important progress for Cloudflare and the Internet in pushing back against misguided attempts to address online copyright infringement through the DNS system. In early November, the Court in Universal v. Cloudflare issued its decision rejecting a request to require public DNS resolvers like Cloudflare's 1.1.1.1. to block websites based on allegations of online copyright infringement. That's a position we've long advocated, because blocking through public resolvers is ineffective and disproportionate, and it does not allow for much-needed transparency as to what is blocked and why.
Although these victories are welcome, they are hard won. Moreover, the battles between deep-pocketed media companies and not-for-profit organizations like Quad9 are inherently unbalanced. Quad9 itself admits:
Quad9 can only have a few legal fronts open at once - we are nearly entirely dedicated to operational challenges of running a free, non-profit recursive resolver platform that protects end users against malware and phishing. We are not a for-profit company with lawyers on retainer.
And that's why the lawsuits keep coming - in the hope that one day the people defending the Internet, as Quad9 and Cloudflare have done with success, run out of money or management time to devote to these fights. It's a risk that has not gone away, despite these recent wins.
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