Another German Court Says The DNS Service Quad9 Is Implicated In Any Copyright Infringement At The Domains It Resolves
from the cluelessness-über-alles dept
Back in September 2021 Techdirt covered an outrageous legal attack by Sony Music on Quad9, a free, recursive, anycast DNS platform. Quad9 is part of the Internet’s plumbing: it converts domain names to numerical IP addresses. It is operated by the Quad9 Foundation, a Swiss public-benefit, not-for-profit organization. Sony Music says that Quad9 is implicated in alleged copyright infringement on the sites it resolves. That’s clearly ridiculous, but unfortunately the Regional Court of Hamburg agreed with Sony Music’s argument, and issued an interim injunction against Quad9. The German Society for Civil Rights (Gesellschaft für Freiheitsrechte e.V. or “GFF”) summarizes the court’s thinking:
In its interim injunction the Regional Court of Hamburg asserts a claim against Quad9 based on the principles of the German legal concept of “Stoererhaftung” (interferer liability), on the grounds that Quad9 makes a contribution to a copyright infringement that gives rise to liability, in that Quad9 resolves the domain name of website A into the associated IP address. The German interferer liability has been criticized for years because of its excessive application to Internet cases. German lawmakers explicitly abolished interferer liability for access providers with the 2017 amendment to the German Telemedia Act (TMG), primarily to protect WIFI operators from being held liable for costs as interferers.
As that indicates, this is a case of a law that is a poor fit for modern technology. Just as the liability no longer applies to WIFI operators, who are simply providing Internet access, so the German law should also not catch DNS resolvers like Quad9. The GFF post notes that Quad9 has appealed to the Hamburg Higher Regional Court against the lower court’s decision. Unfortunately, another regional court has just handed down a similar ruling against the company, reported here by Heise Online (translation by DeepL):
the Leipzig Regional Court has sentenced the Zurich-based DNS service Quad9. On pain of an administrative fine of up to 250,000 euros or up to 2 years’ imprisonment, the small resolver operator was prohibited from translating two related domains into the corresponding IP addresses. Via these domains, users can find the tracks of a Sony music album offered via Shareplace.org.
The GFF has already announced that it will be appealing along with Quad9 to the Dresden Higher Regional Court against this new ruling. It says that the Leipzig Regional Court has made “a glaring error of judgment”, and explains:
If one follows this reasoning, the copyright liability of completely neutral infrastructure services like Quad9 would be even stricter than that of social networks, which fall under the infamous Article 17 of the EU Copyright Directive,” criticizes Felix Reda, head of the Control © project of the Society for Civil Rights. “The [EU] Digital Services Act makes it unequivocally clear that the liability rules for Internet access providers apply to DNS services. We are confident that this misinterpretation of European and German legal principles will be overturned by the Court of Appeals.”
Let’s hope so. If it isn’t, we can expect companies providing the Internet’s basic infrastructure in the EU to be bombarded with demands from the copyright industry and others for domains to be excluded from DNS resolution. The likely result is that perfectly legal sites and their holdings will be ghosted by DNS companies, which will prefer to err on the side of caution rather than risk becoming the next Quad9.
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Filed Under: article 17, copyright, digital services act, dns, eu copyright directive, felix reda, germany, hamburg, leipzig, liability, quad9, sony music, switzerland, wifi
Companies: quad9, sony music
Comments on “Another German Court Says The DNS Service Quad9 Is Implicated In Any Copyright Infringement At The Domains It Resolves”
Why bother with the lawsuits, recording industry?
I don’t get why the Recording Industry still thinks it needs to go after piracy considering how much money they’re making with streaming services. They’ve actually seen an increase in their revenue, all the while the Pirate Bay is still up there. Maybe they should’ve settled this a long time ago and enjoy the riches they’re getting with Spotify, et al…
Re:
you are suggesting they stop engaging in their fetish, and live “unfulfilled” lives?
Re: it happened
They sat down and did the figures.
No transport costs
No Hard materials like records and tape and CD/DVD/BR
No adverts
No trying to figure out WHO and WHERE to distribute for best sales.
Only thing left is Mixing studio, but Many of the bands and groups are doing it themselves.
Some are bypassing the Big corps and making deals with the distributors.
Re:
The cruelty and control IS the reason.
Re:
Because they’re not making all of the money.
Re:
Turn that around: no matter how badly the MAFIAA behave, they still seem to get customers throwing money at them, and few if any major artists have refused to deal with them because of it (no, bitching on the internet about how their business partners suck doesn’t count). So why change?
And the copyright maximalists rejoince, for they are one step closer to making the Internet a one-way broadcast medium.
/shrug
If we are required to block some resolution, it means we have discretion to do so otherwise. Welcome to your “You’ve reached this page because…” page, courts-and-jurists.
Really, though, what Sony wants is precedent. Railroad a little guy who can barely afford representation, then take that win to Deep Pockets DNS …
Next up:
Suing phone book registries for providing the phone numbers of criminals.
Re:
Sue the the phone companies for providing scammers with phone service.
Re: Re:
That would be the equivalent of ISP liability, not DNS provider liability.
Re:
“of criminals” is more analogous than “to criminals”. My edit of your analogy:
Banning me from giving the phone number of a pizza place to anyone for any reason because I told a friend the pizza place’s phone number despite knowing that my friend has a history of prank calling pizza places.
Re: Re: Correcting a mistake
My first sentence should be the converse:
“to criminals” is more analogous than “of criminals”.
Technically section 230 wouldn’t prevent this in the US, as it doesn’t affect copyright infringement. But it’s nonetheless a pretty good demonstration of why intermediaries should be protected from liability, in much the way that section 230 does.
Jurisdiction
How does this court reason that it has the authority to dictate a global blocking order on a firm not located in their jurisdiction?
Re:
I think they would have jurisdiction because both Switzerland and Germany are in the EU (this is a Swiss non-profit organization)… and Sony has corporate subsidiaries pretty much everywhere, so they are likely using thier German corporation to bring the suit.
Also, I’d bet good money they specifically chose to bring this suit in Germany, due to this German legal concept mentioned in the article “Stoererhaftung” (interferer liability), because they knew it meant they were most likely to succeed there, and get a new precedent that will supercharge thier unending quest for control over their content & artists.
Re: Re:
Switzerland isn’t in the EU
Why not sue the Registrar while they are at it
Sue the registrar also. Unless I am getting it wrong… they are the ones that more or less map an IP address to a domain name. Once that it done, then this is propogated to the DNS servers.
Re:
That’s kind of technically correct, but probably not how you meant it. Registrars map domain names to DNS server addresses. The quote “Quad9 resolves the domain name of website A into the associated IP address” is not talking about those IP addresses.
if pointing in their direction is assitence
I would never have known the pirates DNS names if Sony had not announced them, with details of what they have to offer. That sounds like Sony is the real contributor here, and their efforts go back years and years.
Wait, BGP? Routers?
Doesn’t this implicate everybody that touched/routed the traffic then? An IP address is a virtual thing. You need BGP to know how to route that traffic. Those BGP routes facilitate the movement of the IP packets. And without routers and firewalls to keep those packets on their merry way they wouldn’t go anywhere. This logic could be used to destroy the Internet as we know it.
Re: Redactio ad absurdum
BGP? Sure.
Coal is dug from the ground in Joe Manchin’s state of West Virginia. Some of that goes to be burned in power plants to provide electricity. That electricity DIRECTLY FACILITATES the operation of datacenters, data servers, Internet routers, proxies, VPNs, content delivery networks, source content management systems, the people (writers, editors, managers, etc.) who use them, and the readers like us who read that content.
Some of that content is data that are claimed to be part of someone’s copyright, leaving aside the to-be-determined-at-court issues of fair use/fair dealing and other carvouts to the US’s 17USC rules.
Time to sue the coal miners. Obviously if they would stop then the Internet — at least in West Virginia — would be DOA.
Wind and solar are alternative power sources, so time to pass a law against air movement and hot light sources, and likely also the companies that use them. Banks lend lots of money so normal people like you and I can afford to buy these solar thingies, so clearly THEY are also facilitating copyright infringement.
So, let’s eliminate banks, coal miners, PC producers, electricity producers, datacenters, server users, authors, editors, and FINALLY, let’s not forget the lawyers who defend these scofflaws are ALSO encouraging it, so off them too.
Like the Terran 1 LD said today “Thanks for playing.”
No one will ever figure out a way around our super awesome way of blocking a website, we call it DNS filtering and there is no way to enter an IP address directly into the browser, no way!
I wouldn’t be surprised if Sony saw the appeal coming and will more likely hire more lawyers.
Meanwhile, in the US, Perfect Ten loses to Visa because “the pirates would have gotten paid some other way.”
Not sure which is better.
Re: The Perfect 10 decision is better, and the only one that's good at all between the two cases
I’m not very familiar with the Perfect 10 case, but a quick skim of the Wikipedia article for Perfect 10, Inc. v. Visa International Service Ass’n tells me that you are heavily cropping and misrepresenting the court’s reasoning.
Regarding whhether Visa made a material contribution to the infringement (emphasis mine):
Regarding whether Visa induced the infringement (emphasis mine):
By your logic, any tool which allows people to download YouTube videos should entail third-party liability. Just as there are many non-infringing uses for downloading YouTube videos (time shifting, clipping for fair use, clipping for education, availing of the creator’s express permission including from permissive copyright licenses, saving for journalism, working around unreliable internet access, etc.), non-infringing uses of Visa are a dollar a dime. I hope you didn’t think that the developers of youtube-dl were in the wrong back when the RIAA targeted (not even youtube-dl, making the RIAA’s actions even more damning!) Github for hosting the code and a hosting provider for hosting the youtube-dl website.
Re: Re: My analogy in the final paragraph was slightly incomplete
My analogy should’ve made clear that youtube-dl wasn’t in the wrong, but I also hope you didn’t think that Github and Uberspace (the hoster of the youtube-dl website) were in the wrong.
Additionally, Techdirt has a few articles about youtube-dl.
Re:
Perfect 10 is honestly one of the funniest cases in copyright law, purely because of how many bites the plaintiff made at the copyright apple and how every single one of their cases failed because they expected every single platform to work as their unpaid copyright enforcement arm. Newsgroups, search engines, payment processors – they sued everyone except for the actual pirates. Their strategy was literally nothing more than “please give us money from this other company because we swear they’re really rich and we’re pretty sure at least some of that money should be ours”.
Banking on being the anti-Google to be the darling of copyright fans everywhere was the gambit that Norman Zada was absolutely sure would pay off – if not for the fact that their legal track record was absolutely disastrous. Not for a lack of trying, there were a few attempts made by copyright maximalists to claim that Perfect 10 was setting favorable precedent for copyright lawyers… so it was especially delicious when the courts, finally fed up with Perfect 10 trying to use them as an engine for profiting via shitty lawsuits, ruled that Perfect 10’s assets were to be seized.
Unfortunately, Perfect 10 was able to get around the massive fine they had to pay for filing bogus lawsuits by simply transferring all assets to CEO Norman Zada and declaring bankruptcy, with Zada claiming his reason for not paying the fine was “it would have been bad for business”. Not quite the Prenda-level ending everyone wanted, but the greatest gift Perfect 10 gave was precedents that copyright holders can’t simply point lawsuits at everyone else and fire willy-nilly without consequences.
I wonder if the victim of a crime in Germany could sue the German government for providing the roads that facilitated the criminal’s movements.
Quad9 should block Sony as well. Stop the stuff getting on the internet in the first place.
If everyone blocked Sony, the problem would be solved.
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