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.
There are some incredibly stupid judges and lawyers out there
Robin Edgar
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