quad9 – Techdirt (original) (raw)

from the when-will-it-ever-stop? dept

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the preliminary injunction by Quad9 was unsuccessful, and the appeal with the Higher Regional Court in Hamburg was withdrawn by Quad9 since a decision in the main proceeding was expected to be made earlier than the conclusion of the appeal in the preliminary proceedings.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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Filed Under: cologne, copyright infringement, dns, dresden, germany, italy, leipzig, quad9, switzerland
Companies: cloudflare, quad9, sony music

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

from the first-they-came-for-the-resolvers dept

One of the characteristics of maximalist copyright companies is their limitless sense of entitlement. No matter how much copyright is extended, be it in duration, or breadth of application, they want it extended even more. No matter how harsh the measures designed to tackle copyright infringement, they want them made yet harsher. And no matter how distantly connected to an alleged copyright infringement a company or organization or person may be, they want even those bystanders punished.

A worrying example of this concerns Quad9, a free, recursive, anycast DNS platform (Cloudflare has technical details on what “recursive” means in this context). It is operated by the Quad9 Foundation, a Swiss public-benefit, not-for-profit organization, whose operational budget comes from sponsorships and donations. In other words, it’s one of the good guys, trying to protect millions of users around the world from malware and phishing, and receiving nothing in return. But that’s not how Sony Music GmbH sees it:

In June, Quad9 was served with a notice from the Hamburg Germany court (310 O 99/21) stating that Quad9 must stop resolving certain domain names that Sony Music GmbH believed were implicated in infringement on properties that Sony claims are covered by their copyrights. Quad9 has no relationship with any of the parties who were involved in distributing or linking to the content, and Quad9 acts as a standard DNS recursive resolver for users in Germany to resolve those names and others.

Sony Music is not alleging that Quad9 is infringing on copyright directly, but that its DNS service allows people to access a Web site that has links to material on a second Web site that infringes on copyrights. On this basis, the Hamburg Court has used Germany’s law on indirect liability to order Quad9 to cease resolving the names of those sites. But as the Gesellschaft für Freiheitsrechte explains, there’s a crazy twist here. Under German law:

[Internet] service providers who provide access to unlawful information or transmit such information are expressly no longer liable for damages or responsible for removal, nor can an injunction be granted against them. However, the Hamburg Regional Court assumes that Quad9 cannot invoke this liability privilege because it does not itself route the copyright-infringing information from A to B, but merely provides indirect access to it. This understanding of the law leads to the contradictory result that Quad9 is deemed liable for copyright infringements precisely because it has even less to do with the copyright infringements than Internet access providers, who are equally not involved in copyright infringements but at least do transmit the data in question.

Quad9’s FAQ on the case points out that if allowed to stand:

this would set a dangerous precedent for all services used in retrieving web pages. Providers of browsers, operating systems or antivirus software could be held liable as interferers on the same grounds if they do not prevent the accessibility of copyright-infringing websites.

The past history of media companies suggest that, given such a capability, they would indeed go after all of these incidental operators, as part of an insane quest to put every aspect of the Internet at the service of copyright.

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Filed Under: copyright, dns, germany, infrastructure, recursive dns, resolving
Companies: quad9, sony music