Sony Music obtains Blocking Injunction against DNS Resolver
The regional court in Hamburg recently issued a blocking injunction to Sony Music against DNS resolver Quad9.
The order blocks internet users’ access to websites with content that illegally infringes Sony Music’s copyrights. The ruling is one of the first of its kind in Germany. Principles of the ruling can be applied to the infringement of trademark and design rights as well.
A Domain Name Resolver (DNS) basically translates a domain name into an IP address of a server. Quad9 is a DNS resolver operated by the Swiss-based nonprofit Quad9 Foundation, which has the ability to replace the default ISP or commercial DNS configuration. Third-party DNS resolvers like Quad9 are free to use, but provide a loophole for accessing pirate sites by providing translations of domains that include links to copyright-infringing content files.
The regional court in Hamburg has ruled that Quad9 is now obliged to prevent access to websites that make albums of the music label accessible by refraining from “resolving” a domain name into an IP address. If Quad9 fails to block access to the infringing site, it faces a fine of up to 250,000 Euros.
Quad9 is considered to be a so-called “Störer” (Vicarious Infringer) because it enables the resolution of the corresponding domains via its free, public DNS resolver service. The German Federal Court considers a “Störer” as a person/an entity that - even if not at fault - makes a deliberate and adequately causal contribution to an IP right infringement. In this vein, the Hamburg court stated that Quad9 made an intentional, adequate-causal contribution to the copyright infringement by providing its DNS resolver services.
Further, in this case, the court concluded that Quad9 was requested by Sony Music’s legal representatives to prevent access to the infringing offer and that it was reasonable for Quad9 to carry out an independent legal evaluation, as it advertises that it will prevent domain name translations that pose a risk to its customers as part of its service.
Although the offer refers primarily to the prevention of sites that could install malware on the customer’s computer during data transmission, or that could spy on the customer's data, it is clear that Quad9, as part of its business model, undertakes checks of the content and functionality of the websites to which the DNS resolver provides access. Therefore, Quad9 can be expected to check a clearly recognizable and ascertainable copyright infringement on pages accessible via its DNS server, if - as in the present case - the necessary indications for this are contained in the notice provided by Sony Music.
The regional court in Hamburg found that Quad9 was not covered by the usual liability privileges for pure intermediaries, like an internet service provider, or even domain registrars. The ruling states that Section 8(1) of the German Telemedia Act does not apply to a DNS resolver because a DNS resolver does not transmit the information on the searched website, nor does the resolver provide access to it. Moreover, the court also dismissed the privilege under Section 9(1) as well as under Section 10(1) German Telemedia Act, which refer to caching and hosting of infringing files respectively.
The ruling offers new measures against infringing websites. In the past, the focus for rights holders was on proceedings against primary infringers or host providers. However, as primary infringers are often located abroad, and tend to change their host provider very quickly, the enforcement of rights is almost impossible. This is where the new approach comes in: Rights holders can use the blocking injunction against DNS resolvers to prevent further IP infringements.
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