The Society for Civil Rights (Gesellschaft für Freiheitsrechte e.V.). (GFF) supports the independent DNS resolver Quad9 in a court case against an interim injunction ordering Quad9 to set up network blocks. The blocking of entire websites is a threat to freedom of information on the Internet. Technologically neutral service providers must not bear the costs and risks of enforcing claims for copyright infringements which they are neither involved in nor aware of.
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DNS resolvers like Quad9 translate domain names like freiheitsrechte.org into numeric IP addresses like 184.108.40.206. DNS resolvers are required in order to enable people to find their way around the Internet without having to remember IP addresses. Quad9 is an independent, donation-funded DNS resolver based in Switzerland that offers a particularly privacy-friendly service which, among other things, allows its users to encrypt their queries. Quad9 also offers its users protection against cyber attacks by not resolving addresses used in phishing and malware attacks. In doing that, Quad9 does not itself decide which addresses are not resolved, but rather implements recommendations by independent IT security experts.
Indirect liability for copyright infringements must not be arbitrarily extended to include uninvolved third parties
At the request of Sony Music Entertainment Germany GmbH, the Hamburg Regional Court ordered Quad9 to block access to a website (website A) that was held to contain links to copyright-infringing content on another website (website B). Quad9 has no relationship whatsoever to the operators of the two websites or the users who upload content there. Quad9 is hence far removed from the actual copyright infringement. The Regional Court of Hamburg holds Quad9 liable based on the principles of so-called “Stoererhaftung” (indirect liability for copyright infringements), on the grounds that Quad9 makes a liability-creating contribution to a copyright infringement by converting the domain name of website A into the associated IP address. The “Stoererhaftung” (indirect liability for copyright infringements) has been criticized for years due to its excessive application to Internet cases. German lawmakers explicitly abolished “Stoererhaftung” for access providers with the 2017 amendment to the German Telemedia Act (TMG), primarily in order to protect WIFI operators from being held liable for damages as “interferers” due to indirect involvement in copyright infringements. We are convinced that DNS services can also invoke this exclusion of liability, as they represent an important component of functioning Internet access.
Pursuant to Section 8 (1) sentence 2 of the German Telemedia Act (TMG), 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.
If DNS resolvers can be held liable as “interferers”, 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.
DNS blocking: limited effect, problematic in terms of fundamental rights
The establishment of DNS blocking by Quad9 does not result in copyright infringements no longer being accessible. Internet users can easily access blocked websites through other channels – they may not even notice that Quad9 has been obliged to block, as most users will have configured multiple DNS resolvers that automatically kick in when one resolver cannot resolve a website. Moreover, the affected website will already be accessible under a different domain.
This limited effectiveness is contrasted by a serious infringement of the fundamental right of Internet users to freedom of information under Article 5 (1) of the German Basic Law and Article 11 of the EU Charter of Fundamental Rights. DNS blocks always affect the entire content of a domain, hence lawful content is likewise affected by the block. The ECJ already ruled in 2014 that network blocks are only compatible with the freedom of information of Internet users if access to lawful information is not disproportionately restricted and provided that users have access to effective legal protection to take action against the block. In this respect, the order of the Hamburg Regional Court also raises doubts about fundamental rights – the users of a DNS resolver have no legal remedy against the DNS blocking. If an Internet access provider blocks access to lawful content, its customers at least have a contractual claim against the provider; this is not the case when using a free DNS resolver, which anyone can use without prior registration.
Private enforcement of rights is no substitute for formal adjudication by the courts
The legal dispute before the Hamburg Regional Court is associated with considerable costs and risks for Quad9. If Quad9 loses in the first instance, it already faces costs in the five-digit range. Independent services are generally unable to defend themselves against claims due to the considerable costs of legal disputes. Passing on the costs and risks of enforcing rights to uninvolved third parties thus entails the risk that in the future, such cases might not be brought to the courts at all. This would mean that companies could have entire websites blocked on the basis of a single copyright infringement. There would no longer be any judicial oversight over the blocking requests.
The proceedings against Quad9 must be understood within a broader context of concerted attempts by the entertainment industry to enforce network blocking for copyright infringement – without involving the courts. Earlier this year, entertainment industry associations and Internet access providers founded the “Clearinghouse Copyright on the Internet” (CUII). The Internet access providers participating in the CUII, such as Deutsche Telekom, Vodafone and 1 & 1, voluntarily implement DNS blocks based on the CUII’s recommendation. The website in question in the preliminary injunction against Quad9 is also on the CUII’s blocking list. This trend of private enforcement of rights is problematic from a rule of law perspective. Weighing up the fundamental rights of the parties concerned can only be done by the courts, not by stakeholders. This applies all the more in the context of a process which does not involve those most affected – the Internet users.
If in the future DNS resolvers similarly feel compelled to block websites on demand, the blocking requests of German rights holders’ associations might even have a global impact. If German Internet access providers such as Telekom voluntarily impose a DNS block, this will at least only apply to their German customers. For a globally operating DNS resolver, however, it is not easily possible to limit a block to the users of one country, since this distinction is not technically provided for. Quad9 is committed to following legal procedure and has therefore invested a great deal of time and money in modifying its system so that the implementation of the injunction by the Hamburg Regional Court does not have a greater impact than intended and only applies to users in Germany, as ordered by the court. Simutaneously, Quad9 –supported by the Society for Civil Rights– will file an appeal against the preliminary injunction in order to reverse it.
If the obligation to use network blocks is upheld, the current case will not remain an isolated one. As we were able to find out through freedom of information requests, the rights holders’ associations organized in the CUII are already planning to block at least 170 websites. Similar demands from other countries could follow. The operation of a non-commercial, donation-funded DNS resolver such as Quad9 would no longer be financially viable if the operators had to carry out such a large number of manual, country-specific blockings. The alternative, that any website that is illegal in a single country would become inaccessible worldwide, would be even more catastrophic – the potential for abuse by autocratic regimes would be immeasurable. It is therefore all the more important to exempt DNS resolvers –as technologically neutral Internet services that serve the common good– from any liability for third-party copyright infringement.
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