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DNS resolver hits out at Sony Music’s web-blocking injunction

By Chris Cooke | Published on Tuesday 7 September 2021

A not-for-profit DNS resolver called Quad9 has appealed a web-blocking injunction secured against it by Sony Music in Germany. The organisation says that, while it doesn’t condone copyright infringement, it strongly believes that a DNS resolver like itself “is the wrong place to try to apply legally mandated controls”.

Web-blocking, of course, has become an anti-piracy tactic of choice for the music and movie industries in those countries where it’s an option. Courts issue injunctions forcing internet service providers to block customers from accessing copyright infringing websites. And in Germany a new organisation was recently launched to make the web-blocking process even easier for copyright owners.

Though, of course, anyone super keen on accessing piracy services can relatively easily circumvent the blockades. There are different tactics depending on how the web-blocks are set up. So called proxies of blocked sites are usually created to help with that circumvention – which can then, in turn, be blocked too, although that often results in another game of whack-a-mole for copyright owners, in which new proxies appear faster than they can be blocked.

Other ways to circumvent the blockades include using either an alternative DNS resolver or a Virtual Private Network. This basically means using a different provider for some elements of accessing the internet, including the element where the ISP has actually instigated the web-block. In the case of a DNS resolver, that’s the element where the system identifies the unique IP address where a website the user has selected is actually located.

Given that DNS resolvers and VPNs can be used to circumvent web-blocking and other rights management restrictions, it was always inevitable that they would ultimately be targeted by copyright owners seeking to make their anti-piracy efforts more effective.

Sony Music got a web-blocking injunction against Quad9 in the District Court in Hamburg back in June. The major pointed out that Quad9 already blocks sites linked to malware and phishing, and even promotes that activity as a reason why people should use its DNS services. Therefore, it was argued, adding a block on copyright grounds shouldn’t be too big an ask. But it is too big an ask, reckons Quad9, which has now appealed the injunction.

The organisation said last week: “Quad9 does not condone copyright infringement and supports artists and rightsholders in their ownership of content and prevention of abuse. However, we strongly believe that recursive DNS is the wrong place to try to apply legally mandated controls, and is at best incorrect, and at worst may be contradictory to the safety of end users as well as damaging the stability of and trust in the global internet”.

“In this action”, it added, “the site that is demanded to be blocked is not directly housing the infringing content – it is merely a collection of links that point to other sites which contain the content for download. It seems to our view that this extreme distance from the actual infringing party is highly concerning, as any precedent made with this court proceeding is broad enough to apply in a significantly large number of technical environments, not just those involving DNS”.

It went on: “The objection we are filing against the injunction is extensive with many procedural and jurisdictional arguments, all of which we believe are valid reasons for dismissal or which support those reasons”.

It then expanded on its various concerns with Sony’s injunction, including precedents it sets regarding the liabilities of organisations like Quad9 under German law, and the potential for DNS resolvers to have to play a more proactive role in policing the internet moving forward.

Among other things, it said, “implementing DNS blocking causes an undue burden on Quad9 in legal and technical terms and threatens its business”. And “private companies should not be able to obtain content blocking injunctions against intermediaries with no possibility for internet users to assert their rights to freedom of information before a court”.

Ramping up the drama somewhat, it also added: “If this action is left standing, and Quad9 does not prevail, we believe this may create a particularly dangerous condition for European citizens and for companies or organisations doing business in Europe that are in any way involved in any component of security services for end users or infrastructure”.

“Web browsers, anti-virus software, firewalls, spam filters, email clients, VPN providers, and many other intermediate software and infrastructure components too numerous to list are implicated as potential next targets”, it said, “as their positions look extremely similar to that of recursive DNS providers in information flow diagrams”.

Copyright owners would likely agree that if any of those other internet services can be utilised to circumvent anti-piracy and rights management efforts like web-blocking, then they probably will ultimately find themselves on the receiving end of injunctions to put in place some blockades of their own.

However, the copyright companies might add, such blockades are relatively simple to manage. And – when the original web-blocks were first proposed – the ISPs also raised all the same concerns about unreasonable burdens and flood gates being open and free speech being attacked. But then, ultimately, they just got on with instigating some web-blocks and the internet continued to operate pretty much unhindered, except with a few less people accessing piracy sites.

Still, it will nevertheless be interesting to see how this dispute progresses, what arguments are presented, and – ultimately – how the German courts rule. As always in the battle against piracy, the goal posts are constantly shifting. Though at any one moment, the copyright owners are generally quite good at scoring some goals.