A flurry of additional web-blocking orders have been issued on copyright grounds in the French courts against DNS resolvers operated by Cloudflare and Google, despite both companies insisting that instigating such orders in a bid to tackle online piracy is “disproportionate” and “ineffective”.
With web-blocking, copyright owners secure injunctions through the courts that order internet companies to block their customers from accessing specific piracy websites.
Now available in many countries, web-blocking injunctions are most commonly secured against internet service providers, but can also be secured against other kinds of internet companies, an occurrence which is becoming increasingly common.
These latest web-blocking orders were issued at the request of French broadcaster Canal+ and target websites that provide unlicensed streams of sporting events.
However, the rulings are potentially useful for the music industry, which has long favoured web-blocking as an anti-piracy tactic, and which has been increasingly calling on DNS resolvers - which help direct traffic around the internet, routing URLs and domain-names to the underlying web services that serve content - to play their part in blocking piracy sites.
Canal+ initially wanted web-blocking injunctions to force French internet service providers to block their customers from accessing over 100 pirate sport sites.
Obtaining web-blocking orders that target ISPs is now pretty routine in multiple countries, as part of anti-piracy efforts. However, once an ISP puts a web-block in place, it is easy for customers to circumvent the block simply by switching to a third party DNS resolver, rather than using the built-in DNS resolution offered by their ISP.
Having obtained the initial web-blocking order against ISPs, earlier this year Canal+ returned to court asking for additional injunctions against Cloudflare, Google and Cisco, each of which operates its own DNS resolution service.
Those new web-blocking orders were specifically targeting various sites that provide access to illegal streams of Premier League and Champions League football matches, for which Canal+ has the exclusive broadcast rights within France.
Canal+ was by no means the first rightsholder to ask for web-blocking orders against DNS providers. Sony Music previously tried to get a web-blocking order against Quad9 in Germany, while Universal Music went after Cloudflare’s DNS service through the courts in Germany and Italy.
In every case, the tech companies providing DNS services have pushed back against the copyright owners’ demands, arguing that forcing them to implement web blocks at a DNS level fragments the internet, by creating effective ‘walled gardens’, and jeopardises the integrity of the DNS system, a fundamental part of how the internet works.
They also insist that DNS resolution services are a “mere conduit” rather than an “intermediary” when people access pirated content online. This is an important distinction under European law when it comes to whether a company is obliged to proactively stop copyright infringement from occurring via their networks.
In the Sony v Quad9 case in Germany, the courts ultimately ruled the DNS service provided by Quad9 was indeed a “mere conduit” and therefore Quad9 was not obliged to put in place web-blocks. In the French courts, similar arguments were knocked back, and the court decided that all three DNS service providers - Cloudflare, Google and Cisco - must block the illegal football sites identified by Canal+.
Rather than complying with the court order, Cisco decided to scrap its OpenDNS service altogether for internet users in France. Google and Cloudflare, meanwhile, reluctantly put in place the web-blocks. Canal+ then followed up on its legal win by asking the courts to issue web-blocks in relation to a stack of other sports websites, including some that illegally stream footage of Formula One.
Both Google and Cloudflare tried once again to convince the courts that web-blocks against DNS resolvers are a bad idea.
According to Torrentfreak, they argued that there are simpler ways to block access to piracy sites and, even if they instigate these web-blocks, there are still other ways for users to access the piracy sites, for example by using VPN services - many of which sell themselves on their ability to circumvent various blocks or geographical restrictions on content. And, once again, they also insisted that their DNS resolvers are simply conduits not intermediaries.
None of that convinced the French courts, which said that the DNS resolvers are intermediaries under EU law, that web-blocking on copyright grounds was a proportionate and necessary measure, and that Canal+ could “choose the blocking measures it deemed appropriate and the existence of alternative solutions is irrelevant”.
It seems likely that both tech companies will now attempt to appeal these recent rulings. They could also potentially take the matter to the EU courts, given the differing opinions regarding the legal status of DNS resolvers in these French cases and the Sony v Quad9 case in Germany.
The outcome of any appeal will have ramifications for the music industry’s ability to use web-blocking and injunctions against DNS services in its fight against piracy.
Given the music industry is very keen on web-blocking - and reckons that DNS resolvers need to play a part in that anti-piracy work - it will be hoping that more courts in Europe adopt a position in line with the French judges rather than the judges in Germany.