Sony Music claims DNS service is implicated in copyright infringement at the domains it resolves

Sony Music is alleging that the public benefit organization Quad9, a free, recursive, anycast DNS platform, must stop resolving domain names that Sony believes were implicated in copyright infringement.

Op-Ed by Glyn Moody of Techdirt

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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