Introduction
Background
Decision
Comment
The Hamburg Regional Court recently issued a blocking injunction to Sony Music against domain name system (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 and its principles can also be applied to the infringement of trademark and design rights.
A "DNS resolver" translates a domain name into a numerical internet protocol (IP) address. Quad9 is a DNS resolver operated by the Swiss-based non-profit Quad9 Foundation that can replace the default internet service provider (ISP) or commercial DNS configuration. Third-party DNS resolvers such as Quad9 are free to use and provide a loophole for accessing pirate sites by providing translations of domains that include links to copyright-infringing content files.
The Hamburg Regional Court ruled that Quad9 must prevent access to websites that make Sony Music albums accessible by refraining from "resolving" a domain name into an IP address. If Quad9 fails to block access to an infringing site, it faces a fine of up to €250,000.
Quad9 was considered to be a "Störer" (ie, a vicarious infringer) because it enabled the resolution of the corresponding domains via its free, public DNS resolver service. The Federal Court considers a Störer to be a person or entity that – even if not at fault – makes a deliberate and adequately causal contribution to an IP right infringement. In this vein, the Hamburg Regional Court stated that Quad9 had made an intentional, adequately causal contribution to the copyright infringement by providing its DNS resolver services.
Further, the Hamburg Regional Court concluded that Sony Music's legal representatives had requested Quad9 to prevent access to the infringing offer and that it was reasonable for Quad9 to carry out an independent legal evaluation, as it had advertised that it would prevent domain name translations that posed a risk to its customers as part of its service.
Although the offer referred primarily to the prevention of sites that could install malware on the customer's computer during data transmission or spy on the customer's data, it was clear that Quad9, as part of its business model, undertook checks of the content and functionality of the websites to which the DNS resolver provided access. Therefore, Quad9 could be expected to check a clearly recognisable and ascertainable copyright infringement on pages accessible via its DNS server, if – as in the present case – the notice provided by Sony Music contained the necessary indications for such an investigation.
The Hamburg Regional Court found that Quad9 was not covered by the usual liability privileges for pure intermediaries such as ISPs or even domain registrars. The ruling stated that section 8(1) of the Telemedia Act does not apply to DNS resolvers because they do not transmit the information on the searched website or provide access thereto. Further, the Court dismissed the privilege under sections 9(1) and 10(1) of the Telemedia Act, which refer to caching and hosting 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 quickly, the enforcement of rights has been almost impossible. This is where the new approach comes in; now, rights holders can use the blocking injunction against DNS resolvers to prevent further IP infringement.
For further information on this topic please contact Nicolás Schmitz at Grünecker by telephone (+49 89 21 23 50) or email ([email protected]). The Grünecker website can be accessed at grunecker.de.