Back in October 2021, Walled Culture wrote about a ruling from a US judge. It concerned an attempt to make the content delivery network (CDN) Cloudflare, which is simply part of the Internet’s plumbing, responsible for what flows through its connections. The judge rightly decided: “a reasonable jury could not – at least on this record – conclude that Cloudflare materially contributes to the underlying copyright infringement”.
A similar case in Germany was brought by Sony Music against the free, recursive, anycast DNS platform Quad9. Like CDNs, DNS platforms are crucial services that ensure that the Internet can function smoothly; they are not involved with any of the sites that may be accessed as a result of their services. In particular, they have no knowledge of whether copyright material on those sites is authorised or not. Unfortunately, two regional courts in Germany don’t seem to understand that point, and have issued judgments against Quad9. Its FAQ on one of the cases explains why this is a dreadful result for the entire Internet:
The court argues with the German law principle of “interferer liability” the so-called “Stoererhaftung”, which allows holding uninvolved third parties liable for an infringement if they have in some way adequately and causally contributed to the infringement of a protected legal interest. 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.
Now an Italian court has confirmed a previous ruling that Cloudflare must block certain online sites accused of making available unauthorised copies of material. That’s unfortunate, since taken with the German court rulings it is likely to encourage the copyright industry to widen its attack on the Internet’s plumbing, regardless of the wider harm this is likely to cause.
Featured image by pxfuel.
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