DNS Resolver as a DOER of copyright infringement?

The Leipzig Regional Court, in its 5th Civil Chamber, which I am unfortunately also very unpleasantly familiar with, has made a ruling in the matter of the DNS resolver Quad9, which could have very far-reaching consequences for numerous providers on the Internet, from infrastructure providers to marketers.

It has condemned Quad9, which technically does nothing more than translate a domain into an IP address, as a perpetrator of copyright infringement on the Internet. The court is thus shaking the foundations of Internet technology, and it demonstrates the general tendency in recent years to hold third parties responsible for the, possibly illegal, business models or copyright infringements of others, who are often based abroad. In essence, the present dispute is about Quad9 also translating domains into IP addresses that point to servers where music titles from Sony are offered for download in a copyright-infringing manner. Quad9 did not comply with a request from Sony to block access to the domain. Sony pursued the matter first by way of preliminary injunction proceedings in Hamburg and now in main proceedings in Saxony.

The Leipzig Regional Court ruled:

The defendant is ordered to refrain from making the music album […] publicly accessible on the territory of the Federal Republic of Germany by providing its users with a DNS resolver service that translates the domain […] into numerical IP addresses, so that it is possible for the defendant’s users to reach the Internet service under the domain […] with the help of these numerical IP addresses and to call up links to illegal storage of the album […].

The really bizarre thing, however, is that the present ruling is NOT about “Stoererhaftung” (Breach of Duty of Care), but about liability as a perpetrator.

The defendant is liable in the present case as a perpetrator under §§ 97 para. 1,15, 19 a, 85 UrhG. The defendant is liable as a perpetrator because it makes its DNS resolver available to Internet users and, via this, is referred to the pages of the c…to service with the infringing download offers relating to the music album in dispute. In this respect, the Chamber agrees with the convincing statements of the Cologne Higher Regional Court in the case 14 O 29/21, judgment of 29.09.2022 (Annex K 23 II).

The court states:

The prerequisites are in place. In particular, the central criteria of communication to the public in the form of perpetration are fulfilled according to recent case law, namely the central role of the service provider and the intentionality of its actions (see ECJ, Judgment of June 22, 2021, Ref: C682/18 and C-683/18 -, para. 68, juris, with further evidence). These are not exclusive to the case of a host provider.

and further:

The DNS resolver enables users who use the defendant’s resolver to resolve a domain name into a numerical IP address and to find the page at issue here, which plays a central role in the infringement.

This also has far-reaching consequences for Quad9. Thus, the court is of the opinion that Quad9 can be expected to take precautionary measures to prevent the uploading of files with comparable infringing content in the future and is also obligated to eliminate ongoing and thus future infringements. These principles would apply in the same way to the perpetrator’s liability for communication to the public within the meaning of Section 85 (1). 1 S. 1 Fall 3 UrhG in connection with Art.3 Para.2 lit. b of Directive 2001/29/EC shall apply. Although it can be assumed that the proceedings will go to the next instance, the risk of being called upon is currently enormous. Although the Federal Court of Justice, in its “DNS blocking” decision, specified certain requirements regarding the subsidiarity of the claims, the Leipzig Regional Court set these hurdles very low and decided on a case-by-case basis:

Already that an address of the host provider in Vilnius, i.e. Lithuania and thus the EU, actually exists cannot be established. A possible address in Ukraine does not lead to the primary obligation mentioned above. Further delivery attempts other than the delivery via courier presented by the plaintiff cannot be demanded, as there is nothing to suggest that any other possibility would be promising. In particular, it is not decisive whether an attempted judicial or extrajudicial service is involved, since already the correctness of the address in the EU is not beyond doubt. Further requirements would restrict realistic legal protection possibilities of the right holder too much.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.