Basic judgment in the Quad9 case: the access provider is not liable, the resolver is

The decision of the Hamburg Regional Court in the case of the Sony music label against the DNS resolver operator Quad9 could turn the current system of exemption from liability for Internet access providers on its head. In order to avoid this, the legislature could tighten up, write the Hamburg judges in their judgment.

In May, the Hamburg Regional Court granted Sony Music GmbH’s application for an injunction against the Quad9 Foundation. The foundation is obliged to remove the copyright infringing site from the DNS resolution. Because an album of the music label had already been made available there before the official release. On Tuesday evening, the Hamburg Regional Court rejected the objection of the Quad9 Foundation, which recently moved to Switzerland, to the injunction.

The key point in the judgment of the Hamburg judges is that Quad9, as the operator of a free recursive resolver, is not covered by the exemption from liability under the Telemedia Act.

“From §8 paragraph 1 TMG (Telemedia Act, d. Red.) There is a liability privilege for so-called service providers, so for the ISP who transmits third-party information in a communication network or access to the use of third-party information,” writes a spokesman for the court Request from heise online. “In the opinion of the Chamber, this does not include a DNS resolver. This would require a change in the law.”

According to the Hamburg judges, a resolver operator is not a service provider at all within the meaning of the TMG, because the “technical establishment of the connection to the website sought, which only takes place after the domain has been resolved, without the defendant’s DNS resolver” is the reasoning.

One wants to oblige Quad9 therefore as a disturber who makes a causal contribution to the fact that the music album claimed by Sony is “publicly accessible”. So there it is, the mediation of access to information, which the judges actually deny for Quad9.

Thomas Rickert, who represents Quad9 in the proceedings, considers it wrong to define the DNS provider from the TMG. The TMG goes back to the E-Commerce Directive, according to which a service provider is the one who offers an information society service. This service, in turn, is any service that is usually provided electronically at a distance and on individual request from a recipient for a fee, so that Quad9 falls under this definition. The fact that Quad9 offers the resolution of domains to IP addresses free of charge does not speak against it,

If one were to “artificially split up DNS resolving and Internet access, as the Hamburg judges now thought, and grant one liability privilege and not the other”, then, according to Rickert, the ISP could also lose its liability privileges through the back door. “As a lawyer, I would not write to providers in their capacity as access providers, but as resolver operators.” Large and small resolver operators – according to Quad9 there are around 16,000 in Germany, including those in companies – could suddenly be called upon for blockages.

“In our opinion, this contradicts the will of the legislature,” comments Rickert. In addition, the exclusive definition of the regional court would open the door for new troublemakers, from the firewall operator to the operating system manufacturer. They could also be used for installing filters. Rickert speaks of a dam breach.

The Hamburg judges can certainly envision an expansion, as they write in their justification: “If the page were not accessible to Internet users, for example because all existing DNS resolvers block access, then the album would not be in the public domain in the sense of the Section 19a UrhG. “

But even in the theoretically possible case that all resolvers block, the alleged wrongdoers have the option of changing the domain as well as dialing via the IP address. The site in question now also advertises the use of DNS encryption. It is doubtful that the block via Quad9 is “sufficiently effective”, as the court thinks, when you consider that switching to Google’s Public Resolver is not a problem.

In order to actually end a copyright infringement, instead of employing courts and innocent third parties with the endless game of rabbits and hedgehogs, a rights holder must ultimately go the rocky road to track down those who violate his copyright or who contribute directly to the infringement.

The court also affirmed that Sony’s lawyers have done enough to force the access, domain or registry provider of what they consider to be a structurally copyright infringing party to intervene. Whether this actually happened in view of the many possible points of attack that lie in front of the DNS resolver has to be checked again in the next instance.

The Hamburg law firm Rasch, which works for Sony, or the ProMedia GmbH associated with it, left it with inquiries by e-mail, sometimes via contact forms. Nothing was heard from either the site itself or the responsible sharehoster, the provider Infium UAB. It apparently remained with one-off inquiries.

You did not contact the registry .to. .to is used specifically by copyright infringers, according to the lecture. There was also no information from the advertising broker “PopMyAdds” and from the donation platform “Buy me a Coffee”. However, it is not at all clear from the reasoning of the court whether or not one has made representations to the latter.

The judges’ decision also no longer contains the letter to the Quad9 office, which Quad9 had denied in the proceedings.

The Hamburg judges very lightly rejected one more question, namely that of entrepreneurial freedom. In the decision they refer to the fact that Quad9 already offers a resolver variant that filters out malware sites reported by various organizations. The inclusion of the lock requested by Sony is not an expense and therefore quite reasonable.

From Quad9’s point of view, a company’s filter request for a legal claim made in a country is by no means the same as denied access to malware sites that can damage users worldwide. Either, explains Rickert, Quad9 would actually have to keep German users away from the incriminated side with the help of geolocation, which, as the court recognizes, would lead to higher technical effort and longer runtimes for the DNS responses.

Or Quad9 would simply have to block globally according to German specifications and in return be asked in the future why it only enforces German legal claims and not perhaps later those from Hungary, Poland or Russia as well. That would make the resolver less attractive.

In the end, it should be bitter for Quad9 that they only got into the trouble by moving to Europe, where they wanted to establish themselves as a data protection-friendly EU alternative to commercial providers. Sony’s corresponding claim against the market leader Google in the USA – or even just against German users in this country – has so far been searched in vain.

Quad9 CEO Jonathan Todd says they remain confident that the next instance will confirm the view that DNS resolvers as part of the Internet infrastructure are only “pass-throughs” and should not manipulate the service at the request of private companies.


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