Quad9 Turns the Sony Case Around in Dresden
Today marks a bright moment in the efforts to keep the internet a neutral and trusted resource for everyone.
Quad9 has received word from the courts in Dresden, Germany in the appeal of our case versus Sony Entertainment (Germany). The court has ruled in favor of Quad9, clearly and unequivocally. The text from the court is available here in German and in English.
Needless to say, we are elated at the news.
Background
Sony Entertainment (Germany) started a legal proceeding against Quad9 more than two years ago to force Quad9 to stop resolving certain domain names which they claimed were involved in copyright infringement behavior.
We believe this lawsuit was an attempt to set a precedent, such that commercial rights holders could demand that sites on the internet be made unreachable by forcing recursive resolvers to block content. We contended that recursive resolvers have no commercial or even remotely indirect relationship to any of the infringing parties, and that Sony’s demand for blocking was ineffective, inappropriately specified, and not related to Quad9.
What made this case more problematic, in our view, was that the servers in question in this case were not located in Germany, and the links they pointed to were on servers also not in Germany. The domain name (canna.to) was not registered in Germany and was under the top-level-domain operated by the nation of Tonga. Sony Entertainment further asserted that we block the domains globally, not just in Germany, as geoIP does not block for users based in Germany with certainty. For that matter, Quad9 has no office or standing in Germany (we are a Swiss entity), but due to the Lugano Convention treaty it was possible for Sony to serve an injunction in Switzerland and drag Quad9 into legal proceedings.
Details on Judgement
The appeal with the Higher Regional Court in Dresden follows a decision by the Regional Court in Leipzig, in which Sony prevailed, and Quad9 was convicted as a wrongdoer. Before that, Sony successfully obtained a preliminary junction against Quad9 with the Regional Court in Hamburg. The objection against the preliminary injunction by Quad9 was unsuccessful, and the appeal with the Higher Regional Court in Hamburg was withdrawn by Quad9 since a decision in the main proceeding was expected to be made earlier than the conclusion of the appeal in the preliminary proceedings.
Please find below a table summarizing the main take-aways from the decision in Dresden. For more information on these points, please go here.
| Leipzig | Dresden | Result |
|---|---|---|
| Extending the motion to “and/or the other domain(s) is ok | “and/or the other domain(s)” is too unspecific | Win |
| DNS resolver plays a "central role" in the publication of the copyrighted material leading to liability as a wrongdoer | No liability as a perpetrator: DNS resolver does not play a “central role” | Win |
| No Störerhaftung as Quad9 was held liable as a wrongdoer | No Störerhaftung | Win |
| Liability privileges are not applicable as DNS resolver operators are not deemed service providers under the Telemedia Services Act | DNS resolver operators enjoy liability privileges as access providers | Win |
| Subsidiarity criteria fulfilled | Subsidiarity criteria not fulfilled: Sony has not done enough to go after the hosting company | Win |
The court has also ruled that the case cannot be taken to a higher court and their decision is the final word in this particular case. Sony may appeal the appeal closure via a complaint against the denial of leave of appeal and then would have to appeal the case itself with the German Federal Court. So while there is still a possibility that this case could continue, Sony would have to win twice to turn the decision around again.
We would also like to clarify that even though Quad9 benefits from the liability privileges as a mere conduit, it is possible that a DNS resolver operator can be required to block as a matter of last resort if the claiming party has taken appropriate means to go after the wrongdoer and the hosting company unsuccessfully. Such measures could be legal action by applying for a preliminary injunction against a hosting company within the EU. These uncertainties still linger, and we expect that this ongoing question of what circumstances require what actions, by what parties, will continue to be argued in court and in policy circles over the next few years.
We remain committed to the concept that resolving a domain name is not an action that should be prohibited for commercial goals. The DNS does not contain content - it is a system designed for delivery only of pointers, not for data transport.
The courts in Cologne also recently ruled in favor of Cloudflare in a similar case involving DNS recursive resolution (though that case also includes a separate consideration of issues relating to CDN and proxying services.) and we are pleased to have consistent and clear statements from both courts in this matter of DNS recursive resolution.
Today was a significant win in Germany, but there is some disappointment as well. We received a notice from a consortium of Italian rightsholders (Sony Music Italy, Universal Music Italy, Warner Music Italy, and Federation of Italian Music Industry) who have demanded that Quad9 block domains in Italy, and there is potentially another court process ahead of us. We have a blog post on that here, also published today.
Actions taken
From a practical perspective, Quad9 has removed the blocks on all domains previously noted by Sony and documented in the lower courts. Those domains are listed below. Currently, there are no domains now being blocked in Germany or anywhere else related to this case.
Thanks to those who believed in us and in your rights
There are hundreds of individual supporters that we wish to thank for their monetary support, advice, and willingness to speak up in public - social media, blogs, and in industry settings. In particular, we would like to thank our legal team at Rickert.law - Thomas Rickert and Sandra Schulte - who gave us an enormously generous amount of effort and time spent on achieving this win. We'd also like to thank the GFF for their legal advice, continued advisement on German media issues, and for being a sounding board for our legal team and management. We would also like to thank the Kahle Austin Family Foundation, and Stiftung Mercator Schweiz, and eco for their support.
To those who have donated to Quad9: By helping us, you helped yourself. It is clear to us that expansionism of internet censorship will never stop and letting minor inappropriate removals of digital sovereignty go without challenge will ultimately end with heavy-handed suppression of ideas much closer to the user. Those boundaries are constantly being tested, and we have won this round. You have kept the front lines from moving closer to you - congratulations!
Quad9 is a non-profit organization, and the costs of pursuing court cases is a heavy burden which takes away our ability to expand the network as quickly as we need. We will continue to need that help in the next phases of our defense of the DNS. Please consider donating - every euro counts as we continue to fight for your ability to use the DNS. Thank you for making this possible for us.
Regardless of our victory in this case, the costs to Quad9 have been extensive and excessive from a real monetary perspective as well as a time and attention drain. If you feel like we have done service for you in this court case, please consider donating to Quad9 so that we can catch up to where we should have been by now with other costs related to our continued service.
Documents / Further Reading / Details
You may find the original case documents here.
You may find an English machine-translated version here. Please note the English version may not be exact, and final references should be made to the German original.
In addition to the case documentation itself issued by the Court, Rickert.law has broken the arguments down into more specific discussions on several points, which may be of interest to readers who wish a more complete understanding of the points of law, history of the case, or understanding of the judgment. A German-language version may be found here and the English version is here.
List of domains now unblocked: canna.to, www.canna.to, uu.canna.to, www.uu.canna.to, canna-power.to, www.canna-power.to.
