Leipzig Regional Court: DNS resolver operator as perpetrator
In a dispute between Quad9 and Sony, the Leipzig Regional Court has ruled that operators of DNS resolvers can be held liable as perpetrators of copyright infringement if they convert IP addresses to domains on which protected material is made available unlawfully.
Squad9 and Sony dispute
Sony has already filed a lawsuit against DNS resolver operator Quad9 in 2021 for converting IP addresses to two domains leading to platform X, on which an album to which Sony holds the rights is made available for download without permission. The case was already heard in Hamburg at the end of 2021, where Sony was proven right. The competent court in Hamburg argued that Quad9 was a so-called “Stoerer” (interferer), since it enabled the resolution of the associated domain and thus enabled the violation of the Telemedia Act. As a result, a temporary injunction was issued requiring the Swiss-based company to block access. The court found that Quad9’s activity was not covered by the liability privileges for pure intermediaries, which exempt service providers, for example, from liability for similar infringements.
Interestingly, the court did not accept the objection that Quad9 is merely one of many DNS resolvers that can be used. As a result of the blocking, access to the protected material was no longer possible, at least via this resolver. The fact that Quad9 only has a market share of one percent and that other DNS resolvers can be used without any problems was not taken into account.
Quad9 is currently defending itself against the preliminary injunction from Hamburg. In addition, the main proceedings in the dispute before the Leipzig Regional Court are now underway. Quad9 was also sentenced here – but for different reasons than in Hamburg.
Infringement of copyright
The Leipzig Regional Court did not agree with the argumentation of the Hamburg Regional Court. Accordingly, in its judgment it did not refer to Quad9 as a “Stoerer” (interferer). Instead, it condemned Quad9 on the basis of an infringement of copyright. If Sony points out a possible copyright infringement to Quad9, there is an obligation to check. Overblocking must be used to ensure that the content is no longer accessible – future infringements must also be prevented in this way. The court did not address the possible technical side effect of blocking domains that are not involved.
The argumentation of the Leipzig Regional Court apparently caught Quad9 off guard. Prior to the trial, Quad9 had commissioned an expert opinion from law professor Ruth Janal from Bayreuth, which ultimately emphasized that “Stoererhaftung” (Breach of Duty of Care) under the German Telemedia Act (Telemediengesetz) was out of the question, since the liability privileges set out there also applied to DNS resolvers. However, this opinion is irrelevant for the current conviction, as the Leipzig Regional Court does not assume a violation of the Telemedia Act, but of general copyright law.
Neither Sony nor Quad9 have yet reacted to the ruling. However, it can be assumed that Quad9 will also appeal this decision.
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