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Cloudflare Applauds Court for Rejecting DNS Piracy Blocking OrderErnesto Van der Sar, 05 Dec 12:15 PM Copyright holders have made serious work of we

Cloudflare Applauds Court for Rejecting DNS Piracy Blocking Order Ernesto Van der Sar, 05 Dec 12:15 PM Copyright holders have made serious work of website blocking in recent years, expanding the practice to over forty countries worldwide. In Germany, for example, the largest Internet providers agreed to voluntarily block pirate sites as part of a deal they struck with rightsholders. These blockades, which are put in place following a thorough vetting process, are generally implemented at DNS level. This is a relatively easy option, as all ISPs have their own DNS resolvers. The downside of this simple measure is that it's easy to bypass. Instead of using the ISPs' DNS resolvers, subscribers can switch to public alternatives offered by Cloudflare, Google, OpenDNS, or Quad9. This relatively simple change usually renders blocking efforts useless. Pirate Site DNS Blocking Copyright holders are aware of this weakness. In an attempt to broaden the impact of their anti-piracy efforts, they sued Quad9, which was required to implement a global pirate site blockade. Meanwhile, Cloudflare also found itself in the crosshairs. The German branch of Universal Music previously sued Cloudflare for offering its services to pirate site DDL-Music. The Internet infrastructure company lost this legal battle in the first instance, before the case moved to the Higher Regional Court of Cologne. The appeal wasn't just about Cloudflare terminating services to DDL-Music as a customer but also the implementation of an expanded DNS blockade. Universal demanded that Cloudflare should block the pirate site for all users of its publicly available 1.1.1.1 DNS resolver. Last month, the Higher Court concluded that Cloudflare doesn't have to take any measures on its public DNS resolver in response to copyright complaints, as the service operates in a purely passive, automatic, and neutral manner. As a pass-through service, it is not liable for third-party actions under German and EU law. In a blog post, Cloudflare's Senior Associate General Counsel, Patrick Nemeroff, applauds the verdict. The American company has always argued that public DNS resolvers are neutral services. Nemeroff notes that DNS servers are not a good place to try to moderate content on the Internet. This isn't just disproportionate but also ineffective. "That's a position we've long advocated, because blocking through public resolvers is ineffective and disproportionate, and it does not allow for much-needed transparency as to what is blocked and why," he writes. Ineffective Cloudflare equates its DNS resolver to a phone book that people historically used to look up someone's number. In a similar vein, DNS servers link a domain name to an IP-address, allowing people to access a website without having to memorize a string of numbers. Blocking a domain by tampering with a DNS resolver doesn't take down the website. People can still use alternative DNS providers, build their own DNS solution, or simply enter the site's IP-address manually. "[I]t's not even effective. Traditionally, website operators or hosting providers are ordered to remove infringing or illegal content, which is an effective way to make sure that information is no longer available. "A DNS block works only as long as the individual continues to use the resolver, and the content remains available and will become accessible again as soon as they switch to another resolver, or build their own," Nemeroff adds. Disproportionate Copyright holders are aware of this, of course, and would counter that doing something is better than nothing at all. At the moment, many ISPs also rely on DNS blockades and that tends to stop at least part of the traffic to pirate sites. Cloudflare stresses that public DNS resolvers shouldn't be compared to ISPs' DNS servers. The main difference lies in the audience, which is global in Cloudflare's case. This means that basic DNS blockades would apply globally too. "[P]ublic DNS resolvers aren't the same as DNS resolvers operated by a local ISP. Public DNS resolvers typically operate the same way around the globe. That means that if a public resolver applied the block the way an ISP does, it would apply everywhere." There are technical solutions to apply blockades more locally over DNS, but that would require more data gathering, which limits the privacy of the public at large. "Blocking orders directed at public resolvers would require the collection of information about where the requests are coming from in order to limit these negative impacts while demonstrating compliance. That would be bad for personal privacy and bad for the Internet." The Fight Continues The verdict of the Higher Regional Court is not entirely positive for Cloudflare, as it further clarified that the company can be held liable for pirate sites that use its CDN services. The case at hand revolves around DDL-Music, which is already defunct, but in future could expand to other Cloudflare customers such as The Pirate Bay. In addition, the DNS battle isn't over either. There are similar legal battles ongoing against other providers such as Quad9 while Cloudflare itself has been targeted in Italy as well. "While the Higher Regional Court's decision represents important progress on the DNS issue, the fight over how best to address online infringement continues," Cloudflare notes. Cloudflare says that it will continue to protest such orders going forward and hopes that the Higher Regional Court's reasoning on the DNS issue, which is partly grounded in EU law, will help to that end. "This decision marks further progress in Cloudflare's fight to ensure that efforts to address online infringement are compatible with the technical nature of various Internet services, and with important legal and human rights principles around due process, transparency, and proportionality." "We will continue that battle both through public advocacy and, as necessary, through litigation, as one more part of helping build a better Internet," Nemeroff concludes. From: TF, for the latest news on copyright battles, piracy and more. Record Labels Urge Court to Uphold $47 Million Piracy Liability Verdict Ernesto Van der Sar, 04 Dec 10:37 PM Late 2022, several of the world's largest music companies including Warner Bros. and Sony Music prevailed in their lawsuit against Internet provider Grande Communications. The record labels accused the Astound-owned ISP of not doing enough to stop pirating subscribers. Specifically, they alleged that the company failed to terminate repeat infringers. The trial lasted more than two weeks and ended in a resounding victory for the labels. A Texas federal jury found Grande guilty of willful contributory copyright infringement, and the ISP was ordered to pay $47 million in damages to the record labels. $47 Million Appeal This September, Grande filed its opening brief in which it again argued that the lower court reached the wrong conclusion. Internet providers shouldn't be held liable for pirating customers based on third-party allegations, the company noted. "This appeal presents important questions of first impression in this Circuit about whether, and in what circumstances, an internet service provider may be held secondarily liable for the conduct of users of its service," the ISP wrote. Among other things, the ISP believes that it shouldn't have to terminate Internet access so easily. This view was supported by several telecom industry groups, who all object to disconnecting subscribers' internet access based on copyright claims. Record Labels Counter In a recent 89-page response brief, the record labels counter Grande's appeal. According to the music companies, the jury reached a sound verdict that should be upheld on appeal; the alternative would make it almost impossible to tackle the online piracy problem. The labels explain that ISPs play a central role in BitTorrent-based piracy, as they are the only ones who can link an IP-address to a subscriber. This means that when rightsholders or their anti-piracy partners sent infringement notifications to Grande, the ISP was the only party that could address this conduct. Before 2010, Grande did indeed take action against subscribers but when the private equity firm ABRY Partners purchased the ISP, it stopped terminating pirating subscribers. This went against the requirements under U.S. law, the music companies say. "At trial, Plaintiffs demonstrated that Grande understood these legal obligations, but consciously ignored them," the labels write. "Instead, Grande decided in 2010 to maximize its revenues by continuing to collect subscription fees from subscribers it knew were repeat copyright infringers and providing them with the tools necessary to continue infringing, namely Grande's high-speed internet services." Piracy v.s Profits Grande could have avoided liability if it had adopted and reasonably implemented policies to terminate repeat infringing subscribers. However, the music companies argue that the ISP chose to increase the company's profits instead. The rightsholders believe that Grande's decision was financially motivated. The company reportedly terminated the accounts of many subscribers who failed to pay their bills but took no action against repeat infringers. "For nearly seven years, Grande enabled and facilitated massive copyright infringements by subscribers of its internet services as a result of its conscious decision to provide subscribers it knew were using those services to infringe with the very tools they needed to continue doing so." Grande now hopes to overturn the massive damages award, but the record labels claim its arguments fail to hold water. Evidence? The lawsuit relies on data collected by anti-piracy company Rightscorp which, according to Grande, is insufficient. The rightsholders disagree with that characterization and point out that plenty of support for the evidence was presented at trial. "The trial record is replete with evidence about how Rightscorp reliably detected infringement by Grande's subscribers, sent Grande more than one million notices of infringement, and downloaded copies of infringing files directly from Grande's subscribers." Pirates and Terrorists The second point of contention is whether Internet providers should be held responsible for the actions of individual users. This lies at the heart of the contributory copyright infringement concept, which ultimately resulted in the $47 million damages ruling. To support its appeal, Grande draws heavily on the recent Twitter vs. Taamneh ruling, in which the U.S. Supreme Court recently held that the social media platforms aren't liable for ISIS terrorists who used their services to recruit and raise funds. The Supreme Court rejected the claim that Twitter and others aided and abetted terrorist activity because it didn't "consciously and culpably" participate in the illegal activity. According to Grande, Internet providers are even further distanced from any wrongdoing. The record labels believe that this ruling shouldn't be directly translated into a copyright context. If the court applied the ruling here, it would essentially change the concept of contributory copyright infringement based on a case that has nothing to do with copyright. "To rule otherwise would require this Court to conclude that the Supreme Court changed fundamental principles of copyright liability without saying so in a case that was not about copyrights," the labels note. In addition, they point out that both cases are fundamentally different. In the Twitter case, terrorists didn't commit their terror attacks on Twitter. However, the contested copyright infringements did take place through Grande's network. "Unlike in Twitter — where ISIS did not use the social media companies' services to complete its terrorist attack — this case involves tortfeasors that directly relied on and used Grande's services to carry out their torts," the response brief reads. As is often the case in these disputes, the parties have opposing viewpoints that zoom in on aspects that favor their position. It is now up to the U.S. Court of Appeals to decide which party makes the most sense. — A copy of the music companies' response, countering Grande's appeal, is available here (pdf). If the court decides to vacate the existing judgment, the music companies also want to raise a counter-appeal, asking the court to clarify that taking affirmative steps to make a copyrighted work available for others to download online violates the exclusive right of distribution. From: TF, for the latest news on copyright battles, piracy and more. Are you looking for a VPN service? TorrentFreak sponsor NordVPN has some excellent offers. ©2023 TorrentFreak | Office 21338 PO Box 4336 Manchester, North West M61 0BW United Kingdom Web Version   Preferences   Forward   Unsubscribe     Powered by Mad Mimi®A GoDaddy® company