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DNS resolvers hit out at the music industry’s web-blocking orders

By | Published on Friday 16 September 2022


Cloudflare has commented on efforts by the music industry to force it to block people from accessing piracy websites by adding filters to its DNS resolver Perhaps unsurprisingly, this is something the internet services company is very concerned about.

Although an entirely legitimate internet business, Cloudflare has been criticised by copyright owners over the years for providing services to websites that allegedly infringe copyright. Music companies would like Cloudflare to be much more proactive in ensuring that doesn’t happen. But Cloudflare has generally resisted such calls, though nevertheless complies with any court orders that demand sanctions against infringing sites.

Various court orders have been sought by the music industry demanding such sanctions. Though an injunction secured in Italy in July targeted a different part of Cloudflare’s operations – ordering that certain piracy sites be blocked via its DNS resolver.

Most people don’t even realise they are using a DNS resolver when accessing the web, as it’s a process usually handled by their internet service provider. However, DNS resolvers play a key role in enabling people to browse the net, and – if they want to – those people can always opt to use a different DNS resolver to the one employed by their ISP.

One reason for doing so is to circumvent the web-blocks put in place by the ISPs in some countries. When ISPs block access to piracy websites – usually because of court orders secured by music and movie companies – they often instigate those blocks by adding filters to their DNS resolvers. Which means the ISP’s customers can circumvent the blocks by simply switching to another DNS resolver.

With web-blocking an anti-piracy tactic of choice for the music and movie industries – in those countries where web-blocking injunctions are relatively easy to secure – in recent years music and movie companies have started to look at ways to make it harder for people to circumvent web-blocks that have been put in place by the ISPs. And that has started to involve going after the operators of alternative DNS resolvers.

In Italy, internet regulator AGCOM had ordered to blocking of three piracy sites, and the question was then posed as to whether Cloudflare should also be obliged to ensure those sites couldn’t be accessed via its DNS resolver. That question ended up in the Court Of Milan, which issued an interim injunction saying that, yes, Cloudflare should block access to those sites via the resolver.

In a new transparency report, Cloudflare raises specific concerns about this development, distinguishing the web-blocks it has implemented elsewhere on its platform from those it is being asked to implement on the DNS resolver.

Specifically, with the former Cloudflare can limit any blocks to the country where any one web-blocking order is issued, but with the latter any blocks would apply globally. Which basically means courts impacting on internet usage well beyond their jurisdictions.

“Cloudflare has … received a small number of legal requests related to blocking or filtering content through the public DNS resolver”, it writes in its new report. “Because such a block would apply globally to all users of the resolver, regardless of where they are located, it would affect end users outside of the blocking government’s jurisdiction”.

“We therefore evaluate any government requests or court orders to block content through a globally available public recursive resolver as requests or orders to block content globally”, it adds.

“Given the broad extraterritorial effect, as well as the different global approaches to DNS-based blocking”, it goes on, “Cloudflare has pursued legal remedies before complying with requests to block access to domains or content through the public DNS resolver or identified alternate mechanisms to comply with relevant court orders. To date, Cloudflare has not blocked content through the public DNS resolver”.

Cloudflare’s is not the only DNS resolver that the music industry would like to see put in place some piracy filters. In Germany, Sony Music has been pursuing legal action against a not-for-profit DNS resolver called Quad9, with the major successfully securing a web-block injunction in the Hamburg courts.

Quad9 is fighting those efforts by Sony, and it posted an update on its battle with the major at the end of last month. As the legal dispute proceeds, Sony Music recently filed a new lawsuit with the court in Leipzig.

In its update, Quad9 reported that it had “responded comprehensively to that filing including expert witness testimony by a highly respected group of technical subject matter experts”.

“The significance of this is that, while our arguments are roughly the same as with our first track in Hamburg, we have had the opportunity to fill in additional background information for each of them”, it added. “We are currently awaiting the courts to provide dates for a hearing, which is the next significant step in the process”.

The outcome of its ongoing legal battle with Sony Music, it went on, “is significant for not only Quad9, but global internet users as well. In the event that Quad9 does not prevail, a very dangerous precedent could be set, potentially threatening many more layers of the internet model, which reaches up towards the user and downwards to the root (of the namespace)”.

“Should Sony prevail, it is not unlikely that other rights holders will follow suit and request the blocking of further domain names making it difficult or impossible for us to operate”, it then claimed. “Also it is possible that thousands of similar DNS resolver operators, including company networks, will receive blocking demands with the risk of being sued in case they do not comply”.

“This could be the case even though the DNS operator nor any government authority have not had a chance to fully examine or been given the reasons behind such blocking requirements”, it added.

Music companies would likely counter that many ISPs initially opposed the introduction of web-blocks, likewise claiming that the flood gates would open and a plethora of websites would end up being blocked without proper scrutiny. But that hasn’t really happened, and most ISPs in those countries where web-blocks are common have just accepted web-blocking as being a routine part of business.

But it will nevertheless be interesting to see whether DNS resolvers will be able to successfully fight back against court orders directly targeting their operations – and also where else in the internet supply chain the music and movie industries’ anti-piracy activities will focus in the future.