Copyright and the Internet. Milan court upholds ban on Cloudflare’s DNS service

On November 4is Court of Milan affirmed its PI decision of first instance, which ordered Cloudflare:A US company that provides ia DNS (Domain Name System) services to block the DNS resolution of several torrent sites (and their pseudonyms), which infringed the copyrights of Sony, Universal and Warner by illegally making the music tracks available to the public.

the decision of the first instance was appealed Cloudflare:followed a motion filed by Sony, Universal and Warner that claimed Clouflare had failed to comply. of AGCOM order service providers to prevent Italian users from accessing the torrent sites in question because those sites were accessed by a public DNS service Cloudflare:.

As mentioned in our previous article on the first instance decision Court of Milan (here), DNS is a system that allows users to access websites by converting website addresses (meaning the “www” strings) into numeric IP addresses through a name-to-IP address conversion process known as “DNS resolution”. This system allows users to find a website by its name instead of its IP address, which is much longer and harder to remember.

Leaving the decision of the first instance unchanged, Court of Milan noted that Cloudflare: the obligation to prevent the DNS resolution of the torrent sites in question does not arise from a general monitoring obligation, but arises from specific illegal activities carried out through the public DNS service provided. Cloudflare:.

According to the Court, the intermediary service provider’s obligation to intervene in such reports is independent of the specific classification of the service provided (simply pipeline, caching or hosting), as it also applies to purely transmission services according to Art. 12(3) of Directive 2000/31/EC, regardless of any characterization of direct joint liability of the supplier in the illegal activity.

In his title, Cloudflare: It also argued that, from a practical point of view, the blocking measures requested by intermediaries cannot be implemented without adverse effects on access to other non-infringing websites.

In this regard, the Court held that the technical aspects relating to the execution of the order concerned not its admissibility but its enforcement. In fact, according to the Court, there is no burden on either the plaintiff or the court in making the order to describe the specific technical manner in which the order is to be executed. Instead, the burden is on the party against whom the seizure is directed to present any technical difficulty in a possible enforcement proceeding after the injunction (apparently enforcement proceedings have already begun in 2008). Cloudflare: case, as can be seen from the reading of the decision).

This final decision Court of Milan very important because for the first time an Italian court was faced with the question of how to deal with a blocking order issued by a public authority (and implemented by Italian access providers) that could be circumvented simply by using a public DNS service; as intended Cloudflare:.

Keeping the preliminary injunction against Cloudflare:is Court of Milan set an important precedent because it confirmed that online intermediaries that offer this particular type of DNS resolution service can be required to take effective action if their services are used for music piracy. This is quite relevant for IP rights holders, especially given the widespread use of such public DNS services, which are often used by users to bypass ISP blocking measures.

The content of this article is intended to provide general guidance on the topic. Specialist advice should be sought regarding your particular circumstances.