On November 4, the Court of Milan confirmed its first instance PI decision by which it ordered Cloudflare, a US company which provides i.a. DNS (Domain Name System) services, to block the DNS resolution of several torrent websites (and their aliases) which were found infringing Sony, Universal and Warner’s copyright by illegally making music tracks available to the public.
The first instance decision, appealed by Cloudflare, followed a motion filed by Sony, Universal and Warner, which claimed Clouflare’s failure to comply with AGCOM’s order to service providers to prevent Italian users from accessing the torrent websites at issue, as these websites were accessible through the public DNS service provided by Cloudflare.
As specified in our previous article regarding the first instance decision by the Court of Milan (here), DNS is a system that allows users to access websites by turning website addresses (meaning “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 more difficult to remember.
In upholding the first instance decision, the Court of Milan specified that Cloudflare obligation to prevent the DNS resolution of the torrent websites at issue does not derive from a general monitoring obligation, but arises upon the reporting of the specific unlawful activity carried out through the public DNS service provided by Cloudflare.
According to the Court, the intermediary service provider’s obligation to intervene upon such reporting is independent of the specific classification of the service provided (mere conduit, caching, or hosting), as it applies also to mere conduit services under Art. 12(3) of Directive 2000/31/EC, regardless of any profile of direct co-liability of the provider in the unlawful activity.
In its appeal, Cloudflare also alleged that, from a practical point of view, the blocking measures requested by the petitioners could not be implemented without negative consequences on the accessibility of other non-infringing websites.
In this respect, the Court held that the technical aspects regarding the implementation of the order do not concern its admissibility, but rather its enforcement. In fact, according to the Court, there is no burden on the petitioner, nor on the Court when rendering the order, to describe the specific technical manner in which the order is to be implemented. Instead, it is the burden of the party to whom the injunction order is addressed to represent any technical difficulties in the possible enforcement proceedings carried out after the injunction (apparently enforcement proceedings have already been commenced in the Cloudflare case, as it appears from reading the decision).
This final decision of the Court of Milan is quite significant as 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 can be bypassed by simply using a public DNS service, such as the one provided by Cloudflare.
By upholding the original order against Cloudflare, the Court of Milan has set an important precedent, as it confirmed that online intermediaries offering these particular type of DNS resolution services can be required to take effective action if their services are used for music piracy. This is quite relevant for IP rightsholders, especially in light of the broad use of such public DNS services frequently made by users to bypass ISP blocking measures.