On November 4the Court of Milan upheld its first instance PI decision ordering Cloudyan American company that provides DNS (Domain Name System) services, among other things, to block the DNS resolution of several torrent sites (and their pseudonyms) who infringed the copyrights of Sony, Universal and Warner by unlawfully making music available to the public.
The first instance decision, appealed by Cloudyfollows a lawsuit filed by Sony, Universal and Warner, alleging that Clouflare failed to comply AGCOM order service providers to prevent Italian users from accessing the torrent sites in question, these sites being accessible via the public DNS service provided by Cloudy.
As stated in our previous article concerning the first instance decision of the Court of Milan (here), DNS is a system that allows users to access websites by transforming website addresses (i.e. “www” strings) into numeric IP addresses, through a conversion process from name to IP address called “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.
By upholding the first instance decision, the Court of Milan specifies that Cloudy The obligation to prevent DNS resolution of the torrent websites at issue does not arise from a general obligation to monitor, but arises from the reporting of the specific illicit activity carried out via the public DNS service provided by Cloudy.
According to the Court, the obligation of the intermediary service provider to act on this report is independent of the specific classification of the service provided (mere conduct, caching or hosting), since it also applies to services of mere conduct in under art. 12(3) of Directive 2000/31/EC, regardless of any pattern of direct co-responsibility of the supplier in the illicit activity.
In his call, Cloudy also alleged that, from a practical point of view, the blocking measures requested by the petitioners could not be implemented without negative consequences for the accessibility of other non-infringing websites.
In this respect, the Court considered that the technical aspects relating to the execution of the order did not concern its admissibility, but rather its execution. In fact, according to the Court, it is not for the petitioner, nor for the Court when making the order, to describe the specific technical manner in which the order is to be carried out. Instead, it is the responsibility of the party to whom the injunction order is directed to represent any technical difficulties in any enforcement proceedings conducted after the injunction (apparently, enforcement proceedings have already been initiated in the Cloudy case, as appears from the reading of the decision).
This final decision of Court of Milan is quite significant 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) which can be circumvented by simply using a public DNS service, such as that provided by Cloudy.
By confirming the original order against Cloudythe Court of Milan set an important precedent, as it confirmed that online intermediaries offering this particular type of DNS resolution service may be required to take effective action if their services are used for music piracy. This is quite relevant for intellectual property rights holders, especially in light of the widespread use of these public DNS services frequently made by users to circumvent ISP blocking measures.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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