On July 11, the Court of Milan issued a preliminary injunction against Cloudflare, a US company which provides i.a. DNS (Domain Name System) services, ordering to block the DNS resolution of several torrent websites. These were found infringing Sony, Universal and Warner's copyright by illegally making music tracks available to the public.
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.
The preliminary proceedings before the Court of Milan follows several decisions by which AGCOM, on a motion filed by the Federazione contro la pirateria musicale e multimediale (Federation against music and multimedia piracy – FPM) on behalf of Sony, Universal and Warner, had ordered service providers to prevent Italian users from accessing the torrent websites concerned.
Following said decisions, the petitioners had noted that, while the infringing websites were not accessible to the public through the connections offered by service providers (TIM, Vodafone, etc.), they were instead accessible through the public DNS service provided by Cloudflare.
The petitioners therefore filed a motion for preliminary injunction before the Court of Milan against Cloudflare, as an intermediary service provider involved in copyright infringement pursuant to Article 156 of the Italian Copyright Law. The petitioners claimed that Cloudflare, despite being able to comply with AGCOM's orders, had not implemented the requested restrictions and was still allowing Italian users to access the infringing websites using Cloudflare's DNS service.
Before the court Cloudflare argued, on the one hand, 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 and, on the other hand, that such measures were essentially useless, since the infringing websites could have been easily accessible through other public DNS services anyway.
The Court of Milan rejected Cloudflare's arguments and granted the PI, ordering Cloudflare to immediately implement the most appropriate technical measures to prevent all users of its services from accessing the infringing websites, blocking the DNS resolution of the concerned domain names (and their aliases), and ordering Cloudflare to pay a penalty of Euro 10,000 for each day of delay in complying with said order.
The above mentioned decision is quite significant as for the first time a 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.
Cloudflare has appealed the decision. The Court of Milan will therefore have the opportunity to assess in further details the issues related to this particular type of DNS resolution service.
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