Private network blocks against copyright infringement – without a court order: This has been a reality for all major Internet providers in Germany since this week. Telekom, Vodafone, Telefónica and Co. have joined forces with associations from the entertainment industry to form the CUII (“Clearing House Copyright on the Internet”) to implement DNS blocks against “structurally infringing” websites. This private blocking infrastructure is given an official coating by the fact that the Federal Network Agency approves the decisions made privately. There is a great danger that this construction will undermine the fundamental right to freedom of information and net neutrality. The project also paves the way for further extrajudicial restrictions on freedom of communication.
Network blocking has had a bad reputation in Germany since the disputes over the Access Restriction Act twelve years ago. Internationally, they are mainly used by autocratic regimes to cut off important information from their population. Once such a blocking infrastructure has been set up, it quickly arouses desires to extend the blocking to more and more problem areas. While the dispute in 2019 revolved around blocking the network against serious crimes – the spread of documented child abuse – critics warned even then that the entertainment industry would also demand this instrument to enforce copyrights. This fear has now come true with CUII.
No judicial review
Until now, right holders had to take legal action if they wanted to block the network. For example, the highest court rulings have not fundamentally ruled out network blocking, but it does require that all fundamental rights concerned be weighed up, including the entrepreneurial freedom of the Internet access provider and the freedom of information for Internet users. Internet access providers therefore long insisted on a court order before they implemented network blocks. The courts were obliged to include the basic rights of the users in their decision.
This is why the CUII initiative is so dangerous: the Internet provider buckling in the face of pressure from the entertainment industry means that there is no judicial review of blocking requests. As a result, the Internet providers not only forego the protection of their own basic rights, but also those of the users, who have by no means consented to this procedure. Instead, a private body decides whether a network block is appropriate.
The entertainment industry and telecommunications companies have decided what this body should look like, without involving civil society. The Federal Network Agency, the only authority that is involved in the otherwise purely private-law blocking process, is celebrating this undermining of the basic rights of users as a gain in efficiency: “The new process helps to avoid lengthy and costly legal proceedings that rights holders have so far been reliant on. The Federal Network Agency is doing its part to ensure that the requirements for net neutrality are met, ”says Jochen Homann, President of the Federal Network Agency.
The predator is controlling himself
The Federal Network Agency is actually completely unsuitable for assessing fundamental rights considerations in the area of copyright law. The authority is responsible for regulating telecommunications networks and public utilities in order to ensure fair competition there. This also includes the enforcement of the EU regulation on net neutrality, which prohibits arbitrary blocking of websites by Internet providers. However, the Federal Network Agency has not exactly taken a hard line when it comes to enforcing network neutrality. At BEREC, the European body of telecommunications supervisory authorities, she advocated that DNS locks should not even be classified as potential violations of network neutrality. Fortunately, she was unable to assert herself there with this view.
Because of this background, one can hardly expect that this authority will examine the DNS blocks, which the entertainment industry and Internet providers agree on using CUII, particularly critically. On the contrary, the statements made by the President to the FAZ indicate that the authority fully relies on the procedure of this private body and will only check the content of the content in the event of a complaint to determine whether a blocking was lawful: “We reserve the right to carry out a subsequent check, of course.” , Homann assures the newspaper.
When the Federal Network Agency simply waves through blocking recommendations from CUII at first, it turns the goat into the gardener. It follows the economic decisions of the telecommunications company, which it is supposed to monitor, and the entertainment industry, which of course always has an interest in blocking as many copyright infringements as possible without taking into account the collateral damage for legal communication. An authority that always sees net neutrality guaranteed when Internet providers voluntarily decide to block a website through a process of their own choosing, completely fails to do its job – because the net neutrality rules require that providers are not allowed to block which they are not legally allowed to do are obliged.
Large collateral damage, effectiveness uncertain
Blocking of networks to enforce copyright law in other countries has repeatedly shown that legal uses can also be affected, for example when different providers are present on the same website, only some of which violate copyright law. In the UK, a number of websites that offer stream ripping tools, software that allow video and audio recordings to be downloaded from streaming sites like YouTube, were recently blocked.
This is an extremely worrying development because these tools are far from being used solely for copyright infringement. They are essential for legal video and audio quotes and enable people to participate in culture whose Internet connection is too slow for streaming. Stream ripping is also central to the archiving of legal content that is threatened by arbitrary blocking by algorithms, for example important documentaries by human rights groups about the Syrian war, which regularly fall victim to YouTube’s anti-terrorist filters. It is only a matter of time before such tools are targeted by the private copyright police CUII. While hosting providers like GitHub have so far stood up to the entertainment industry and refused to delete stream ripping software, less backbone is to be expected from Internet providers who are involved in pre-emptive obedience to CUII.
With that in mind, it’s good to see that DNS locks are easy to bypass. Nevertheless, they represent a considerable hurdle for less tech-savvy people and the general public is used to the fact that private companies decide without a judicial review which content can be seen on the Internet and which can not. Since all major German providers participate in CUII, it is also difficult for Internet users to vote with their feet by changing providers. In addition, the associations of the entertainment industry participating in CUII are also given an advantage over all other rights holders, who naturally have to turn to the ordinary courts, whose independence is guaranteed, to enforce their rights.