Music piracy: the Court of Milan accepts the appeal of Sony, Universal and Warner against Cloudflare  

With judgment of July 11th 2022, the Court of Milan accepted the appeal presented by Sony, Universal and Warner against Cloudflare Inc., ordering to block the DNS resolution of any website allowing to unlawfully download torrent files.

The DNS (Domain Name System) is a system which allows to convert the numeric strings composing the IP addresses (es. into understandable names (es. It is thanks to DNS that users can access websites by a name search.

As a matter of facts, every device connected to the network has an IP address and web browsers communicate through the IP addresses.

Therefore, when a user searches for a page by typing a name (ex. Brevettinews), the DNS translates it into a language that is comprehensible to the machine, converting it in the IP address corresponding to the website through a process called DNS resolution. Without the DNS, in order to find a website, it would be necessary to type the IP address of the requested page in the browser.

The case submitted to the Court of Milan concerned the public DNS service provided by Cloudflare, which can be used as an alternative service to the DNS resolution generally provided by the mere conduit provider.

In particular, Sony, Universal and Warner – through the respective controlled companies in Italy – found out the existence of three platforms which allowed to unlawfully download songs in the catalogues of the three record labels through the relative torrent files (kickasstorrents. to, limetorrents. pro e ilcorsaronero. pro).

This circumstance was already notified last year to the AGCOM, which, considering the important copyright infringement suffered by the three companies, had ordered to all services providers to disable the access of the Italian users to the three torrent sites.

Nevertheless, during the audit of the application of such deactivations, the three plaintiffs ascertained that the websites under exam were blocked by the mere conduit providers but they were still perfectly accessible through the DNS service provided by Cloudflare.

This because the DNS service offered by Cloudflare allows users to identify and reach websites even by eluding the blocks imposed by the authorities and implemented by the telecommunication companies.

Briefly, Cloudflare offers services able to filter all users’ connection requests to a determined website, making them safer because all users connected to Cloudflare use the connection of this subject and not theirs. In this way, however, Cloudflare interposes itself between the access request to a determined website and the website itself, acting therefore as an intermediary and serving the final user with data saved in the many datacenters dislocated on the territories. Therefore, the access to the services blocked by the AGCOM remained available for Italian users precisely thanks to the “screen” offered by Cloudflare DNS.

On the basis of the on-going infringement of copyright on the works part of their catalogues, the plaintiffs had therefore acted on cautionary grounds against Cloudflare, which defended itself by stating, among other things, the technical impossibility of filtering the blocked websites without penalizing the entire system of DNS resolution of all the other websites. Moreover, in the opinion of the defendant, whichever measure imposed by the Court would have been pointless, given that the unlawful websites under exam would remain reachable using other DNS services provided by different subjects.

The Court however did not agree with the arguments of the defendant, considering that Cloudflare assumes an intermediary role in providing the service aimed at carrying out unlawful activities, already object of the AGCOM provisions.

With regards to the existence of others subjects able to provide the same services, the Court highlighted how such circumstance is not in any way adequate to justify the infringement of copyright law. As a matter of fact, even if the prohibitory measures would not have been sufficient to stop completely the copyright infringement, such measures however “should have the effect to prevent, or at least, to make hardly achievable the unauthorized consultation of protected materials and to seriously discourage Internet users using the services of the recipient prohibitory measures from consulting content made available in infringement of copyright”.

Therefore, the Court of Milan ordered Cloudflare to adopt all technical measures necessary to prohibit the access to the torrent platforms blocked by the AGCOM, banning even the DNS resolutions of any domain names which still performs the unlawful services offered by the blocked websites and providing for a penalty of 10.000 € for each day of delay in complying with the judgment.


Ilaria Feriti