GEMA asks German ISPs to poison DNS in the name of anti-piracy efforts

[David Farber <dave () farber net>]

Begin forwarded message:

From: Richard Forno <rforno () infowarrior org>
Date: July 5, 2005 11:40:32 AM EDT
To: Blaster <rforno () infowarrior org>
Cc: Dave Farber <dave () farber net>
Subject: GEMA asks German ISPs to poison DNS in the name of anti- 
piracy efforts


 DNS Poisoning Requested From Providers by Rights Organisation

http://constitutionalcode.blogspot.com/2005/07/dns-poisoning- 
requested-from-
providers.html

The German rights organisation for composers, lyricist and  
publishers, GEMA,
has asked 42 access providers to poison their DNS servers in order to  
block
sites that provide links to eDonkey files. In short, DNS poisoning  
obstructs
the process of converting a URL to a numeric IP address. The GEMA  
apparently
expects the access providers to configure their DNS servers so that
"inquiries by end-users are not passed to the correct server, but to an
invalid or another pre-defined side." The GEMA also demands that the
providers sign a testimony,with which they commit themselves to  
ensure full
blockage under a contractual penalty of 100.000 euro if any of their
customers can still reach the targeted site after July 25th.

There's a good reason for the GEMA to target access providers. These are
located at the end of the internet chain (source-ISP-"internet"-ISP- 
user),
and usually fall within the (German) jurisdiction, which eases  
enforcement.
However, the effectiveness of this measure may be questioned: users can
still enter the numerical IP address of the sites (URL-IP address  
converters
are easily available on the net), and other DNS servers may be used. The
GEMA probably thinks that an average user may not be able to take these
steps. It also has high expectations of the ability of providers to  
block
the sites, or at least of providers in general, setting a huge sum of  
100
000 euro for failure to comply.

The providers in question are still doing their legal evaluations of the
request, or have said right out not to comply, because the GEMA is  
not the
kind of judicial instance that can set these kinds of demands. They're
considering to bring GEMA's actions to court, in order to see if GEMA  
has
any standing. This question, and GEMA's actions that propel it, are a  
sign
of the times: private parties (rightholders) seeking direct enforcement
through private parties (ISPs), stripping down the constitutional  
protection
of speech from the largest (third) private party (users).

In the Pennsylvania child pornography case, slightly reminiscent of this
one, new legislation allowed the government to aks access providers  
to block
sites, using DNS poisoning amongst others. In that case there was a  
law to
challenge, constitutional restraints to invoke, a court to review the
pressure put on the public (government) - private (users) relationship.
While laws may be applicable in the German case, users could
"constitutionally" loose out if private demands are enforced by private
parties. A judicial review is appropriate here, if for one thing, to  
test
how far decisions to block the information flow can be pushed and taken
within the private realm. Even if there's arguably illegal activity
involved. Because there always is....arguably.




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