Location, location, location! Copyright content moderation at non-content layers

Abstract

In the moderation and enforcement of copyright content, online platforms as well as internet access service providers play a prominent role. This contribution looks at less prominently addressed “layers” of the internet, namely in relation to the addressing system in form of domain name system (DNS). It first looks at the functioning of the DNS and its location within the content blocking landscape, before contrasting the DNS with linking, which is wellexplored in the copyright jurisprudence and literature, in order to shed light on the role of the DNS in relation to copyright-infringing material. It then turns towards the liability exemption regime of the E-Commerce Directive and the cases of IP address rental and DNS-based content delivery networks. Finally, it looks at the practical role of registration data in the enforcement of copyright and scarce information on “voluntary” arrangements at the DNS-level. The “location” layer of the internet is, compared to online platforms, “far” from copyright-infringing content. Currently, the public consultation in connection with the ongoing review of the E-Commerce Directive under the working title Digital Services Act is touching upon the DNS space. Traditionally, the DNS has not featured prominently in copyright-enforcement debates and it would be wrong to see a prominent role for the DNS going forward. Whereas the “location” layer might be appealing for enforcement purposes, issues and concerns of DNS blocking are manifold and can have serious repercussions on fundamental rights. Yet, already today, there exist voluntary arrangements for the moderation or enforcement of copyright content and the current discussions around the Digital Services Act might be the right place to expand transparency and accountability principles beyond the well-discussed platform enforcement also in the less visible layer of voluntary moderation or enforcement at the “location” layer.