Last year, following a three-year manhunt, one of the site’s alleged operators was detained in Kosovo. Despite this and other actions, the site remains online.
Given the profile of the platform and its popularity in Germany, it came as no surprise when Kinox became the guinea pig for site-blocking in the country. Last month following a complaint from local film production and distribution company Constantin Film, a district court in Munich handed down a provisional injunction against Internet provider Vodafone.
In common with many similar cases across the EU, the Court cited a 2017 ruling from the European Court of Justice which found that local authorities can indeed order blockades of copyright-infringing sites. The Court ordered Vodafone to prevent its subscribers from accessing the site and shortly after the provider complied, but not willingly it seems.
According to local news outlet Golem, last week Vodafone filed an appeal arguing that there is no legal basis in Germany for ordering the blockade.
“As an access provider, Vodafone provides only neutral access to the Internet, and we believe that under current law, Vodafone cannot be required to curb copyright infringement on the Internet,” a Vodafone spokesperson told the publication.
The ISP says that not only does the blocking injunction impact its business operations and network infrastructure, it also violates the rights of its customers. Vodafone believes that blocking measures can only be put in place with an explicit legal basis and argues that no such basis exists under German law.
Noting that blockades are easily bypassed by determined users, the ISP says that such measures can also block lots of legal content, making the whole process ineffective.
“[I]nternet blocking generally runs the risk of blocking non-infringing content, so we do not see it as an effective way to make accessing illegal offers more difficult,” Vodafone’s spokesperson said.
Indeed, it appears that the Kinox blockade is a simple DNS-only effort, which means that people can bypass it by simply changing to an alternative DNS provider such as Google DNS or OpenDNS.
Given all of the above, Vodafone is demanding clarification of the earlier decision from a higher court. Whether or not the final decision will go in the ISP’s favor isn’t clear but there is plenty of case law at the European level that suggests the balance of probabilities lies with Constantin Film.
When asked to balance consumer rights versus copyrights, courts have tended to side with the latter in recent years.
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