Copyright Damage: Domain Name Registration Information Affects Intentional Infringement Analysis
When it comes to cybersquatting claims, it is relatively understood that providing false Whois contact information is relevant to the determination of bad faith under the ACPA. However, it may be less well known that providing false contact information can also be relevant to a copyright infringement lawsuit. In particular, under copyright law, namely 17 USC ยง 504(c)(3)(A), “there shall be a rebuttable presumption that infringement was committed willfully for the purpose of determining relief if the infringer, or a person acting in concert with the infringer, knowingly providing or knowingly causing to be provided materially false contact information to a domain name registrar, domain name registry or other domain name registration authority domain to register, maintain or renew a domain name used in connection with the infringement.”
In other words, this provision makes it clear that an alleged infringer who is infringing another’s copyright through a website may be subject to legal damages for willful infringement if the Whois information for the domain name corresponding to that website is inaccurate. This is extremely important and can provide an added advantage against an alleged infringer, especially since willful infringement subjects the copyright infringer to $150,000.00 in money damages. It is important to recognize that the prerequisites for a copyright infringement lawsuit and the ability to recover legal damages still apply. That is, a copyright must be registered with the United States Copyright Office prior to infringement or within three months of publication, and the infringement must be intentional. This particular provision, assuming the copyright was correctly registered in a timely manner, creates a rebuttable presumption that the infringement is intentional.
Therefore, it is important that any online copyright infringement includes an analysis of the domain name’s Whois information. Rather, copyright attorneys should advise their clients that, once again, maintaining accurate and up-to-date contact information is extremely important for multiple causes of action, including copyright infringement. Ultimately, understanding that provisions like this exist is critical for any internet lawyer who regularly deals with online copyright infringement and related issues. Understanding that there is not yet a similar provision for trademark infringement claims can also be valuable and worth pushing or arguing about.
