When it comes to claims of cybersquatting, it is relatively understood that providing false Whois contact information is relevant to the bad faith determination under the Anti-cybersquatting Consumer Protection Act (ACPA). However, it may be less well-known that providing false contact information may also be relevant to a copyright infringement lawsuit. In particular, under the Copyright Act, namely 17 U.S.C. § 504(c)(3)(A), “it shall be a rebuttable presumption that the infringement was committed willfully for purposes of determining relief if the violator, or a person acting in concert with the violator, knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the infringement.”
Put another way, this provision makes clear that an alleged infringer that is infringing the copyright of another through means of a website may be subject to statutory damages for willful infringement if the Whois information for the domain name pertaining to that website is inaccurate. This is extremely important and may provide additional leverage against an alleged infringer, especially since willful infringement subjects a copyright infringer to $150,000.00 in monetary damages. It is important to recognize that the prerequisites for a copyright infringement lawsuit, and the ability to recover statutory damages, still apply. Namely, a copyright must be registered with the United States Copyright Office prior to the infringement or within three months of publication, and the infringement must be willful. This particular provision, assuming that the copyright was properly registered in a timely fashion, creates a rebuttable presumption that the infringement is willful.
Thus, it is important that any online copyright infringement include an analysis of the domain name Whois information. Conversely, 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 are critical for any internet lawyer who regularly deals with online copyright infringement and related issues. Understanding that a similar provision does not yet exist for trademark infringement claims may also be valuable and worth lobbying or argument on the same.
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