Published by LawTechie - December 20, 2010 - LawTechie

The Ninth Circuit has affirmed a decision holding a domain name privacy protection service provider not liable for for the actual registrant’s spam violations. Balsam v. Tucows, No. 09-17625 (9th Cir.; Dec. 16, 2010).

Plaintiff sought to hold defendant third-party privacy protection service liable for its refusal to reveal the actual website registrant’s identity. Plaintiff based its liability argument on the following clause of the ICANN registrar accreditation agreement:

A Registered Name Holder licensing use of a Registered [domain] Name . . . shall accept liability for harm caused by wrongful use of the Registered Name, unless it promptly disclosed the identity of the licensee to a party providing the Registered Name Holder reasonable evidence of actionable harm.

The court found that Plaintiff was not a third-party beneficiary of the ICANN registrar accreditation agreement, specifically because such agreement contained a “no third-party beneficiary” clause.

Plaintiff could have, of course, easily subpoenaed the privacy protection server for all relevant information about the actual spammer/registrant, but it seems here that Plaintiff was trying to recover a hefty default judgment ($1,125,000!) against the deeper pocket as the original violator seemed to be broke.

Note: Compare this ruling with Solid Host, NL v. NameCheap, Inc., 2:08-cv-05414-MMM-E (C.D. Cal. May 19, 2009), where a privacy protection service was found potentially liable for contributory cybersquatting (the court denied Section 230 immunity).

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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