When it comes to cybersquatting claims, it is relatively understood that providing false Whois contact information is relevant to a 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 USC § 504 (c) (3) (A), “will be a rebuttable presumption that the infringement was committed intentionally for the purpose of determining redress if the infringer, or a person acting in concert with the infringer, knowingly provided or knowingly caused materially false contact information to be provided to a domain name registrar, domain name registrar, or other domain name registration authority domain when registering, maintaining or renewing a domain name used in connection with the infringement. “
In other words, this provision makes it clear that an alleged infringer who infringes the copyright of another through a website may be subject to legal damages for intentional infringement if the Whois information for the domain name belonging to that website is inaccurate. This is extremely important and can provide an additional advantage against a suspected infringer, especially since deliberate 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 legal damages still apply. That is, the 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 duly 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 Whois information. Rather, copyright attorneys must warn their clients that, once again, keeping contact information accurate and up-to-date is extremely important for multiple causes of action, including copyright infringement. Ultimately, understanding that provisions like this exist is critical for any internet attorney dealing regularly 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 lobbying or arguing about it.