Register.com, Inc. v. Verio, Inc.
126 F.Supp.2d 238
In the United States District Court for the Southern District of New York
Case Number 00 CIV 5747 (BSJ)
Before District Judge Jones
Decided on December 08, 2000

Relevancy of the Case: Injunction order for using an automated program to retrieve information from a domain registrar’s WHOIS database for marketing purposes

Statutes and Provisions Involved

• The Computer Fraud and Abuse Act, 18 U.S.C. § 1030

Relevant Facts of the Case

• The plaintiff, register.com, is a domain name registrar for .com, .net., and .org top-level domains. It has over 450 co-branded and private-label partners for various other related services.
• While the defendant, Verio, is not a domain registrar, it directly competes with the plaintiff for website hosting and development services.
• While becoming a domain registrar, a company must sign an Accreditation Agreement with the Internet Corporation for Assigned Names and Numbers (ICANN). Under this agreement, a registrar must provide an online WHOIS database containing names and contact details for customers who register domain names.
• Initially, the plaintiff’s terms and conditions for the users of its WHOIS database were the same as those of ICANN. However, in April 2000, it implemented more restrictive terms of use, prohibiting mass solicitation via direct mail or telephone.
• In late 1999, Verio developed an automated software program to collect information on domain owners of newly registered domains. Despite marketing prohibitions in the plaintiff’s terms of use, the defendant utilised the collected data in a marketing initiative known as Project Henhouse.
• The plaintiff started receiving complaints about email and telephone solicitations by the defendant from its customers and co-brand partners.

Prominent Arguments by the Counsels

• The defendant’s counsel admitted the use of WHOIS data for marketing purposes and the collection of data through a search robot. The counsel also conceded that the end use of the information violates the marketing restrictions imposed by the plaintiff. However, he argues that direct mail and telephone marketing are permissible uses under the Accreditation Agreement. The plaintiff’s terms of use do not prohibit using a robot. Moreover, the plaintiff has not provided that the robot causes any harm to its systems.
• The plaintiff’s counsel contended that the defendant’s actions have resulted in a breach of contract and irreparable harm. It has lost opportunities to sell competing services. Its customers and co-brand partners have threatened to take their business elsewhere due to the defendant’s activities. He further submitted that the defendant’s use of automated software constitutes trespass to chattels.
• Further, the plaintiff’s counsel argued that the defendant’s method of accessing WHOIS data and its end use violated two discreet provisions of CFAA.

Opinion of the Bench

• The defendant’s argument concerning the Accreditation Agreement and the plaintiff’s terms of use are not persuasive. The Accreditation Agreement is clear and unambiguous.
• The defendant cannot argue that it did not assent to the plaintiff’s terms of use.
• Neither this court nor the parties could calculate with any precision the amount of the resulting monetary loss.
• While the plaintiff’s terms of use do not expressly forbid using an automated tool, the defendant is well aware that its search robot is unwelcome.
• The plaintiff’s evidence that the defendant’s activities have and will continue to present unwelcome interference is sufficient to demonstrate a likelihood of success on the merits of its trespass to chattels claim.
• The plaintiff has demonstrated that the defendant’s unauthorised use of search robots has affected its server capacity, however, slightly. This could diminish its response time, which would impact the availability of data for its clients.

Final Decision

• The court passed an injunction order against the defendant while ordering the plaintiff to provide a security amount of $250,000.