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Where in the World is an Internet Infringer? Carl Oppedahl Oppedahl & Larson LLP http://www.patents.com American Intellectual Property Law Association 1999 Annual Meeting October 21-23, 1999 There can be all kinds of infringement on the Internet

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where in the world is an internet infringer
Where in the World is an Internet Infringer?

Carl Oppedahl

Oppedahl & Larson LLP

http://www.patents.com

American Intellectual Property Law Association

1999 Annual Meeting

October 21-23, 1999

slide2

There can be all kinds of infringement on the Internet

  • A web site may have content that infringes trademarks
  • A web site may have defamatory content
  • A web site may have images that violate copyrights
  • A web site may have sound files (e.g. MP3 files) that violate copyrights
  • A web site may form part of a system that results in the importation into the United States of a product of a process patented in the United States, thus violating under 35 USC sec. 271(g).
  • A domain name, even in the absence of a web site, may be used for email that furthers infringing activity
slide3

Infringers aren’t always easy to find!

  • The web site may not have a physical address
  • The Whois record may not have a valid address
  • The address in Whois may not tell the whole story
  • The address in Whois may be in some inconvenient geographic location
  • There may not be a web site
slide4

How are you going to obtain meaningful remedies against parties who are difficult to find on the Internet?

How are you going to shut down an infringing web site if you can’t find any way to get jurisdiction over it in a country with a convenient and reliable court system?

slide5

Consider seeking a remedy against the provider of DNS (domain name service)

  • Consider seeking a remedy against the web hosting service provider
  • Consider seeking a remedy against the provider of IP connectivity

How do you identify these providers?

slide6

Would you be able to enjoin this web site?

Please note that I have no reason to think this site is an infringer!

slide7

Scroll down to the bottom to try to find contact information, and what do you see?

For the US-based plaintiff, this would not be very helpful.

Let’s look in Whois and see what contact information there is for the web site ...

slide8

Here is the Whois record for that domain name. Not very helpful for a US-based plaintiff!

Registrant:

M/S Kutchery

49/1, West Mada Street,

Nungambakkam,

Chennai, Tamil Nadu 600 034

IN

Domain Name: KUTCHERY.COM

Administrative Contact, Technical Contact, Zone Contact:

HUSSAIN, A.GHULAM (AH3506) sisgroup@MD2.VSNL.NET.IN

+91 44 244 00 44 (FAX) +91 44 244 11 44

slide9

How a visitor reaches a web site or sends email

Your computer

Internet

connectivity

provider

The Internet

Email service provider

Web hosting service provider

DNS service provider

Webmaster

Each service provider is a possible source of equitable remedies

slide10

From the Whois record for “kutchery.com”, we learn who does the DNS service for this domain name:

Domain servers in listed order:

DNS.LOOKINDIA.COM 209.81.156.35

DNS2.LOOKINDIA.COM 209.81.156.103

So we look to see where the DNS service provider is located by doing a Whois on “lookindia.com” …

slide11

Here is the Whois information for the DNS provider:

Registrant:

STAR INTERNET SERVICES LIMITED (LOOKINDIA-DOM)

21 VELACHERY MAIN ROAD

CHENNAI, Tamil Nadu 600 032

IN

Domain Name: LOOKINDIA.COM

Administrative Contact, Technical Contact, Zone Contact:

HUSSAIN, A.GHULAM (AH3506) sisgroup@MD2.VSNL.NET.IN

+91 44 244 00 44 (FAX) +91 44 244 11 44

slide12

Now what do we do?

  • The web site says India
  • The Whois record for the web site says India
  • The DNS service provider’s Whois record says India
  • The DNS service provider’s web site gives only an email address

Where is the web site physically located?

slide13

Where is the web site physically located?

A traceroute may tell you where the web site is physically located! It will also tell you who is the provider of IP connectivity for the web site.

slide14

Cheyenne

Kansas City

Chicago

Detroit

Flint

Web hosting

So maybe we can get somewhere by contacting pairnet.com …

slide16

And here’s the Whois contact information on the web hosting company …

Registrant:

PairNet

Roundtree

Ypsilanti, MI 48197

US

Domain Name: PAIRNET.COM

Administrative Contact, Technical Contact, Zone Contact:

Jennings, Shiloh (SJ1346) shiloh@PAIRNET.COM

n/a (FAX) n/a

No telephone number. No fax number. Roundtree Boulevard is several blocks long. How do we reach this company?

slide17

Elsewhere on the web site is this contact information:

Send the check/money order payments to:

Shiloh Jennings

PairNET Web Hosting

PO Box 980240

Ypsilanti, MI 48198-0240

From here we hope we could somehow reach the operator of the web site …

but suppose we can’t?

Back to the traceroute …

slide18

IP connectivity provider

We may have to contact Corecomm.net in Flint, Michigan …

slide20

Corecomm.net has a street address and telephone number!

CoreComm Information:

10 S. Riverside, Suite 401

Chicago, Illinois 60606

Phone:

312.470.9015

Fax:

312.245.9032

Toll Free:

888.233.1144

slide21

Figuring out the source of an email message

A. Print out email with “full SMTP header”

B. Consult your email service provider

Press this button - “blah,blah, blah”

slide22

Correct IP address

Probably faked IP address

This is the “full SMTP header”. Without it, you have no chance of tracing the message to its source. With the full SMTP header, your email service provider may be able to use the correct IP address to find out more about the source of the email.

slide23

A possible approach when you can’t seem to find the infringer:

File a lawsuit against the actual wrongdoer, but name the DNS provider or web hoster or email service provider or IP connectivity provider, making sure to delineate in the complaint which remedies are sought as to each defendant.For service-providing defendants who have no known culpability, plead only the provision of the services and seek only cease-and-desist relief, not money damages.

slide24

Another possible approach when you can’t seem to find the infringer:

Bring an “in rem” action against the physical machine that hosts the web site, if a statutory basis can be found for such action. Check state laws if your fact pattern does not provide a federal “in rem” basis.

slide25

Do damage control in advance, not afterward:

  • When serving papers on mere service providers, consider accompanying the papers with an explanatory cover letter
  • Consider preceding service of papers on service providers with a non-confrontational communication
slide26

It might turn out the service provider is in league with the infringer. Do not make party admissions that would harm your rights later if this were to turn out to be the case. You might say, “So far as we are aware, you are not affiliated with X company other than as a service provider, which is why we have not at this time asked for money damages against you.”

slide27

Things to keep in mind:

  • You can become very unpopular, very fast, if you sue the wrong party
  • You can find yourself liable for defamation if you make a statement to a third party that turns out to be false and causes harm
  • Being unreasonable can get you famous on the Internet!

See the things that happened after Mondial Trading Company, holder of the trademark “earth” for shoes, sued the owner of “earth.com”, a web site containing pictures of the earth ...

slide29

Where to get traceroute?

There is a traceroute built into Windows NT, Linux, and Windows 98.

A very nice traceroute is found in PingProPlus from http://www.ipswitch.com .

How to do Whois?

Keep in mind not all COM addresses are in the NSI Whois any more. Some COM domains are registered by other registrars.

See http://www.nsiregistry.com/