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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 There can be all kinds of infringement on the Internet

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Where in the World is an Internet Infringer?

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  1. 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

  2. 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

  3. 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

  4. 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?

  5. 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?

  6. Would you be able to enjoin this web site? Please note that I have no reason to think this site is an infringer!

  7. 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 ...

  8. 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

  9. 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

  10. 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” …

  11. 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

  12. 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?

  13. 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.

  14. Cheyenne Kansas City Chicago Detroit Flint Web hosting So maybe we can get somewhere by contacting pairnet.com …

  15. This is the web hosting company that hosts this web site …

  16. 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?

  17. 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 …

  18. IP connectivity provider We may have to contact Corecomm.net in Flint, Michigan …

  19. We can see their data line in Flint, Michigan … from a map on their web site ...

  20. 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

  21. 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”

  22. 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.

  23. 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.

  24. 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.

  25. 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

  26. 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.”

  27. 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 ...

  28. 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/

  29. Where may I get a copy of this presentation? Write to Carl@patents.com .

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