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2009-2010 LAWSUITS |
Tucows (Northern District of California and Ninth Circuit)
In a story related to the AdultActionCam.com lawsuit, my attorney sent a demand letter to Tucows – which provides private registration for the domain names adultactioncam.com and adultactioncash.com through ContactPrivacy.com, which means that Tucows becomes the registRANT as well as the registRAR, and it licensed use of the domain name back to the spammer. Pursuant to the ICANN Registrar Accreditation Agreement, a registrant who refuses to promptly provide the identity of the licensee upon receipt of evidence of actionable harm shall accept all liability. Even after judgment was entered, and even after I provided evidence of more spams, Tucows – specifically, Paul Karkas – still refused to provide me with the identity of its licensee. So I filed a complaint against Tucows in the Superior Court of San Francisco County.
Tucows removed from California to federal court, then filed a Motion to Dismiss. Here's my Opposition. Here's Tucows' Reply. The District Court ruled against me.
I appealed to the Ninth Circuit. Basically, the argument is this: Nothing in the ICANN Registrar Accreditation Agreement immunizes Registered Name Holders from liability, but even if it did, the specific requirements of ¶ 3.7.7 and ¶ 3.7.7.3 control over the general "no third party beneficiaries" language. Moreover, Tucows' interpretation disregards the plain language of the RAA, logic (it would make those provisions unenforceable by anyone), ICANN's own position on the subject, industry standards, and public policy.
Click here to read my Opening Brief. Click here to read Tucows' Answering Brief. Click here to read my Reply Brief.
The Panel of the Ninth Circuit ruled against me in this Order. The Panel noted my "novel and creative approach" but said I'm not a 3rd party beneficiary. In my admittedly biased opinion, the Panel was wrong based on the plain language of the RAA, and the Panel didn't realize what the impact of its ruling would be. Now, anyone can do bad things on the Internet – not just spamming – and hide behind a privately-registered domain name. The privacy service does not have to identify its customer, and the privacy service is not liable for the harm either. Somehow, I'm pretty sure that's not what ICANN intended.
I filed a Petition for En Banc Review, but the Ninth Circuit declined the full-court review.
There is a silver lining though, and it's a pretty good one. Tucows may have avoided liability for now, but it may have created a serious problem for all private registration services, and here's why. If parties harmed by wrongful use of privately-registered domain names don't have any benefits under the RAA, then they don't have any obligations either. That means I no longer have to ask the privacy service for the identity of its licensee wrongfully-using a domain name, and the privacy service can no longer avoid liability merely by identifying its licensee. So I'm going to sue privacy services directly from now on as the actual legal owner of the wrongfully-used domain names... Let the privacy services make their own indemnification/breach of contract claims against their own customers.
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2006 LAWSUITS |
AdultActionCam.com
(Northern District of California)
I received over 1,100 spams between October 2005 and May 2006 from
Adult Action Cam and/or its affiliates. Various elements of false headers:
Fake sender names, fake sender email addresses, deceptive subject lines, and
fake date/time stamps. Also, multiple violations of the California
Consumers Legal Remedies Act, including false representations that membership in
Adult Action Cam is free, false representations as to the size of Adult Action
Cam's membership, false representations as to how many people were online at any
particular moment, false representations as to how many new members joined on
any particular day, deceptive random text in the body of the emails, false
representations as to Adult Action Cam's connection with me and with the
supposed senders of the spam, false representations of the geographic origins of
the spam, etc. Click
here
to read the first amended complaint as filed in California court; which was
removed to federal court.
[Note that although the first amended complaint still refers to Carolynn Tilga
as a defendant, the judge granted her motion for
dismissal after
she represented to the court that she sold two of her companies to a Maltese
company, not that she provided much detail on that alleged sale, and the spams
at issue were sent after the sale date. However, the case is still quite live
against the other defendants.]
$1.1 million default judgment entered. However, collecting is
another matter. See Tucows, above.
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MY ATTORNEY |
I am represented by Timothy Walton, a California attorney (in Aptos) with extensive experience in the spam and technology areas, who shares my passion for fighting spam. www.timothywalton.com
