Representatives Introduce Bill to Deter Domain Name Fraud

February 3, 2004. Rep. Lamar Smith (R-TX) and Rep. Howard Berman (D-CA) introduced HR 3754, the "Fraudulent Online Identity Sanctions Act", a bill to provide additional civil and criminal remedies in actions that also involve domain name fraud.

Rep. Howard BermanRep. Smith and Rep. Berman (at right) are the Chairman and ranking Democrat on the House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property (CIIP).

The bill addresses problems associated with the registration of domain names with false information. For example, law enforcement authorities use the Whois database of domain name registration information to identify and locate people who use web sites to commit crimes. False registration information makes identifying the fraud artists more difficult. Similarly, false registration information makes it harder for trademark holders to pursue cybersquatters who register domain names that infringe their trademarks. False registration information also makes it harder for copyrights holders and manufacturers to locate online infringers and online sellers of counterfeit goods.

The CIIP Subcommittee held a hearing on this issue on February 4. See, story titled "House Subcommittee Holds Hearing on False Domain Name Registration Data" in TLJ Daily E-Mail Alert No. 830, February 5, 2004.

The bill as introduced creates no new civil or criminal prohibition of registering a domain name with false information. Nor does it impose any requirements upon domain name registrars to verify domain name registration information, to refuse to register domain names when it knows that the registration information is false, or to cancel registrations made with false registration information.

Rather, the bill adds new civil remedies and criminal penalties for violation of existing statutes, where the violation also involves registering a domain name with false information.

The bill amends the Trademark Act to provide that a violation of Section 1117 shall be considered willful, if the violation involves registering a domain name with false information.

The bill amends the Copyright Act to provide that, for the purpose of calculating statutory damages for infringement, the infringement shall be considered willful if the infringement also involves registering a domain name with false information.

The bill does not create a new criminal offense of  registering a domain name with false information. Rather, it provides that if one commits a felony offense, and in furtherance of that offense, registers a domain name with false information, then the sentence imposed for that offense shall be increased.

First, the bill would amend 11 U.S.C. 1117 (Trademark Act of 1946) to provide that "(e) In a case of a violation under this section, occurring at or in connection with an online location, the violation shall be considered to be willful for purposes of this section if the violator, or a person acting in concert with the violator, knowingly provided material and misleading false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering a domain name used in connection with the online location, or in maintaining or renewing such registration."

Second, the bill would amend the section of the Copyright Act that provides remedies for infringement, 17 U.S.C. 504

Section 504(c) addresses statutory damages. The bill would add new language to Section 504(c)(2): "In a case of infringement occurring at or in connection with an online location, the infringement shall be considered to be willful for purposes of this paragraph where the copyright owner sustains the burden of proving, and the court finds, that the infringer or a person acting in concert with the infringer knowingly provided material and misleading false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering a domain name used in connection with the online location, or in maintaining or renewing such registration. ..."

Both the amendment to Title 15 (trademarks) and to Title 17 (copyrights) use the term "online location". This term is not explained or defined by the bill.

Finally, the bill would amend the sentencing provisions of the Criminal Code that are codified at 18 U.S.C. 3559 to add a sentencing enhancement for offenses that involve falsification relating to domain names.

The bill would add a new subsection (f), that provides, in part, that "The maximum imprisonment otherwise provided by law for a felony offense shall be increased by 7 years if, in furtherance of that offense, the defendant knowingly provided material and misleading false contact information to a domain name registrar, domain name registry, or other domain name registration authority in connection with a domain name registration."