Solid Host, Nl v. Namecheap, Inc.

652 F.Supp.2d 1092

SOLID HOST, NL, Plaintiff, v. NAMECHEAP, INC., a Delaware Corp. d/b/a Namecheap and Whois Guard Protected; Demand Media, Inc., a Washington Corp. with its principal place of business in Los Angeles, d/b/a eNom, and John Doe 1, Defendants.

Case No. CV 08-5414 MMM (Ex).

United States District Court, C.D. California.

May 19, 2009.

COPYRIGHT MATERIAL OMITTED

G. Randall Garrou, John H. Weston, Weston Garrou Walters and Mooney, Los Angeles, CA, Marc J. Randazza, Weston Garrou Walters and Mooney, Altamonte Springs, FL, for Plaintiff.

Eugene Rome, Rome & Associates APC, Los Angeles, CA, Frank E. Merideth, Jr., Gregory A. Nylen, Wendy M. Mantell, Greenberg Traurig, LLP, Santa Monica, CA, for Defendants.

ORDER DENYING DEFENDANT NAMECHEAP'S MOTION TO DISMISS

MARGARET M. MORROW, District Judge.

On August 17, 2008, plaintiff Solid Host, NL filed this action against defendants NameCheap, Inc., dba Whois Guard Protected; Demand Media, Inc., dba eNom, Inc.; and John Doe 1.¹ Solid Host alleges that Doe "hijacked" its domain name, . On March 20, 2009, NameCheap filed a motion to dismiss the claims asserted against it for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Technical Background

This action requires knowledge of certain of the technical aspects of registering domain names for internet web sites. The court will briefly summarize this technical background before outlining the facts of the case.

The location of individual sites on the internet is denoted by an internet protocol ("IP") address composed of a string of four groups of digits separated by periods. Each site has a unique numeric internet address. Lockheed Martin Corporation v. Network Solutions, Inc., 141 F.Supp.2d 648, 650-51 (N.D.Tex.2001) ("Lockheed Martin II"); see also Smith v. Network Solutions, Inc., 135 F.Supp.2d 1159, 1160 (N.D.Ala.2001). For ease of access, the numeric addresses typically correspond to more easily remembered alphanumeric "domain names" (such as ), which internet users can enter in their web browser to access specific sites. Lockheed Martin II, 141 F.Supp.2d at 650-51; Smith, 135 F.Supp.2d at 1160. A domain name is composed of two parts, separated by a period. The portion to the right of the period, i.e., the "com" in , is known as the "top level domain" or "TLD." Smith, 135 F.Supp.2d at 1160-61; see also American Girl, LLC v. Nameview, Inc., 381 F.Supp.2d 876, 879 (E.D.Wis.2005). The portion to the left of the period, generally a series of a numbers and letters chosen by the operator of the site, i.e., the "google" in , is known as the "second level domain" or "SLD." Smith, 135 F.Supp.2d at 1160-61.

One wishing to use a specific domain name must register the name with one of numerous competing companies known as registrars. In 1993, pursuant to a contract with the National Science Foundation, Network Solutions, Inc. ("NSI") became the sole registrar for domain names in the most commonly used TLD's (".com," ".net," ".org," and ".edu"). Id. at 1161. In 1998, the federal government adopted a policy favoring competitive domain name registration. "In furtherance of this policy, a private, non-profit corporation, the Internet Corporation for Assigned Names and Numbers (`ICANN'),[<sup>2</sup>] was formed to assume responsibilities `for managing the allocation of Internet Protocol numbers and the domain name system. Also as part of the transition to a competitive system, NSI's domain name registration service was divided into two separate units: a registrar and a registry." Id. The registry maintains a centralized, publicly accessible database of information concerning all domain names in a TLD, known as the Whois (or WHOIS) database;³ this database is compiled from information submitted by registrars. Id. While there is only a single registry for each TLD, there are numerous competing registrars. Id. Registrars control the IP addresses associated with particular domain names.⁴ Customers seeking to register specific domain names interact with registrars; the registrars submit information regarding domain names to the registry, which includes the information in the public Whois database. A registrar must be accredited by ICANN for each TLD in which it operates. As part of the certification process, all registrars must sign the ICANN Registrar Accreditation Agreement (the "ICANN agreement").⁵

Generally, an individual seeking to use a domain name submits an online application to a registrar. Id. at 1161-62. "[I]f someone submits an application for a particular domain name that already exists in the Registry WHOIS database by virtue of a prior registration, that name cannot be registered again, and the applicant is advised that the sought domain name is unavailable .... If there is no existing registration for a given SLD name within a given TLD, [however,] that domain name is considered available and generally may be registered on a first-come, first served basis." Id. at 1162. The registrant must provide personal and contact information that becomes part of the Whois database. American Girl, 381 F.Supp.2d at 879. The Whois database "allows all registrars to determine almost instantaneously which domain names are already registered and therefore unavailable to others," and "allow[s] a person whose registration application for a particular domain name has been denied as unavailable to determine which registrar registered the name he desires with the Registry." Smith, 135 F.Supp.2d at 1160-62.

The fact that "every person who wants to register a domain name either consents to put some sort of publicly accessible contact information on line, or is unable to register the domain name" has drawn criticism from privacy and free speech advocates. See Matthew Bierlin & Gregory Smith, Privacy Year in Review: Growing Problems with Spyware and Phishing, Judicial and Legislative Developments in Internet Governance, and the Impacts on Privacy, 1 I/S: J.L. & POL'Y FOR INFO. SOC'Y 279, 313-14 (2005); see also, e.g., Dawn C. Nunziato, Freedom of Expression, Democratic Norms, and Internet Governance, 52 EMORY L.J. 187, 256 (Winter 2003) ("Because of the important role anonymous speech serves within expressive forums— which in turn are integral to democratic governments—ICANN should, in reevaluating its policies to accord meaningful protection for freedom of expression, revise its policy requiring domain name holders publicly to disclose their names and addresses. While protecting anonymous Internet speech is clearly an important component of free speech within the United States, it is even more important for ICANN to protect the identity of speakers from countries that are more inclined to retaliate against speakers based on the ideas they express"). ICANN has been reconsidering its policies in light of these concerns. Bierlin & Smith, supra, at 314. In addition, there has been a growth in "companies that will register domain names for individuals and act as a proxy by using the company's contact information." Id. Such services allow domain name registrants concerned with maintaining their privacy to remain anonymous. Naturally, these services also appeal to registrants who wish to conceal their identities for illegitimate purposes. Name-Cheap's provision of an anonymity service to Doe is central to the dispute before the court.

B. Allegations in Solid Host's Complaint

1. The Parties

Solid Host is a corporation based in the Netherlands, which is in the business of providing various internet-related services, including web hosting.⁶ Defendant eNom is an ICANN-accredited registrar and a signatory to the ICANN agreement.⁷ Defendant NameCheap is also an ICANN-accredited registrar and signatory to the ICANN agreement; Solid Host alleges that it "does not currently know whether [NameCheap] may have acted as [a registrar] in connection with the facts of this particular case."⁸ In addition to functioning as a registrar, NameCheap offers an anonymity service known as "Whois-Guard," whereby NameCheap becomes the registered owner of a domain name desired by a customer, and licenses the domain name to the customer.⁹ As a result, NameCheap's contact information rather than the customer's appears in the Whois database.¹⁰ Defendant Doe is an anonymous individual described by Solid Host as a "hacker."¹¹

2. Doe's Hijacking of Solid Host's Domain Name

Solid Host alleges that it is the owner of the domain name .¹² It registered this name through eNom in December 2004, and has used the domain name to conduct its business since that time.¹³

Solid Host asserts that on Monday, August 4, 2008, due to a "security breach" at eNom, "Doe unlawfully gained access to [Solid Host's] domain registration account," obtained Solid Host's login and password information, and "stole" the domain name .¹⁴ According to the complaint, Doe "either by himself, or through his agent, defendant Name-Cheap ... moved [Solid Host's] domain name to another domain registration account with ... eNom."¹⁵ Doe "or Name-Cheap acting at Doe's direction" altered the IP address associated with , so that internet users accessing viewed a website "controlled solely by Doe" rather than Solid Host's site.¹⁶ The website stated that the domain name was for sale, and provided an email address for inquiries.¹⁷ Solid Host alleges that Doe and NameCheap entered into a contract pursuant to which NameCheap agreed to become the registrant for listed in the Whois database and to "license[ ] the domain's operability and functionality back to Doe."¹⁸ Once the registration for was switched to a new account, Solid Host's owner, Andre Van Vliet, could no longer alter the IP address associated with the domain name to re-direct internet traffic to Solid Host's website.¹⁹

After discovering that he could no longer control the web site, Van Vliet attempted to regain access of the domain name. Van Vliet contacted the email address...