Register.com: Baidu Can’t Sue Us for Negligence. Its In Our Contract.
Monday, March 22nd, 2010
Domain name registrar argues that you can’t sue it for negligence because it’s in the TOS.
What happens if you register a domain name at Register.com and then Register.com screws up? Tough luck.
That’s the message the company is sending by asking a court to dismiss a lawsuit Baidu brought against it for handing over the keys to its account to a criminal.
In a motion to dismiss (pdf), Register.com’s representatives write:
Asserting a laundry list of inflammatory claims, Baidu seeks to hold Register liable for the January 11, 2010 cyber-attack, which appears to have originated from unknown criminals who also targeted sites such as Twitter, and which resulted in a brief interruption of service on Baiduâ€™s Web site, baidu.com. But Baidu fails to inform the Court that when it registered its domain name through Register more than a decade ago, it expressly agreed to waive any future claims against Register for precisely the kind of service interruptions that form the basis of this lawsuit. Indeed, in numerous provisions of the partiesâ€™ contract, Baidu agreed that it would not and could not bring the very claims it now attempts to assert.
This seems like it’s on shaky grounds. Register.com didn’t just mess up, it really f’d up. It’s almost unbelievable.
If I park in a parking garage, I know the ticket says the garage isn’t responsible for theft. But if the garage operator hands a crow bar to a thief to break into my car, I can hold the operator responsible.
But Register.com claims its mistake was nominal:
In terms of the criminal attack, then, Baiduâ€™s allegations boil down to the core of what actually happened here: a customer service agent mistakenly verified a customer by failing to confirm that the correct security code was provided back by the requester. But that is not an allegation of gross negligence; at best, it is simple mistake or ordinary negligence.
You should re-read what happened and decide for yourself.
Register.com also suggests that Baidu filed the complaint in part because Google had suggested it was moving out of China at the time. (See footnote 9 in the Motion to Dismiss).