Cyber security service wants injunction thrown out.
Whois data and security service DomainTools has appealed a preliminary injunction brought against it by .NZ registry Domain Name Commission Limited (DNCL).
DNCL sued DomainTools in June 2018 over DomainTools’ collection and publication of .NZ Whois data. It argued that DomainTools’ actions violated DNCL’s terms of service, which are provided with each Port 43 Whois query result.
A Federal District judge granted an injunction that ordered DomainTools to not collect any more .NZ Whois records and to remove any previously published records while the lawsuit proceeded.
DomainTools appealed the decision to the Ninth Circuit Court of Appeals.
In its opening brief (pdf), DomainTools argues that DNCL’s terms of service were not binding on DomainTools because of how the terms of service were published. Including the terms with each Whois result is considered a “browsewrap” agreement; the other party does not check a box or make any other affirmative action to agree to the terms.
The company says that the lower court’s view should not apply because all of DomainTools’ Whois queries were “conducted by an automated program on a dedicated computer-to-computer channel acting without human intervention.”
It also says that the terms were written in a way that didn’t suggest that DomainTools’ use of the data violated the terms.
DomainTools wants the court to weigh the negative impact to DomainTools’ customers against the impact on .NZ registrants whose information is published.
I hope and pray that DomainTools lose this case. I also would suggest to anyone in Europe who receives a UDRP in which the Complainant uses Data collected by Domain Tools (and bought by the Complainant) that they look carefully and get advice as to whether they may have a Case against DomainTools for breach of privacy and/or any other European Data Laws. They may well have one ,against the complainant as well.
ADD: “…against the Complant and/or their Lawyers….”
DomainTools has been ignoring C&D notifications from the different registrars and registries for 17 yrs. They know they are violating the terms of service by capturing the whois information. No one has really pushed the issue. Congratulations to NZ registries for following through.
DT has the nerve to charge a lot of money for something they got for free.
Rubens Kuhl says
Their BS that an automated computer program is not bound by terms and conditions is incredibly cynical. They deserve going down.
Besides all of the above, they charge ridiculously high fees to see their data. So they can afford their lawyers.