[registrars] New York State Domain Law

[Nevett, Jonathon]

Registrars:

Just an FYI that on August 1, 2007, New York State signed into law a measure that prohibits the practice of registering a domain name that is similar to or the same as the name of a living person or business with the specific intention of offering to sell that domain for a profit.  The new law provides for injunctive relief, including forfeiture or cancellation of the name, and civil penalties against the registrant of up to US$1,000 for each day the violation occurs.  

The original version of the bill made the registrars of record liable for injunctive and/or monetary penalties for all such registrations, but the final bill limited registrar liability as follows: 

"3. The registrar, domain name registry or other domain name registration authority shall not be liable for injunctive or monetary relief under this section except in the case of bad faith or reckless disregard, which includes a willful failure to comply with any court order."

Finally, there is a question of whether the law is even applicable to registrars outside of NY.  

"4. In a civil action commenced under this section, a domain name shall be deemed to have its situs within the state if the domain name registrar, registry, or other domain name authority that registered or assigned the domain name is located within the state."

Here is the full text of the bill that was signed into law:

Thanks.

Jon
___________

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. The general business law is amended by adding a new article 9-C to read as follows:

ARTICLE 9-C
CYBER PIRACY PROTECTIONS; DOMAIN NAMES

Section 146. Short title.
Section 147. Definitions.
Section 148. Unlawful registration of domain name.
Section 149. Civil remedies.

§ 146. Short title. This article shall be known and may be cited as the "domain names cyber piracy protections act".


§ 147. Definitions. For the purposes of this article, the following terms shall have the following meanings:

1. "Domain name" means any alphanumeric designation that is registered with or assigned by any domain name registrar, domain name registry, or other domain name registration authority as part of an electronic address on the internet.

2. "Internet" means the international computer network of both federal and non-federal interoperable packet switched data networks.

3. "Traffic in" refers to transactions that include, but are not limited to, sales, purchases, loans, pledges, licenses, exchanges of currency, or any other transfer for consideration or receipt in exchange for consideration.


§ 148. Unlawful registration of domain name.

1. No person or entity shall register a domain name that consists of the name of another living person, or a name substantially and confusingly similar thereto, without that person's or entity's consent, with the specific intent to profit from such name by selling the domain name for financial gain to that person or any third party.

2. A person or entity shall be only liable for a violation of subdivision one of this section if such person or entity is the domain name registrant or such registrant's authorized licensee.

3. A person or entity who in good faith registers a domain name consisting of the name of another living person, or a name substantially and confusingly similar thereto, shall not be liable under this section if such name is used in, affiliated with, or related to a work of authorship protected under title 17 USC, including a work made for hire as defined in 17 USC 101, and if the person or entity registering the domain name is the copyright owner or licensee of the work, the person or entity intends to sell the domain name in conjunction with the lawful exploitation of the work, and such registration is not prohibited by a contract between the registrant and the named person.


§ 149. Civil remedies.

1. Upon the commission of a violation of this article, an application may be made by the attorney general to a court having jurisdiction to issue an injunction against the person or entity that registered the domain name in violation of this article, and upon notice to the respondent of not less than five days, the court may award injunctive relief, including the forfeiture or cancellation of the domain name. Upon receipt of a court order for injunctive relief, the registrar, domain name registry or other domain name registration authority with which the person or entity has registered the domain name with, shall comply with such order's requirements. If it shall appear to the satisfaction of the court that the person or entity who registered the domain name with the registrar, domain name registry or other domain name registration authority, has committed a violation of this article, the court shall enjoin and restrain such person or entity from any further violation without requiring proof that any person has, in fact, been injured or damaged thereby.

2. In addition to injunctive relief, the court may fine the person or entity that registered a domain name in violation of this article, one thousand dollars for each day the violation occurs. The court may also order the transfer of the domain name as part of the relief awarded.

3. The registrar, domain name registry or other domain name registration authority shall not be liable for injunctive or monetary relief under this section except in the case of bad faith or reckless disregard, which includes a willful failure to comply with any court order.

4. In a civil action commenced under this section, a domain name shall be deemed to have its situs within the state if the domain name registrar, registry, or other domain name authority that registered or assigned the domain name is located within the state.


§ 2. This act shall take effect on the one hundred twentieth day after it shall have become a law. Provided, that any rules and regulations necessary for the implementation of this act may be promulgated on or before its effective date.