Tuesday, Business Insider reported that Martin Shkreli has spent the last several months buying up domain names associated with at least eight journalists who have criticized him. The pharmaceutical entrepreneur, who was convicted earlier this month of securities fraud, has now begun to customize the sites with the goal of mocking the reporters.
On a site associated with CNBC reporter Caroline Moss for example, Shkreli wrote "Everything you need to know about this CNBC safe spacer." A similar site bearing Vanity Fair writer Maya Kosoff's name sarcastically reads "Here we honor one of the most vibrant Social Justice advocates today." A WHOIS lookup confirms that both websites were registered with domain provider GoDaddy by Martin Shkreli earlier this year.
Shkreli offered to sell a domain connected to NY Post reporter Emily Saul to her for $12,000, according to Business Insider. On a phone call, Shkreli told me the proposal was a joke. "I'm a very rich guy. I don't need $12,000," he said. "I would never sell any of these domains for any price." Saul declined to comment, citing company policy.
Shkreli is clearly trying to agitate, but is what he's doing illegal? According to Shkreli, the answer is no. "This is not illegal," he told me. "There's nothing illegal about buying a domain name that's the same name as someone's name." He mentioned he had consulted lawyers before purchasing the websites, which he told me were bought to test software on the backend that his new company is developing.
According to a legal expert I spoke to, Shkreli could be wrong. Several federal cyberlaws protect individuals like the journalists Shkreli targeted from domain disputes like this one. "There are certainly a fair number of options that these individuals would have," David J. Steele, a lawyer specializing in trademark and internet law and a professor at Loyola Law School in Los Angeles, told me on a phone call.
What's working against Shkreli, according to Steele, is that he has purchased numerous domains. "You can show a pattern of abusive registrations," he said.
Steele outlined for me three main ways domain disputes like the one Shkreli started can be legally resolved:
1. An administrative proceeding
When you buy a domain, like cats.com for example, you enter into a contract with a domain provider, which in Shkreli's case is GoDaddy. As a part of that contract, Shkreli agreed to abide by an international guideline called the Uniform Domain-Name Dispute-Resolution Policy (UDRP), which was created by the Internet Corporation for Assigned Names and Numbers (ICANN). The policy was enacted to protect companies and individuals from people who "cybersquat," or hold onto a domain for no reason, as well as other kinds of abuse.
In a statement to Motherboard, GoDaddy confirmed it would comply with UDRP hearings or other legal actions whenever they're brought. "Whichever remedy is used, GoDaddy will comply with the instructions of the court or arbitration panel," a spokesperson said in an email.
If the journalists were to seek an administrative proceeding under the rules of the UDRP, it would be on them to prove that Shkreli registered the domains with "bad faith intent" and that they are "confusingly similar to a trademark or service mark" in which the journalists have a right to. That means they would have to show that their name is connected to the work they do.
Lastly, the reporters would need to demonstrate that Shkreli doesn't have any "rights or legitimate interests" in the domains that he purchased.
Steele said that, unlike going through the federal legal system, the process would be relatively fast, which is an upside. But the reporters would only be able to get the domain name from Shkreli, and not any damages.
This 1999 law was aimed at preventing people from cybersquatting as well. The law "provides a civil cause of action to a trademark holder for the registration, tracking in, or use of a domain name that is identical or confusingly similar to a trademark," Steele told me. Under this law, the reporters would still have the same burdens of proof as they would in an administrative hearing.
What's different, though, is the ACPA allows for statutory damages ranging from $1,000 to $100,000 per each domain name. If the journalists were to use ACPA, they would have a lot to prove in court. "The downside is that the reporters are going to have to show trademark rights in their names, which is going to be an uphill battle if they're not registered trademarks," Steele explained. "Generally personal names don't serve as trademarks."
Under the ACPA, courts look at whether the domain registrant tried to sell the domain. Though Shkreli said it was a joke, if Saul can prove that he tried to sell her the domain associated with her name, she could a stronger case. "Courts…routinely look to offers by the defendant to sell the domain name as evidence of his bad faith," Martin Samson, a partner at New York law firm Davidoff Malito & Hutcher, wrote in the Internet Library of Law and Court Decisions.
In 2014, Donald Trump used the ACPA in order to get four domains associated with his businesses back from a Brooklyn man who was cybersquatting on them. The judge in the case ruled in Trump's favor.
There's another federal law that aims to protect individuals when another person registers a domain in their name.
"The protection is a lot more narrow," Steele told me. The cyberpiracy protections for individuals requires that the journalists prove Shkreli registered the domains with "the specific intent to profit from such name by selling the domain name for financial gain."
If the reporters were to use this law, they would need to show that Shkreli intended to profit, which would likely be difficult. They also would only be able to recover the domain itself, as well as attorney's fees (no damages).
In addition to a suit brought using one of the two federal laws discussed here, the reporters could also tack on additional charges like slander or defamation. In response, "there are fun first amendment issues he [Shkreli] will probably bring up," Steele said.
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