, Inc. v. Verio, Inc., 356 F.3d 393 (2d Cir. 2004)

Case Name:, Inc. v. Verio, Inc.
Defendant/Appellant: Verio, Inc.
Citation: 356 F.3d 393 (2d Cir. 2004)

Issue: Whether the defendant had assented and was bound by the terms of the plaintiff’s website when it was daily accessing the website through a software robot.

Key Facts: The defendant created an automated software program to submit queries for WHOIS information from various registrars, including the plaintiff. The defendant then used the information to conduct solicitations by email, telemarketing, and direct mail. The plaintiff demanded the defendant to stop because some of its clients were getting upset and then changed its restrictive legend to state that it prohibited use of the WHOIS information for mass solicitation “via direct mail, electronic mail, or by telephone.

The ICANN Agreement requires the registrar to permit use of its WHOIS data “for any lawful purposes except to: …support the transmission of mass unsolicited, commercial advertising or solicitations via email (spam).

Register asserted that Verio was:
(a) causing confusion among customers, who were led to believe Verio was affiliated with Register
(b) accessing Register’s computers without authorization, a violation of the Computer Fraud and Abuse Act; and
(c) trespassing on Register’s chattels in a manner likely to harm Register’s computer systems by the use of Verio’s automated robot software programs

Holding:  Verio had assented and was contractually bound by the terms of use of Register’s web site because Verio had used the site many times and was well aware of Register’s restrictions on use.

Where a benefit is offered, subject to stated conditions, and where the offeree takes the benefit with knowledge of the conditions, then the offeree is deemed to have accepted the conditions.

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