"First, Verio must have been braindead to continue after Register.com warned them off.|
Second, Register.com and most other registrars continue to have their WHOIS used for mass marketing purposes, although SFAIK this is the only such case ever brought regarding the practice. Indeed NetSol used to sell their bulk WHOIS data on CD for $10,000 or so (the ICANN registrar's agreement explicitly allows such a practice, with the obligatory proviso that it not be used for mass marketing), and it wasn't long before the spammer community was being offered bootlegs for $1,000. Perhaps at best the first injuction slowed some others (those who play semi-nice) from making the problem even worse.
Third, it was predictable that this case would take years to come to any kind of conclusion, so perhaps it was all about monetary damages. Register.com could use that right now as they aren't in the best of shape financially while Verio continues along as one of the larger web hosting companies.
Fourth, I happen to agree with the now deceased dissenting judge that ICANN policy only banned WHOIS use for email marketing, not by telephone (by post is problematic given ICANN's wording), and I was then a registrant through Register.com and got two of those Verio phone calls (and I'm in Canada). Also the ICANN registrar's agreement then in place specified that registrars had no ownership rights to the data, although they do (I think there have been a few cases on this point) have control over how their servers are used.
Finally, I am somewhat confused about the two parties being classed as competitors. Register.com was a domain registrar (their front page now offers web hosting while classing it as a new service), and Verio was a web hosting company (their front page now offers domain name registration but I suspect they are simply a reseller as they don't appear on ICANN's accredited registrar list.
To digress somewhat, that list is not to be believed as I previously pointed out here regarding the case of bondillc.com. They were treated as a registrar by registries at various times throught being given preferential access and their front page claimed ICANN accreditation, all a year before they were listed. And, looky here, bondi seems to have disappeared from the list again. Hilariously, as of a week or so ago, either through accident or design they now appear to have disappeared entirely. This wasn't entirey a digression, various aspects of bondi's actions mirrored Verio's, but ICANN seemed to be okay with that just so long as they got their cut.
The mass marketing restriction on WHOIS data use was, and remains, one of the few restrictions that ICANN and its powerful trademark lobby would allow on WHOIS data. Spammers, Intellectual Property lawyers, oppressive governments, stalkers, and other worthies remain free to use WHOIS contact info as they see fit, just so long as they do it more selectively. -g"