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    Lawsuits and Judicial Decisions Appeals Court Upholds Injuction Against Verio WHOI
    posted by michael on Saturday January 31 2004, @06:05AM

    fnord writes "In a split decision the 2nd U.S. Circuit Court of Appeals has upheld an injunction barring Web hosting company Verio from mining the contact info in the WHOIS database of ICANN registrar Register.com for mass marketing purposes. More coverage (more coverage here and here.

    The case has meandered through the US legal system for three and a half years so far, to which the many documents regarding it contained at ICANN.org can attest. Perhaps someone familiar with US law can report on whether this is a final judgement or if it will continue to meander.

    Perhaps it is because IANAL, but this case has struck me as the height of idiocy (which is to say normal for anything in which ICANN plays a role) from the beginning for a number of reasons."

    "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"

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    · Also by michael
    This discussion has been archived. No new comments can be posted.
    Appeals Court Upholds Injuction Against Verio WHOI | Log in/Create an Account | Top | 3 comments | Search Discussion
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    by fnord (reversethis-{moc.oohay} {ta} {k2yorg}) on Saturday January 31 2004, @06:41AM (#12908)
    User #2810 Info
    With regards to similar lawsuits I don't know how I could forget the many regarding the Domain Registry of * [domainjacking.com].

    And I shouldn't need a lawyer to tell me that an injunction isn't the final ruling in this case, it will presumably continue to meander. -g

    [ Reply to This | Parent ]
    ICANN should order "whois," "nic" names seized
    by dmehus on Saturday January 31 2004, @08:53AM (#12910)
    User #3626 Info | http://doug.mehus.info/
    ICANN should order the critically important "whois" and "nic" names in COM, NET, and ORG seized and used for the purposes of their respective registries.

    Verio needs to stop profiting off of these two key and central names. They really should belong to their registry for proper use. :)

    Nonetheless, it's a good ruling. Was this a ruling of the full appellate court or a three person panel? If it was just the three person ruling, I think Verio could appeal to the full appellate court but they'd most likely lose.

    Beyond that, the next step would be to appeal to the U.S. Supreme Court. However, I really don't think they'd hear it.

    Doug Mehus http://doug.mehus.info/ [mehus.info]
    [ Reply to This | Parent ]

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