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MARY JO WHlTE
United States Attorney for the
Southern Distnct of New York
By: STEVEN M. HABER (SH-83 15)
Assistant United States Attorney
100 Church Street - 19~ Floor
New York, NY 10007
Tel. (212) 637-2718
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PGMEDIA, INC, :
: DECLARATION OF
v. DR GEORGE STRAWN
CIVIL ACTION NO.
: 97 Civ. 1946 (RPP)
NETWORK SOLUTIONS, INC. and
NATIONAL SCIENCE FOUNDATION :
GEORGE STRAWN declares, pursuant to 28 U.S.C. § 1746, as follows: 1. I
am the Advanced Networking Infrastructure and Research ("ANIR")
Division Director for the Computer and Information Science and
Engineering ("CISE") Directorate of the National Science Foundation
("NSF'), a position I have held since 1995. I also co chair the
Federal Interagency Large Scale Networking working group, which
oversees thc Presidential Next Generation Internet Initiative. From
1991 to 1993, I was NSFNET Program Director in the same division and,
among other things, I was responsible for the transition from NSFNET
to the Internet. I have served at NSF full time while on leave from
Iowa State University, under the Intergovernmental Personnel Act, 5
2. From 1985 to 1995 I was Director ofthe Iowa State University
Computation Center, where I was a charter member and chair of the
advisory committee of an NSF supported regional network, MIDNET. From
1983 to 1986 I was chair of the Iowa State Department of Computer
Science. I have been an Iowa State Computer Science faculty member
since 1966 and have worked in the programming language and compiler
area. Prior to going to Iowa State I spent four years with IBM as a
systems engineer and computer salesman. I hold a Ph.D. in abstract
algebra from Iowa State (1969) and a BA in mathematics and physics
from Comell College (1962).
3. I am ultimately responsible for all aspects of program management
within the ANIR Division of CISE, and submit this declaration in
opposition to plaintif~s motion for partial summary judgment and in
support of NSF's cross-motion for summary judgment. The statements
herein are based both on personal knowledge and on information
available to NSF.
BACKGROUND ABOUT THE INTERNET
4. Today's "Intemet" is an overarching network of computer networks
and individual computers that are interconnected by communications
facilities, such as telephone lines.
5. The antecedents of the Internet were systems for two relatively
small groups of research-oriented governmental, academic and corporate
entities - ARPANET and NSFNET. The earlier group, ARPANET, was engaged
in military research that received principal support from the
Depaltment of Defense and related agencies. The second group, NSF~ET,
consisted of many of the same antities that wae included in the
ARPANET, along with other entities engaged in general scientific
research that received support from numerous sources, including NSF
and other federal agencies, academic institutions and corporate
6. The "ARPANET phase" of internet networking operated between
approximately 1969 to 1985. During this phase, the networking system
so~ware was called Network Control Protocol. The "NSFNET phase"
operated between approximately 1985 and 1995.
During this phase, a new generation of network system so~ware was
utilized that was called Transmission Control ProtocoUIntemet Protocol
("TCP/IP"). And since approximately l99S, this networking has been
commonly referred to as "the Internet" a~er the Internet Protocol part
ofthe TCP/IP network so~ware. Throughout this declaration, I sometimes
refer to the ARPANET/NSFNET phases as the "early Internet."
7. Initially, most of the individual users of the early Internet were
affiliated either with federal government agencies or with academic or
corporate institutions carrying out research that was sponsored by one
or more ofthose agencies. Each of these research institutions had
timeshared mainframe computers and in the early stages of this
evolution users would typically have access only through computer
terminals connected to one of the mainframes.
8. As the number of institutions and sites connected to NSFNET grew,
and other fedcral research agencies interconnected their networks with
the NSFNET, organizations wishing to communicate with this
fast-growing "research Internet" and utilize its resources began to
interconnect their &cilities and networks with it (and with the
9. Today's diversified Internet community thus grew from a relatively
small-scale research-oriented environment. Historically, cultural
ethics during the ARPANET/NSFNET days were based on cooperation and
collegiality. This environment allowed participants in the community
to handle many tasks informally, with many important responsibilities
delegated to individual persons.
10. The environment further allowed for voluntary participation in
internet networking. Networks or institutions that elected to
participate were required to operate in accordance with the
consensus-based standards in order to communicate with similar
entities through internet networking. The fundamental requirement for
such interconnection was agreement to use TCP/IP to exchange traffic
with other connected networks.
11. The "best practices" for interconnection and new protocols for the
growing number of networks were determined by a group of people from
various organizations involved in the early Intemet. The activities of
the group were supported by NSF and other federal agencies. In 1986,
this group became known as the Internet Engineering Task Force
12. The IETF is a loosely self-organized group of people who make
technical and other contributions to the engineering and technologies
of the Internet. According to its website (annexed hereto as Exhibit
A), the IETF began (by that name) in 1986 with only 15 attendees at
its first meeting, utilizing a collegial model in which individuals
would put forward a suggestion and others would add to or amend it
until they had "rough consensus and running code." The Internet
community's consensus would ultimately be published on the
Intemet‹designated as a Request For Comments ("RFC")‹by the Internet
Architecture Board (originally known as the Internet Activities
Board), an affiliate organization of the IETF. 13. In order for the
Intemet to operate, each entity (computer, router, network, etc.)
connected to the Internet must have one or more unique numeric
"addresses" which will permit other connected entities to send it
communications. Thus, every entity connected to the Internet has at
least one numeric address, called an "IP number," under an addressing
system that was implemented in 1983 on the ARPANET. IP numbers are
four strings of numbers set apart by periods, with the IP number
totaling no more than twelve digits.
14. During the early Intemet, these addresses were maintained and
assigned by one individual in order to insure uniqueness and
reliability. That individual was Dr. Jon Postel at the University of
Southern California's Information Sciences Institute, who performed
this wor~ pursuant to the ARPANET experiment. Dr. Postel's project
subsequently became identified as the Internet Assigned Numbers
Authority ("IANA"). The IANA is still responsible for overseeing the
allocation of IP numbers, a task it undertakes under contract with the
Department of Defense.
15. Initially, network users informally assigned names to their own
computers and these names were tracked and associated with their
corresponding IP numbers in a file maintained centrally and downloaded
to the host computers at all Internet sites. It was widely felt that
these names would be easier for people to remember than the
twelve-digit IP numeric address.
THE DOMAIN NAME SYSTEM
16. In 1987, RFC 1034 (copy annexed hereto as Exhibit B) announced a
new hierarchical Domain Name System ("DNS") for associating names with
IP numbers on the Internet. Under the DNS, top level domain names,
consisting of two or three characters, identi~ the highest
subdivisions in which an address can be located. Second level and
lower level domain names identify network "host" computers and
17. The DNS utilizes a system of databases that convert Internet
domain names (e.g., bm.com or nsf.gov) into IP numbers (e.g.,
184.108.40.206). This conversion function makes it possible for Internet
users to address messages to other users and to Internet-attached
computers by name (e.g., ibm.com or gstrawn~nsf.gov) rather than
number. The DNS database is "distributed" ~I.e., different segments of
the database are maintained on computers at various locations), so
that an IP number query may be routed consecutively to databases
located on different computers.
18. The groups of alphanumeric characters ("strings") that make up
domain names a~e separated by periods. The far right string is called
the top level domain ("TLD"); the next
is called the second level domain ("SLD"); and so on. In the above
examples, ".com" and ".gov" are TLDs; "ibm" and "nsf" are SLDs. Under
RFC 1034, no individual string can be longer than 63 characters, and
the total length of a domain name may not exceed 2S5 characters. Under
the DNS architecture, the only limit to the number of lower level
domains, or strings within a domain name, is that the total length of
the domain name must be within the maximum prescribed in RFC 1034.
19. As mentioned above, the DNS utilizes a "distributed" database:
different parts of the DNS database are stored on different
Internet-connected computers called domain name servers. Each of these
databases serves to assist in locating the intended recipient of an
Internet communication. Address inquiries seeking to convert a
particular domain name are processed hierarchically, that is, the
address query will begin by locating the name server for the TLD, then
the name server for the SLD, and so on.
20. At the highest level, there is a part of the DNS database called
"the root zone file" or "the dot" whose function is to "point the way
to" (direct the address query to) other parts of the DNS database
called the TLD zone files. The TLD zone files contain inforrnation
regarding the location of the seven "generic" (non-country) TLDs
(commonly referred to as "gTLDs") ~ ".com", ".org", ".net", ".gov",
".int", ".mil" and ".edu" -- as well as approximately 240 country code
TLDs such as ".US" or".UK". The country code TLDs (commonly referred
to as "ccTLDs"), are taken from the International Standards
Organization official list ("ISO 3166"), a copy of which is annexed
hereto as Exhibit C.
21. The TLD zone files in turn direct queries to the SLD zone files -
those parts of the distributed DNS database that contain entries for
all of the SLDs under the given TLD. For example, the ".com" zone file
contains entries for ibm.com and att.com, etc. Each of these SLD zone
files in turn directs queries to lower-level portions of the DNS
22. By following these "pointers," an Internet name-resolution query
will eventuaUy come to a part of the DNS database that contains an IP
number for the intended recipient ~ther than a pointer to yet another
narne server. This IP number is returned to the requesting computer.
23. It is, of course, necessary to maintain and update the DNS
database continuously. The new domain name information is obtained and
disseminated through a process called DNS registration. An Internet
user who wishes to register a domain name first obtains (from an
Intemet Service Provider or from an IP number registry) an IP number
to be associated with a desired domain name. Under the existing
registration system, if the desired domain name has not already been
registered in the TLD of the user's choice, it can - subject to
~ademark considerations not discussed here - be registered on a first
come, first served basis.
24. Most individual users of the Internet connect their personal
computers to an Internet Service Provider ("ISP") that has one or more
computers that are continuously linked to the Internet. Such users
will utilize the ISP's domain name as part of their Internet address,
and thus will not need a domain name of their own.
25. Because of the large number of requests for DNS name resolution
(conversion of domain names into IP numbers) that are occurring
continuously, the "root" and "generic TLD" zone files are replicated
at a number of different locations. This replication permits
concurrent processing of a greater number of name queries and thus
speeds up the operation of this part of the Internet.
26. This system of 13 identical root zone files is called the "root
server system." The master (called the "A") root server is maintained
by NSI in Herndon, Virginia, pursuant to the Cooperative Agreement and
RFCs 1174 and 1591 (annexed hereto as Exhibits F, G and H
respGctively). The other 12 root servers obtain the daily updated
domain name information by copying from the "A" root zone server. t
THE COOPERATIVE AGREEMENT AND NSF's INVOLVEMENT IN DNS
27. During the early Intemet, the IANA had responsibility for
registration of first-and second-level domain names. As such, the
responsibility for assigning IP numbers and registenng domain names
was centralized with the IANA. The Defense Information Systems Agency
Network Information Center, a military contractor-operated facility,
actually performed the number assignment registrations.
28. By the late 1980s, however, a significant number of new
registrants were research and educational institutions (primarily in
the .edu TLD), which were likely to be supported by NSF and other
civilian research agencies. Accordingly, NSF assumed support of
registration services for the non-military Internet.
29. Between 1987 and 1991, domain name and number registration were
the responsibility of the IANA under a Department of Defense contract.
The registry function was performed up to 1990 by SRI (formerly known
as the "Stanford Research Institute"), and from 1991 to 1992 by
Government Systems Incorporated ("GSr'). In March 1991, defendant
Network Solutions, Inc. ("NSr') began to perform the registry
functions as a subcontractor to GSI in support of the Defense Data
Network and Internet under contract with the Defense Information
30. In March 1992, NSF released Program Solicitation 92-24
(the"Solicitation") imiting competitive proposals for "Network
Information Services Managers (NIS Managers) for NSF~ET and the NREN."
(A true copy of the Solicitation is annexed hereto as Exhibit
' In 113 of Plaintiff~s Statement of Material Facts, the master root
server is referred to as thc "czar" of the other root servers.
Although the master root server does feed information to the other
root servers. equating the m ster root server to a "czar'- implies a
"czar-like" authority. To the contrary, the other root server
operators h ve no contractual or other legal relationship with the
master root server. They have a purely voluntary ~ociation with it
because of their common interests in a universally resolvable DNS.
D). The domestic, non-military portion of the Internet was defined to
include NSFNET, as well as otha federally sponsored networks,
collectively referred to as the National Research and Education
Network ("NREN"). Pursuant to the Solicitation, the NIS Manager
responsible for non-military registration services would provide
registration services for non milita~y domain names.
31. The Solicitation sought three types of "Information Services":
registration services for the non-military Internet; a central
directory and database service (also serving the broad Internet
community); and an information service (help desk etc.) to support new
institutions coming on to the Internet (usually with NSF support).
32. The best proposal in each of the three areas was submitted by a
different firm. NSI submitted the best proposal in the Registration
Services area (annexed in relevant part hereto in rdevant part as
Exhibit E), AT&T submitted the best proposal in the Directory and
Database area, and General Atomics submitted the best proposal in the
Information Services area. During the course of negotiations and as a
part of their best and final offers, the three firms were asked to
develop a service concept that would allow "one stop shopping" and a
seamless interface for the academic research community (NSF's primary
constituency). NSF wa;nted to simplify matters for the users so that
they would perceive only one service entity, ratha than the three
separate awardees. Thus, the concept the three firms developed
involved ope~ating under a single name with a uniform interface. The
name given to the joint activity was the "Internet Network Information
Center (InterNIC)." NSI, being responsible for domain name
registrations, is the domain name registrant of Internic.net.
33. The NSI Proposal, No. 92-93, described the registration services
to be provided as follows: "Network Solutions will provide
registration services to include the ROOT tomain, top-level country
code domains, and second level domains under .us, .edu, .com,
.gov, .org and .net. In addition, we will register inverse addresses
[matching IP numbers to domain narnes] ...."
34. Effective January I, 1993 NSI and NSF entered into Cooperative
Agreement No. NCR-9218742 (the "Cooperative Agreement" or
"Agreement"). A true copy of the Agreernent is annexed hereto as
Exhibit F. The Cooperative Agreement remains in effect through
September 30, 1998.
35. As a general matter, NSF uses either grants or cooperative
agreements in making federal financial assistance awards, depending on
the appropriate circumstances as defined in the Federal Grant and
Cooperative Agreement Act. 31 U.S.C. §§ 6301 -08. In this case, NSF
determined a cooperative agreement to be the instrument of choice
because, unlike a grant, the Foundation contemplated that this
situation would require "substantial involvement" by the agency.
36. The Cooperative Agreement named NSI as the NIS Manager. Though NSI
had not, at the point it began to implement the Agreement, been named
in an RFC as the Intemet Registry. However, the task of registering
second level domain names within five of the generic TLDs (or "gTLDs")
(".com", ".org", ".net", ".edu" and ".gov") was transferred to NSI
transferred from the GSI subcontract. Thus, NSI continued registration
services, but under the Cooperative Agreement. IANA continued its
function of overseeing the allocation of IP numbers and domain name
37. The Cooperative Agreement requires that NSI conduct its
registration services in accordance with RFC 1174. RFC 1174 (copy
annexed hereto as Exhibit G), issued in August 1990, recognizes that
the "Internet Registry" is the principal registry for all network and
autonomous system numbers, and maintains the list of root DNS servers
and a database of registered nets and autonomous systems. (See RFC
1174, Exhibit G, Art. 1.2 & 1.3).
38. In March 1994, RFC 1591 (copy annexed hereto as Exhibit H~- the
successor to RFC 1174 - was issued. RFC 1591, like RFC 1174, concerned
the functioning of the Internet Registry. However, while the earlier
RFC referred to the DNS only in passing (concentrating instead on the
allocation of IP numbers), the later RFC addressed in detail the
structure and operation ofthe DNS. RFC 1591 officially named NSI as
the Internet Registry ("IR"). That RFC also contemplated that it was
"extremely unlikely" that any new gTLDs would be created, and in any
event set forth the standard that "applications for new top-level
domains (for example country code domains) [were to be] handled by the
IR [NSI] with consultation with the IANA." See Exhibit H, ~ 2 and 3
(emphasis added). NSF understood that the LANA would authorize
substantive changes to the DNS only where those changes had consensus
support within the Internet community.
39. The Cooperative Agreement, read in conjunction with applicable RFC
1591, provides that NSI will serve as the Internet Registry. That is
an administrative support role, which consists of maintaining
accurate, up-to-date lists of the categories of registrants. The list
must be available to all Internet users on a central, authoritative
basis, i.e., there must be only one source of this ~nformation that
can be consulted.
40. The level of registration services provided by NSI has grown
exponentially since the start of the Cooperative Agreement. In 1993,
the DNS database for the five gTLDs registered by NSI contained only
several thousand total entries. In 1998, thousands of names are being
registered per day, the great majority under the ".com" TLD. (The one
millionth name was registered by NSI in 1997, the two millionth name
was registered in 1998, and it is possib1e that the three millionth
name will also be registered in 1998). At present, almost 2.4 million
names are registered under ".com", while less than 400,000 are
registered under ".org", ".net", ".edu" and ".gov" combined.
UNITED STATES' ROLE IN ADMINISTRATION OF THE ROOT SERVERS
41. Ofthe thirteen root servers worldwide, ten are located in the
United States. Two of these (root servers "A" & "r') are maintained by
NSI in Herndon, Virginia pursuant to the Coopcrative Agreement.
42. Three root servers are either owned or directly funded by the
United States Government. One ("E') is at the National Aeronautics and
Space Administration Ames Research Center in Moffett Field, Califomia.
One ("G") is at the Department of Defense Network Information Center,
which is located at the Boeing Corporation facility in Tysons Corner,
Vienna, Virginia and is filnded by the Defense Information Systems
Agency to register ".mil" names. Another ("H") is at the United States
Army's Aberdeen Proving Ground in Maryland.
43. Three more root servers are at universities‹"B" and "L" at the
Information Sciences Institute at the University of Southern
California and "D" at the University of Maryland's Computer Science
Center‹that receive significant federal funding.
44. The remaining two U.S.-based root servers ("C" at Performance
Systems Intffnational, Inc., in Herndon, Virginia, and "F' at the
Internet So~ware Corporation in Palo Alto, California) are at private
firms that, so far as I am aware, are not Government contractors.
NSF's DIRECTIVE TO NSI REGARDING PGMEDIA's REQUEST FOR NEW gTLDs
45. Under the Cooperative Agreement and RFC 1591, NSI had no
unilateral authority to register new gTLDs. NSI instead was required
to consult with the LANA regarding any applications for new TLDs.
PGMedia's request for the addition of hundreds of new gTLDs was
initially forwarded by NSI to the IANA. Subsequently, I was infommed
that by letter dated April 4, 1997, the IANA disavowed any authority
to make a decision in response to the request. NSI then referred the
question to NSF, which viewed IANA's disavowal as inconsistent with
RFC 1591's requirement that applications for new TLDs be disposed
of"with consultation with the IANA."
46. In the meantime, an interagency working group had been studying
domain name problems since March of 1997. On July 1, 1997, President
Clinton directed the establishrnent of an interagency task force to
develop recommendations for privatizing, increasing competition in,
and promoting intemational participation in the DNS. ~ 63 FR 8826. NSF
raised the question of the PGMedia request in discussions with the
interagency DNS working group.
47. NSF then directed NSI not to add any new gTLDs, for the following
reasons. Frst, the process by which the Government sought to transfer
administration of the DNS to the private sector, and to address
various issues regarding domain name administration, had just
commenced. NSF believed that granting the PGMedia request to add new
gTLDs could render that process moot, because as a practical matter it
would be very difficult to undo the addition ofthe new gTLDs once new
names were registered under them. The difficulty here would not be
technical inability to delete names from the database, but the problem
of dealing with businesses or members of the public who would have
registered in the new gTLDs with the expectation that they were
obtaining a durable Internet address, and the confusion
engendcred for users if those gTLDs were to be removed from service.
Granting the PGMedia request could thus preempt further decisions by
the Government on the issue whether to add any gTLDs and if so, the
principles that should govern such decisions.
48. Second, NSF also believed that the granting of PGMedia's request
for hundreds of additional gTLDs would set a precedent that might
introduce risks of instability into the system, both in terms of
potential confusion to users and overload of the queries to the top
level of the transmission and routing infrastructure. As an initial
matter, NSF believed that were PGMedia's request granted, any other
like request would have to be granted as well, thus posing the
prospect of vast numbers of new gTLDs.
49. The hierarchical, distributed DNS had replaced a"flat" naming
system by establishing multiple levels and a limited number of TLDs,
because, in part, the hierarchical system provides some limits on the
amount of inquiries that the servers at the top level would be
required to handle. In the Internet system, unlike the telephone
system, both routing/switching and content are handled on the same
&cilities. The inquiries regarding where messages are to be sent
presently constitute a significant amount of the Intemet traffic. A
hierarchical system allows messages to be sent at the lowest level,
with the least amount of queries to the top level, depending on the
configuration below the Top Level Domain and the messaging pattems. By
contrast, the original ARPANET naming system was "flat," i.e. all
names were retained in one file that was downloaded to all host
computers. The present hierarchical system was implemented due to the
strain imposed on the Internet by having the prior, flat system handle
the vastly increased (and continually increasing) Intemet traffic.
50. Thus, the expansion of the number of TLDs is constrained by
operational concerns having to do with Intemet performance beyond the
technical question of expansion of the root zone file. The DNS, as an
hierarchical naming system, pemmits hierarchically
focused name searches in order to minimize the query time for the ~
number involved in each Internet message transaction. In the worst
case, with a completely flat name space at the top level and no lower
level structure, such focused name searching becomes impossible. This
would be equivalent to having a single telephone book for the entire
world. While such a book is "technically" feasible, it offers little
by way of ease of use or efficiency. To use a different analogy, that
of traffic at a busy intersection, there is no debate that a relatively
small number of cars can be added without significantly impeding the
flow of traffic. Equally, there should be no debate that the
simultaneous addition of "unlimited" cars - like unlimited TLDs - poses
a substantial risk of gridlock.
EXPLANATION OF COUNTRY CODE TLDS
51. Generic TLDs were the only TLDs in use in the original Internet.
At this time the Internet was contained entirely within the U.S.
52. As foreign institutions were authorized and began to use the
Internet, they initially used some of these gTLDs. However,
subsequently, as country code TLDs were implemcnted, they became the
usual TLDs of choice for entities residing within the respective
countries that they denoted.
53. The fact that during the early Internet a small number of non-U.S.
organizations rcgistcred under the gTLDs causes some confusion.
However, these foreign organizations all registcred bcfore the country
code TLDs became the norrn. Accordingly, gTLDs (except for".mir and
".gov") wcre identified in RFC 1591 as being both "generic" and
54. It is important to recognize that, in 1994, within the Internet
community (still predominantly a U.S.-based cooperative and coherent
tcchnically-oriented group) the "generic" TLDs were largely considered
a U.S. anachronism that the Internet would soon outgrow. When RFC 1591
established the procedures for thc atdition of TLDs, it was written
with specific reference to ISO 3166 country codes, because the
assumption within the Internet cornmunity was that ~1) all &ture TLDs
would be based on ISO 3166 country codes, and ~li) that the U.S. would
eventually "rationalize" its naming conventions to conforrn to that
used by the rest of the world.
55. NSI's responsibilities under the Cooperative Agreement did not
initially include registration of gTLD's. See NSI proposal, § I.2.2 at
I-3, Exhibit E (noting that NSI will "provide registration services to
include the ROOT domain, top-level country domains, and second-level
domains under .us, .edu, .com, .gov, .org, and .net"). The role of NSI
in possible registration of new TLDs was addressed in RFC 1591. Under
that RFC, NSI looked to IANA for (and IANA provided) guidance
regarding the addition of country code TLDs. PGMedia's request,
however, was different in that it requested the addition of hundreds
of new ~. Accordingly, when the NSF issued its 1997 directive to NSI
not to add any new TLDs, the directive was mutually understood to be
limited to the addition of gTLDs, not country code TLDs, given that
IANA continued to participate in the process of adding new country
PGMEDlA's TLDs DO NOT MAKE "SEARCING THE INTERNET' EASIER"
56. In paragraph 10 of his declaration, Paul Garrin claims that
PGMedia's proposal for greatly expanded TLDs "would rationalize the
organization of the vast quantity of information available on the
Internet." In particular, he asserts by way of example that
individuals interested in purchasing a camera could "immediately go to
the '.cameras' directory rather than [sic] searching through the
nearly two million entries in '.com."' To the extent plaintiff claims
that such a search would be more efficient or effective than current
searches, this claim is &ctually incorrect for a number of reasons.
57. Searches, in which the user is looking for information but does
not know the domain name or numerie address of the location(s) at
whieh the infommation may be found, are different from IP number
queries, discussed above, in whieh the user sending a message knows
the domain name of the addressee. Searches on the Intemet are
primarily conducted through use of so~ware known as "search engines."
Many Intemet registrants that want to provide infommation or
transactional opportunities to users participate in a communieations
overlay on the Intemet ealled the World Wide Web, or "the Web." Search
engines do not eonduet their searehes by domain name. Rather, they
seareh what is ealled "metadata," whieh are expressions contained
within individual websites that list the categories of infommation
loeated at that site. Metadata‹whieh are viewable only by the seareh
engine, not by an individual visiting the website - permit seareh
engines to evaluate the content of each site and determine which sites
are most likely to contain the infommation sought by the user.
58. To the extent plaintiffimplies that searching two million entries
under ".com" is signifieantly more time eonsuming than a search under
a more limited TLD such as ".eamera", that implieation is ineorreet.
Searehing two million - or even twenty million - reeords is a tnvial
number given the speed with whieh search engines view the metadata
contained within individual websites. For example, a search using
"Yahoo!" (a common search engine) for the terms "eamera" and
"purchase" - the example cited by plaintiff- would take on average
about one to three seconds to search through all websites contained
under all the existing TLDs (both generic and country eode).2
59. Even putting aside the fact that plaintiff's proposed system would
not appreeiably alter the time involved in searehing on the Intemet,
and assuming that searehes were
2 The example cited assumes the searcher is utilizing common
up-to-date hudware such as a Pentium Processor and a 56,000,000 baud
high speed modem. Less up-to-date hardwarc could result in slower
search times. However, under any scheme of searching, search times
would fluctuate depending on the hardware utilized by the searchcr.
conducted within individual TLDs (as opposed to across all TLDs), the
system would in fact make searching more difficult by increasing the
number of different directories that must be searched. To again take
plaintiff's example, an individual searching the current Internet for
a camera to purchase can enter certain key words (such as "camera" and
"purchase," or "buy," or "sell") in a search engine that then examines
all websites within all TLDs. Under plaintiff's proposed system, a
user would have to choose which of a number of potentially rdevant
TLDs to search. While a camera store might be registered under
".camera", it might also - using just the list of proposed TLDs
attached as Exhibit C to plaintiff's Second Amended Complaint - be
registered under ".art", ".artists", ".arts", ".cam", ".corp",
".electric", "electronique", ".enterprises", ".entertainment",
".factory", ".film", ".firm", ".general", "graphics", ".image",
".inc", ".Itd", ".mall", ".market", ".movie", ".multimedia", ".photo",
".pictures", "products", ".sale", ".shop", or ".video". For that
matter, the store probably would also continue to be registered under
".com". Thus, a user seeking to conduct a thorough search by
individual TLDs would have to undertake nearly thirty separate
searches. By the same token, a camera seller might feel obliged to
register under each of those many TLDs in order to maximize the
potential for being located by prospective users.
60. In this way, plaintiff's system fundamentally differs from a
closed system such as Westlaw. In Westlaw, one can, for example, search
for all Second Circuit cases by limiting the search to the "CTA2"
directory, with no concern that the search might not include all
potentially relevant cases. This system works because the contents of
the directories are controlled by a central authority (Westlaw), such
that all Second Circuit cases, and no cases from outside the Second
Circuit, are contained within the directory. By contrast, plaintiff's
proposed system contains no such limitations. Accordingly, one caMot
search within a particular TLD (such as ".camera") with any assurance
at all that the websites listed thereunder constitute all, or even a
significant part, of the potentially relevant sites.
61. To overcome this problem, plaintiff's system would have to be
altered in one of two fundamental ways. First, searches could be
conducted not under the individual TLDs but under all TLDs (to
analogize again to Westlaw, searches would be conducted in a directory
including all federal cases rather than a more specific directory like
"CTA2"). Such a global search, of course, would be no different from
what occurs today on the Internet. Second, there could be a central
authority that imposes some standard conventions governing which T.LDs
can be utilized by what types of entities (for example, requiring all
camera sellers to register under ".camera"). Even assuming that such a
central authority existed, that the authority could possibly create a
classification system competent to organize the entire Internet, and
that the Intemet community would accept such an authority, that system
would be inconsistent with plaintiff's proclaimed desire to open up
the DNS to unlimited TLDs.
62. Another problem with plaintiff's proposed system is that it
lessens the ability of an Internet user to guess the domain name of a
known entity. To use plaintiff's example again, suppose that a user
were seeking information about a particular camera store. In the
present system, the user knows that one likely domain name would be
the store name followed by ".com". Under plaintiff's system of
unlimited TLDs, a user seeking to guess a domain name would have to
make a large number of guesses in order to cover all the potentially
relevant TLDs. Similarly, there are many entities that engage in a
large range of commercial activity. Thus, to find infommation in the
current system on, for example, Sears, one would guess at "sears.com";
under plaintiff's system, the user would have to guess at "sears"
followed by one of a range TLDS that possibly correspond to the
businesses engaged in by the store (e.g., "jewelry, ".shoes',
I declare under penalty of pejury that the foregoing is true and correct.
Dated: July 2, 1998
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