Subject: Re: Tired of Waiting

From: "Christopher Ambler" <[email-masked]>
Date: Thu, 16 Jul 1998 10:25:52 -0700

>Well, IOD didn't try to get the contract up for grabs. I don't know when
the
>contract goes "up for grabs" again, but at that time, IOD could easily try
>to get the contract. Of course, they'd have to understand that they don't
>*own* ".web" and could be outbidded next time around.

This makes the assumption that the CORE "contract" was the right way
to go. Not only is that untrue, but it would have also required IOD to
renounce any claim to .WEB, which was plainly not possible. You're
making it sound like IOD has to get the "contract" to be a registry.
It doesn't.

>If that's all that has to be done by the registrar, then why is Chris
>gouging (sp?) people for $35? Why is he getting a markup profit of $25 over
>his $10 cost for doing NOTHING? Anyone will tell you that a level of profit
>like that is something that will get looked at very closely if there's a
>monopoly situation (as Chris would like).

You're making assumptions about pricing that aren't true. I have no
problem with strict examination of pricing, when the time comes. Knowing
quite a bit about how Emergent and CORE's system is put together,
and the pricing involved (from many members of CORE as well as a
couple POC members), I'm more than eager to see them put under
the same scrutiny.

But again, you're making the assumption that CORE is the only
registry, and that by not playing along, there is something inherently
bad going on. That's just not the case.

--
Christopher Ambler, Personal Opinion Only
--
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---

From: "Perry E. Metzger" <[email-masked]>
Date: Thu, 16 Jul 1998 14:30:15 -0400

"Christopher Ambler" writes:
> renounce any claim to .WEB, which was plainly not possible.

A court already pretty much eliminated your claim to .WEB for you,
like it or not, or have you forgotten that little detail? I know it is
mighty convenient for you to continue pretending in public that you
had a legitimate claim to .WEB to begin with, but I believe the matter
has been fully settled at this point.  The judge practically laughed
you out of court.  At that point, to avoid pay our court costs, you
asked the Judge's permission to drop the case.  Were you to chose to
try reopening the case, you'd almost certainly be denied the motion.

No one has to believe me on this. I'm including, YET AGAIN, the
transcript of what the Judge said, officially, in an actual court of
law, on this subject. See the end of this message for said transcript.

I'm utterly astonished by your continuing public claims in the
matter. Have you not the least bit of shame?

Perry

Transcript follows:
----------------------------------------------------------------------

                    THE COURT:  Anything further?  All right.  I'm prepared
to rule.
          One, I find that the Plaintiff, Image Online, has not
met its burden of proof to establish a reasonable likelihood of
prevailing on the merits of Image Online's claims at the time of
trial.  Those claims are really -- there are three different
claims or categories of claims.  One is the breach of contract
theory.
          There's insufficient evidence presented to support that
there was an enforceable agreement that was entered into between
Plaintiff and the Defendants.
          What's most interesting about the breach of con-

tract/estoppel claim is that the claim made is that there was a
contract entered into, or that the Defendant should be estopped
from denying that a contract was entered into with an entity that
the Plaintiff claims has no authority to act.  And in drawing that
conclusion, I don't mean to oversimplify and sound cute about the
inconsistency, but there's a real internal inconsistency in the
breach of contract position and again, the failure to establish
the elements of a contract.
          The second category of claims really has to do with the
unfair competition.  There we have the claim of Image Online that
they have a proprietary and protectable interest in dot web.
          I find the evidence insufficient to support either
factually, or as a matter of law, that the Plaintiff has estab-

lished that it has protectable proprietary interest in the term --
or the word -- term "dot web," considering the nature of the
interweb and the usage of the term, vis a vis, the interweb -- the
Internet.
          The third category has to do with the anti-competition,
the anti-trust theories.  Here, I find that the evidence provided
by the Defendants supports the Defendant's claim that the proposed
memorandum of understanding -- I don't know if it's a fait accom-

pli at this point.  I realize the meaning is taking place now, or
may be concluded, but at least for my purposes is a proposed
memorandum of understanding.  As I understand the memorandum of
understanding, the memorandum is promotive of competition.  And I
would categorize it as pro competition.  It's purpose is certainly
-- does not appear to be to stifle competition.  And even assuming
that the elements of the combination have been established, at
least for the purposes of the temporary restraining order applica-

tion, any appropriate application of the anti-trust rule of reason
considering, as applied to the Internet, suggests to me that
there's certainly justification for the combination acting as it
is.  And in particular, it's very difficult for me to ignore the
evidence before me that those that are involved, at least these
Defendants, have no proprietary or profit motive in their under-

takings, whereas the Plaintiff has.
          Furthermore, I find that the evidence is just not suffi-

cient to support the claim of the Plaintiff, that either any of
these Defendants, whether it be the IANA or the Ad Hoc Committee,
or the Internet Society are acting in an anti-competitive manner.
          There again, the anomaly we have here is that if the
Plaintiff had its way, it would be willing to enter into an agree-

ment with a combination that it believes is acting to restrain
trade.
          I further find that if the Plaintiff does have legal
rights against any of these Defendants, that their remedy, if any,
is -- can be compensated in monetary damages.
          There's also been a failure on the Plaintiff to estab-

lish irreparable harm justifying the imposition of injunctive
relief.  Even assuming if I'm -- that my analysis is incorrect
that the Plaintiff does not have an adequate legal remedy, that's
to say monetary damages, what I have done is -- what I'm obligated
to do, and that is to weigh the equities and consider the harm to
the Plaintiff if injunctive relief is not granted versus the harm
to the Defendants, and each and all of them, if injunctive relief
is granted.  And when I refer to Defendants, "and each and all of
them," I'm referring, even though the Internet itself -- I don't
know how you could make the Internet itself a Defendant, but I --
what I've considered in terms of the damage to the Defendants, by
extension, is the damage to the Internet system.  And I've weighed
the respective harms if I don't grant injunctive relief as the
Plaintiff requested, and the harm if I do.
          And the disruption to the Internet -- to the -- and the
potential destabilization and disruption to the Internet so far
outweighs the potential harm that there is harm to the Plaintiff,
that frankly, I don't even think it's a close call when I weigh
the equities and find the equities favor not granting injunctive
relief.
          And I must tell you, notwithstanding, Mr. Walter, your
argument in connection with the extent of the interstate commerce
clause and the ability of the Cartwright Act, to act as a long arm
of California law and extend overseas, I do have, as I understand,
the -- and it's not that I came upon this myself, it's clearly in
one of the briefs, the reference to the -- to what appears to be
congressional policy, although not the force of law, but that
congress prefers that the Internet not be fettered with the --
with governmental regulation, either by the federal government or
the state government.
          I do have a great deal of concern about a California
trial court involving itself when considered with all the other --
the global implications, the fact that -- of the Internet, the
fact that there is no, per se, regulatory body, I concern myself
when I gave consideration to the matter of potential disruption of
the Internet and destabilization of the Internet to the question
of whether or not there ought to be enforcement of a state law in
this case, 17200 of the Business and Professions Code or, for that
matter, the Cartwright Act, to the activities of the Internet.  It
certainly caused me to hesitate as to the appropriateness, in view
of what appears to be clear cut congressional policy.
          So, for all of those reasons, the temporary restraining
order is denied.  And for the reasons that I've indicated earlier,
I don't feel it's appropriate to set this matter for an order to
show cause re preliminary injunction.  That should take care of
it. 
----------------------------------------------------------------------