Subject: Confirming the Nominet position

From: "Jay Daley" <[email-masked]>
Date: Wed, 26 May 2004 16:24:03 +0100

Here is a proper explanation of the Nominet position.

1.  Showstopper
Zone file enumeration is a show-stopper for us that will prevent us from 
fully implementing DNSSEC. So if DNSSEC stays in its current form then we 
will have to make a local determination about how/what we implement, which 
is still to be decided.  Our reason for this is our view of what is the 
appropriate policy to act in the best interests of our local community, 
which for some time has been to deny access to our zone files. 

2.  Late new comers
The criticism levelled about "late new comers" is well founded and I'm 
sorry that is the case.  This is something we should have raised some time 
ago.  Recognising that we were late with this we did try to avoid just 
unproductive foot stamping by the development of the NSEC2 draft as a 
positive alternative.  We are now committed to the process and we will be 
here to stay.  As evidence of this I should make clear that our next steps 
will be to get NSEC2 patches written for BIND and if possible NSD to allow 
proper interoperability testing.

3.  Way ahead
Ideally we would like NSEC2 to go forward properly, but I understand very 
well that this causes significant problems for many in this WG.  So we 
would be quite happy with a mechanism that allowed NSEC2 to be introduced 
later in a backwards compatible fashion, such as the previously suggested 
version field for NSEC.

3. Legal mumbo jumbo
I'm sorry if we appear to have been hiding behind legal mumbo jumbo, this 
was not our intention.  So I need to be clear that our legal advice is 
ancillary to our view in (1) above, not the determining factor. 

However, for those of you that have asked, this is the gist of our legal 
advice...

As compilations, zone file databases are protected under EU law by 
?Database Right?. As a derivative work of the main register from which 
they are sourced, they are likely also to attract copyright protection in 
addition to or in place of database right.

Both database right and copyright are negative rights in that they 
prohibit certain acts (primarily, copying the whole or a substantial part 
of the materials) but do not grant positive rights (unlike, for example, a 
patent, which grants a monopoly on the material involved). Database right 
is unique to countries which implement European Community law, but 
copyright is more universal. 

If legal rights would be infringed with copying, then is it not better to 
allow the copying, and then rely on the law to assist against any 
infringers?  The short answer is ?no?, and here the analogy of locking 
one?s house or car despite laws against burglary and theft may be helpful. 
 Prevention is not always better than cure, if one is led to make an 
overly restrictive solution in order to prevent a minor risk.  However, if 
the risk of harm is major, and is highly likely to take place, and will be 
expensive and difficult to put right after the event, then in those 
circumstances, prevention is very definitely better than cure.

The problem with both copyright and database right arises with 
enforcement, particularly in respect of electronic data such as a zone 
file.  Firstly it can be hard to identify whether a data mining event has 
taken place, in the context of the high volume of traffic affecting the 
nameservers on a day to day basis. If a technical department cannot show 
this, there is nothing that a legal department can do. Even if it is clear 
that it is happening, the technical department may not be able to trace 
who has done it, because the use of multiple proxies can make it 
impossible (or prohibitively expensive) to find it. Even if this can be 
done, the person(s) involved may be abroad. If they are in a difficult 
jurisdiction (even including eastern Europe, which is part of the EU) the 
differences in language and legal systems add to the expense and 
complexity of pursuing legal proceedings. 

Jay Daley
Director of IT
Nomient UK

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