MediaFilter on Wed, 22 Jul 1998 08:19:32 +0200 (MET DST)

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<nettime> No Immunity for NSI

             pgMedia/Name.Space v. NSI/NSF
             Oral arguments on
             Motion for Summary Judgement
             July 20, 1998
             US Federal Court, Southern District NY,




The hearing went well for Name.Space.  Legal Counsel for
pgMedia/Name.Space, Glenn Manishin and Gary Cohen were prepared and
focused on the legal arguments of the case, which were: 

     Does National Science Foundation (US Government)
     have ultimate authority over the root of the internet?

     Does the contract between NSF and NSI grant NSI immunity from
     antitrust by virtue of the "Federal Instrumentalities Doctrine"?

     Are Domain Names Free Speech?

The Defendants attempted to portray a complex web of contractual
conditions between them as basis for determining, that as a government
contractor, NSI enjoys the same immunity from antitrust laws as the
Government.  When Judge Patterson asked US Attorney Steve Haber to cite
the section of the contract empowering NSF over NSI in matters of
determining the contents of the Domain Name System, Haber fumbled through
his documents and finally admitted, "it doesn't". 

The Judge is now fully aware of the shell game the "acronyms" are playing
with on the authority issue...IANA<->NSI<->NSF<->IANA<->DoD
<--->IFWP-->>>proposed but non-existant "new nonprofit corporation" (see
links to letters, below) A scenario right out of "Dallas in Wonderland"
(as in NSI's attorney Bill Dallas) and equally as fantastic. 

NSI's attempt to extend upon themselves the "federal instrumentalities"
antitrust immunity in their role as government contractor was less than
convincing, and as clearly demonstrated by Name.Space Attorney Glenn
Manishin to be not the case and not the stated in
pgMedia/Name.Space's brief in opposition to NSI/NSF answers to the Motion
for Summary Judgement:

Glenn Manishin explained to the Court how domain names at all levels are
free expression in the political sense, with possibilties like
"rudy-for.mayor" or "", to commercial speech as in
"" to parody as in "microsoft.bites".  "Domain Names are the
'headlines of the internet', the key to the content they represent
wherever it may be on the internet."  Haber argued that "there's plenty of
room for free expression at any other level of the namespace just as long
as (sic)they use .com .org or .net..." that's good enough according to
Haber who added that the toplevel domains are "meaningless, contentless
and therefore not imposed or restricted speech". 

In the end, Glenn Manishin produced a fax of a letter from George Strawn
(NSF Director) to Jim Fleming, (one of the new gTLD pioneers and former
Bell Labs engineer) stating that the NSF does NOT control the root
servers!  Just prior, US Attorney Steve Haber (NSF) spent 40 minutes
stumbling over his vague explainations why the NSF DOES have authority,
his face was noticeably reddened.  Evidently US Attorney Haber failed to
speak to his client or was unaware of his client's past
correspondences...or was it just another convenient omission of fact?  NSI
attorneys Phil Sbarbaro and Bill Dallas didn't look too pleased....they
sense a serious treble damages antitrust claim by pgMedia/Name.Space on
the horizon should they lose on their claim of antitrust immunity! 

An opinion is expected in the next few weeks...
Monday July 20 was not a good day for NSI and NSF.

Time to sell your Network Solutions stock.

online material (unlinked) is at:

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