DOJ vs NSI

reptyle writes "The washington Post has an article in today's paper about a DOJ probe of Netwrok Solutions on antitrust concerns. "

I already get junkmail because of the domain I reg

[Anonymous Coward]

There are companies out there already who slam the 'whois' database to construct near complete copies of NSI's database and then sell it to marketers, retailers, etc.

So the outcome of this case either way changes things... how?

Multiple Domain Registrants

[Anonymous Coward]

What I think could be a problem is how do you avoid multiple people registering the same domain name from different people.

Re:Intellectual Property

[Anonymous Coward]

(Background: I have worked for NASA contractors for about ten years)

The way work is done at NASA is that there are separate pots of money. If something is purchased with corporate money ("overhead" or "capital equipment"), it is corporate property and is not subject to the usual Government regulations on procurement, standards, etc.

But if something is purchased using Government money, or software is developed using a budget provided with the contract work order, it belongs to the taxpayers.

So it looks to me that NSI has no leg to stand on.

Re:Intellectual Property

[Analog]

It's hard to say from the quotes in the article what NSI's actual position is (do they claim to own the database or the data itself?), but the way this usually works is the way you've described your situation. IOW, NSI can possibly own the database of domain information, but the data itself is public domain.

I think this is analogous to online phone directories. Courts have ruled that you can create an online database, then fill it with information from someone else's database without infringing on their intellectual property. However, you cannot simply put their database up.

If NSI claims that they own the database, they may or may not have a case. I suppose it depends on whether the gov't decides that since it helped NSI create it, it should be public (and whether the courts in the ensuing lawsuit agree). If NSI claims they own the data in the database, I think they're probably going to lose that argument.

Re:Intellectual Property

[Analog]

NSI's position is that owns the database containing the registrants.

Then they at least have a case. As you've noted, there is plenty of precedent for the government paying for a database's creation then letting the company that did it have ownership of it.

Honestly, if the extent of their ownership claim is the database itself, I'm not sure their is much the government can do about it. As much as I may dislike NSI's approach, I think they're probably on fairly solid ground here.

Phone Book eh?

[gavinhall]

Posted by Hungry Joe:

Sure, it's public property... but I don't think I want to be listed... where do I apply? I especially don't want every company who pays a small fee to get my home address phone number aswell as my email... they can do it by looking me up, but I don't want it to be easier than it already is.

Re:Intellectual Property

[Frater 219]

The whois data *is* intellectual property. Specifically, it is the property of the registrants. My employer owns the information regarding its registration; this is why we are allowed to edit or destroy it.

If NSI owned our whois entry, then they could sue us if we changed our contact addresses to false or nonexistent ones, because we would thereby be damaging their property. However, since the entry is in fact ours, we are allowed to.

Furthermore, if NSI owned that information, then we would have to agree to surrender our registry information to their ownership. Obviously we didn't do that.

That's not a customer list; it's a database of other people's information. It was so before NSI maintained it, and it will remain so after they no longer maintain it.

Not nothing... a break.

[cirby]

The reason "nothing" has been happening in the Microsoft case is that the judge had to take a break to work on another case. The Microsoft case is going to be starting back up real soon now, and it's looking worse and worse for Microsoft (more evidence in the Caldera case, which will almost certainly affect the Microsoft case, along with other stuff). The discussion about Microsoft isn't whether they're going to lose, but how much is going to happen to them when they do lose...

Re:Microsoft, Intel, Network Solutions, AOL...

[Nemesys]

Monopolies are not against the law; as you state, NSI has a government-created monopoly. It is abuse of monopoly power which is against the law, just as it should be.

If market forces can no longer act properly, because there is a monopoly, then the economy suffers. It is only right (if you believe free markets are a good thing, a view I suspect is held by the vast majority of /.ers) that there should be some power to redress the balance.

More importantly, this power should not rest with the government, but with the courts, which is the solution the United States has found. Anti-trust law should not be about addressing unjust enrichment, but about protecting the market.

Modern markets are much more complex that those which existed two centuries ago. If I buy an apple from one vendor, I can still buy bananas and food processors from whomsoever I chose. If I purchase a computer, however, I am often causing what should be my choices of an OS, an OE, a Word processing paradigm, etc, to be made for me. It need not and should not be this way.

Good for the DOJ. NSI ihas become unethical

[KlomDark]

Kewl, I just wrote this letter to the DOJ a couple night ago:

------------------------------------
I am concerned about the way Network Solutions is doing business and how it will affect the nature of the Internet. They have been operating under an exclusive contract with the US government for the past seven years.

www.internic.net has been a central site for Internet registration information for that time and has come to be regarded as the central point on the Internet for locating domain registration information.

Now that the government has expanded the registration services to allow other companies to also provide registration services, Network Solutions has effectively perverted the Internic services by changing the web page for Internic to redirect to the Network Solutions web page. While this was not against any ruling involved in de-monopolizing domain registration services, it is certainly against the spirit of it!

Internic has always been a shared resource of the entire Internet, and now Network Solutions has unethically claimed control of it.

Whatever the Federal Trade Commission can do, I hope you can do something.

Thank you.

Re:Intellectual Property

[craw]

NSI's position is that owns the database containing the registrants. They further claim that their contract with NSF granted them rights to any IP created by their registration business. Contrary to what some ppl believe, just because the gov paid for something, doesn't mean that they automatically own it. For instance, if the gov contracts out for services to be rendered, it may waive rights to *how* the services are rendered.

As for the phonebook directory analogy, NSI's position is that entries in their "phonebook" are publically available. However, they'll dish it out one entry (WhoIs) at a time. Hence, the central issue is whether others should be granted bulk access to the entries in NSI's database.

Re:Doesn't this mean something?

[scottj]

Personally, I disagree. This is not the sort of thing that the US government should do. The internet doesn't end at the US borders. The internet is global. I believe that the world would be best served by allowing any organization to perform these services.
--

Microsoft, Intel, Network Solutions, AOL...

[Signal 11]

The DOJ is starting to worry me. First they target microsoft (don't get me wrong - I think they needed to too), then Intel (well, maybe..), now Network Solutions.

I'm starting to suspect the government is stepping on it's own toes here. It creates a monopoly power in the domain area, and then launches probes when it becomes a monopoly. Well.. Duh. Whacha expect?

Not that these cases don't have merit - most of them do.. but the technology sector should be able to solve the problem on it's *own*. Let IANA and company boot Network Solutions -> They'll do a faster, and more efficient job of dispatching any would-be domain monopoly faster than the DOJ can. And as a bonus - IANA will take feedback from the community. Thus far, the DOJ has shown little inclination to listen to *our* suggestions for dealing with Microsoft.



--

Re:Anti-trust comes in groups.

[Signal 11]

This, as far as I can tell, is the second big wave of anti-trust action by the government. The first was when industrialization happened faster than the government could act. The result? An oil monopoly. A steel monopoly. A meat monopoly. Etc. When growth goes that fast, some lucky people will end up with monopolies. This is not fair.

I'd like to add that NSI's monopoly may well dissolve without any government intervention. Here again, the IANA is working diligently to create a competitive market here. NSI will be unable to maintain a monopoly. They will be forced to become competitive.

I'm concerned that this sets a dangerous precident - anti-trust law was meant to be used as a weapon of LAST resort. The market should be left alone, unless the problem is incurable -and- causing problems to the consumer.

It is simply foolhardy for Janet Reno and company to waste more of MY taxpayer money on something that may well be over before their case gets off the ground.

--

Doesn't this mean something?

[eebly]

Maybe I'm missing it, but why was NSI given this plumb deal in the first place? Domain registration seems like exactly the sort of thing Government SHOULD do. It's part of the infrastructure, like the roads (private roads have had a terrible history in this country). The advantage would be that we wouldn't have all this squabbling over the distribution of names (I've been getting junk-mail through my registration, BTW), and this bullshit attempt to keep the database private. Granted, government-run has other problems, but it might be a better option than the mire we're in now. (And why does ICANA get to make these decision? Who the hell ARE they!?)
---------

Re:Intellectual Property

[sammy baby]

So, it appears to me that the public who is NSI's collective customer 'owns' the information in WHOIS. Do they have a legitimate legal claim of intellectual property?

Arguably, yes. Let's say I run a market research firm, and I publish a report on the buying habits of consumers between the ages of 15 and 30. All of the consumers whose statistics are used to form the report own their own spending behavior, but they don't own the content of the report.

To bring the case closer to home: if I'm Time magazine, no company can simply compel me to turn over my list of subscriber information. It's a valuable commodity, and I can sell it to (and for however much) I choose/can get away with.

NSI could easily argue that "the public" isn't really their customer at all: it's the domain name registrants. Since all the people in the WHOIS database are their clients, they're likely to argue that they shouldn't be compelled to turn over the nature of the business relationship to anyone who wants to know. In any other context, it'd be entirely reasonable, but the public nature of the Internet has turned this issue sticky.

Re:Intellectual Property

[igjeff]

To take this a bit farther...maybe to an extreme...but extremes seem to be good thought experiments to figure out concepts.

What if a new registration database started up (to my knowledge, ICANN/IANA and crew are *not* setting up a seperate database, just ensuring that other companies can register in to the already existing database), and my company put the same information in this new database? If NSI is claiming that they own the information in their database, can they then sue my company for putting our contact information (identical to what's in NSI's whois) in another database? Theoretically, if they own that data, then they could conceivably sue over that.

Like I said...perhaps its extreme...but perhaps not...if there's anything I've learned in my dealings with NSI, is don't assume anything is extreme with them.

Jeff

Let the U.N. then

[Hermelin]

It is the perfect way for them to make money. Then they won't go around leeching off countries as much. Let them register the domain names and get some money from it. And then we have the only relatively independent group having a monopoly.

Maybe they could keep stuff private. I filter most of it into my trash, but it still is hard.

Re:Intellectual Property

[Royster]

Now that I think about it, the data probably dosn't qualify as a trade secret either since it is made available through whois lookups. Companies must normally protect their trade secrets from disclosure if they want IP protection for them.

Re:Intellectual Property

[Royster]

It is IP in the sense that Trade Secrets are IP. It is not IP in the sense of copyrightable information. There was a Supreme Court case that held that the information in an ordinary phone book is not copyrightable.

I wonder if it matters in the long run. Whois queries will eventually drain the database of this information. What is troublesome is that there won't be a universal Whois database anymore. We may have to query several whois servers to find the information unless there is some cooperation between the registrants.

Anti-trust comes in groups.

[Fizgig]

This, as far as I can tell, is the second big wave of anti-trust action by the government. The first was when industrialization happened faster than the government could act. The result? An oil monopoly. A steel monopoly. A meat monopoly. Etc. When growth goes that fast, some lucky people will end up with monopolies. This is not fair.

Here we see again growth far too rapid for government regulation to prevent monopolies from forming. Again, we see the monopolies have formed (NSI with the help of the government, no less!) Anti-trust laws help the government because it can't have perfect foresight. Free market ecomonies work pretty well usually. But when monopolies come into the picture, someone has to clean it up.

I guess the other ripple of anti-trust stuff would be the breakup of CAB (airline deregulation) and AT&T, but that was much smaller.

that's not all it's good for

[Artifex]

The directory needs to be used by competitors for administrative purposes relating to domain maintenance...

I work for an extremely large service provider (no guesses please) that recently got approval to be one of the new registrars. Right now, when our clients register domains with Internic, we have to wait a week or so for it to be approved. When clients change providers and ask for repointing of host nameservers, Internic drags again. Imagine what will happen when we have full access to that database directly. We will certainly get things done faster; if nothing else, the process would be more streamlined. Not only that, but we'll also be able to offer lower charges for registrations...

spam competition

[Amazing Larry]

NSI also contends that broadly releasing the database would create privacy concerns and could lead to an increase in unscrupulous Internet merchants sending out millions of unsolicited e-mail messages.

Doesn't NSI already sell the database information to marketers? If this is the case, does this mean that they're more worried about competition for spammers' money than they are about registrants' privacy? If this isn't the case, then nevermind.

so what?

[Darth Maul]

What does it matter? The DOJ threats have led
to nothing. The whole Micro$oft case? What's
happening there? Nothing. They just like to
make a big deal about "catching" companies, but
then get so caught up in the beauracracy that
nothing ever comes out that actually impacts we
the people.

I'm all for cracking down on M$, Intel, etc, but
at least carry through with some action if you're
going to cry about it. Stupid DOJ...

Oh boy! More spam!

[faster]

How will the new competitors to NSI gain a competitive advantage by using this data? Sounds like they're promising to spam domain contacts.

Just what I need, more trash in my mailbox.

I do agree that the directory is owned by the public (i.e. taxpayers and domain holders), but I think the basis for the challenge ("but we NEED to spam those people to be competitive!") is laughable.

Re:How do I filter out Jon Katz? huh?

[Jburkholder]

1) this isn't a Katz thread
2) register as a user and then you can set your prefs to block out anything on the site

:-D

Intellectual Property

[Jburkholder]

NSI's defense seems to be that the WHOIS data is 'intellectual property'.

>NSI argues that it has an exclusive right to the database because
>the company's original agreement with the National Science
>Foundation specified that it would own any "intellectual
>property" created by the address-registration business. "It's very
>clear that we have the rights to this data,"

I guess my concept of intellectual property is flawed. I always think of it as an idea or invention or some other unique creation. Ok, their process, code, etc for accumulating this data and the way it is stored and communicated seem like obvious intellectual property, but this just seems like this is public information that they want to hold hostage?

My basis for this line of thinking comes from my own experience at work. We run a data processing service bureau, with some in-house applications that our clients use to run their business. Our system is proprietary and we guard our 'intellectual property' jealously. But, the data belongs to the client, who created it. We won't disclose interals of how we collect, store and distribute the data, but we have no ownership of the data and we are obligated to allow the customer access in any way they want (granted, we may charge a fee to deliver it in a way which is not already supported).

So, it appears to me that the public who is NSI's collective customer 'owns' the information in WHOIS. Do they have a legitimate legal claim of intellectual property?

Re:Doesn't this mean something?

[jason_aw]

No, it certainly should *not* be handled by
the US government... it should be kept as
far away from them as possible.

For one thing, remember that America isn't
the whole world. I think occasionaly some
of you need reminding of that :-)

But the more we allow governments in general
to handle internet infrastructure the more they
are going to try to restrict it... and that
would be disastrous.

Of course, nothing will stop them placing
their restrictions, but surely we should
do all we can to keep their hands off our
internet?

You've only got to look at some of the
European guidlines being introduced to
show that we should do our best to keep
politicians as far away as we can
possibly manage.

Re:Intellectual Property

[markos1-1]

The problem I forsee is that if NSI claims to have rights to the DATABASE and not the DATA then they will probably win any case brought against them BECAUSE the NSF guaranteed them the rights.

The US gov't doesn't mind stepping on it's own toes, but I guarantee they hate invalidating their own contracts. It sets a bad precedent for a government, any government.

Having a monopoly isn't illegal, using that monopoly to enter into a new business field, however, is. Don't get me wrong, there should be compition(sp?) in this field but if NSI is only protecting a monopoly the DOJ may not have a case.

Re:Microsoft, Intel, Network Solutions, AOL...

[dbullock]

I'm starting to suspect the government is stepping on it's own toes here. It creates a monopoly power in the domain area, and then launches probes when it becomes a monopoly. Well.. Duh. Whacha expect? It's not that the companies are monopolies. It's that they're monopolies that are abusing their power. Microsoft, Intel, and NSI are all providing poor service to the customer, and using their monopoly power to crush competition. I really do not believe we'd be seeing any action taken on any of these organizations if they were providing quality service on a level playing field.