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Whois information copyrighted 85

Jonas Öberg writes "It appears as if Network Solutions fairly recently put in a clause at the end of all whois requests, telling you that you're not allowed to reproduce, sell, transfer or modify the information. See whois slashdot.org for an example. " I've seen this before-can anyone tell us when this first started?
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Whois information copyrighted

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  • I didn't notice it yesterday...
  • by phil reed ( 626 ) on Friday May 14, 1999 @10:47AM (#1891869) Homepage
    It's been there for a while. NSI saw the day coming that there would be other registeries and registrars, and tried to claim that the database of domain names and contacts was their "Intellectual Property", and you couldn't use it to start a competing service. Consensus is that it wouldn't hold up.

  • by |DaBuzz| ( 33869 ) on Friday May 14, 1999 @10:49AM (#1891870)
    When I complained to Internic about spam I was receiving due to their database being mined and sold, I was told that there was nothing that could be done because the information was in the public domain.

    Now when their monopoly is threatened, they take ownership of the data and how it's used ... how convenient.
  • by Signal 11 ( 7608 ) on Friday May 14, 1999 @10:50AM (#1891871)
    Slashdot posted an article on internic revamping their website. The notice appeared then. When I signed up for my domain in late january, the changes had not yet occured.

    Interesting observation - can a phone book listing be copyrighted?

  • by sporkboy ( 22212 ) on Friday May 14, 1999 @10:50AM (#1891872) Homepage
    Call me naive, but...

    Hasn't whois been around a lot longer than Network Solutions' monopoly? Like back in the NSF days for instance. I find it hard to believe that such a thing would hold up.
  • Strange to have an agreement that comes after the fact... that's almost as good as having a license agreement under the shrinkwrap.

  • I don't recall agreeing to that. Don't I need to "sign" something to say that I agreed to it, rather than being told that I agree to it?

    Just wondering.....
  • I first noticed it 3 days ago. That's evil... I guess I can't email the technical contact, since I would be reproducing the information in my mail header.
  • Or rather, they shouldn't...

    The trouble is that we have a for profit business controlling something that was set up to be a non-profit organization. The lines have been blurred, especially since Network Solutions hijacked 'www.internic.net'.

    Its about time we open up the whois database and let the world run it's own nameservers, instead of just "Network Solutions"

    NSOL - 68 1/4 down 3 5/16ths ... crash and burn!
  • My whois [crynwr.com] information is in the public domain, and always will be.
  • It started few days ago (2 or 3, I'm not sure).
    They don't exactly assert their copyright (There's no word "copyright" in the disclaimer), they just say that you cannot use it for commercial purposes.

    This is done to prevent abuse of those addresses by spammers, and for NSI to be able to sue spammers for usage of NSI's mailing lists. I think that's a Good Thing(tm) by itself.

    However, that doesn't stop NSI itself from sending spam to registered contacts. They did it on more than a few occasions...Ah well.
  • I'm not a lawyer, but what action did I take to agree to their terms? Clicking on a link from slashdot? After that point, I have no way of rejecting their terms.
    What's really interesting is that they made it a license agreement rather than a simple copyright. Might they feel they are on shaky ground?
  • Don't you own it Rob? Aren't you just giving it to them? They might own the distribution media (ie. Network Sol'ns whois server), but not the info itself (as you've given them the info not the rights to the info, they didn't create it).

  • by lisa ( 19611 )
    Do you think they did this so they can sell the lists? So I can get even more junk mail to the President of grrl.org?

    I don't think its a very cool thing to do, but tons of companies do it every day.


  • by Analog ( 564 ) on Friday May 14, 1999 @11:03AM (#1891882)
    1) The 'agreement' isn't shown until you have the information. I seriously doubt this is legally enforcable.

    2) The information itself is public domain. This means all they can control is access to their database. There is legal precedent that says if I have access to their database, I can suck all the information out of it and put it in my own, then do with my database as I please. The only way this can work for them is if they put the database totally off limits; nice catch-22 they've gotten themselves into, eh? ;)

  • This new "copyright" could actually benifit domain registrants, since I know a lot of the spam I am always recieving comes to the address I use for domain registration. I know this is true because it is the only time I have ever used that E-mail address for anything. What NSOL has essentially done is make it illegal for spammers to harvest e-mail or postal addresses and phone numbers from the whois database. Personally, I think this is the way things should be. Let's just hope that they don't decide to sell the list, and let's hope that they grant permission to reproduce the data for nonprofit use such as Internet statistics/research, etc. I do think that any registrant should have the option of making a domain record public though.

  • no. that's how many of these phone book companies make their money. Repackaging of data like that isn't prohibited.

    The problem comes in when you read the clause in the precident about the data being collected through automatic or mechanical means.

    Have you seen adds in classifieds about writing down phonebook entries and mailing them to someone for money? That's what this is. Someone collecting data manually for re-publishing.
  • Actually, no, phone books cannot be copyrighted. I know of at least two actual U.S. District Court cases in which phone book data was copied and reused -- in both cases, the use was considered "fair use" under U.S. law. Basically it comes down to the idea that you cannot copyright ideas or data -- only the expression of the ideas/data. And a phoen book does not contain enough originality and expression (since the data is always organized in logical but uncopyrightable alphabetical "Last, First" etc. order) to be copyrightable. So if the courts take the view that NSI's database is analagous to a phone listing, they have no case. Big if, though.

    "Perfection is achieved, not when there is nothing left to add, but when there is nothing left to take away. "

  • by doogieh ( 37062 ) on Friday May 14, 1999 @11:17AM (#1891888) Homepage

    In 1991, the Supreme Court decided that the factual content of phone directories are NOT copyrightable. (see Feist Publications [findlaw.com], 499 US 340)

    There is little difference between a phone book entry and a whois entry; they may be able to copyright the FORM of the database, but the INFORMATION is useable by all.

  • Still have the message, with headers ??? I'm sure the lawyers for the new 5 / 20 registrars would LOVE a copy. . .
  • not only that but under opaque shrinkwrap
  • by drwiii ( 434 )
    They started doing the copyright notice thing about a week or so ago, then removed it for all day yesterday, and now the it's back.

    Simple way to avoid it, just figure some way to have your whois client cut the connection after the real information you're looking for comes through. No license, no agreement. Not that it's legally binding in the first place, mind you..

  • My guess is that they did it so they can assert their temporary monopoly, but also so they can say they're doing it in order to prevent people from spamming you.

    Of course they probably won't consider sending email to all domain admin contacts that they authorize as being spam...

  • Like the other guy said do you still have the message?

    If I remember my studies of IP, once something is in the public domain you can not remove it from the public domain. This would give anyone wanting the information a legal leg to stand on. But IANAL.

  • > Interesting observation - can a phone book listing be copyrighted?

    According to Dutch law, it seems that phone book listings are indeed (sort of) copyrighted. KPN (the former state owned telco) has successfully frightened companies that put data online that they will go to court regarding online phone book data.

    A number of companies have tried to copy the data. Some of them claimed that people in China handcopied all entries in the phone book (which is legal). However, KPN put phoney phone numbers in their digital database and could show that the data was digitally copied.

    Strange, a written version is without copyright, a digital is not.

    Has anybody printed out the whois database in the Netherlands? :-)
  • What does this do to a service like Domain Surfer [domainsurfer.com]?
  • Here are some relevant excerpts from Feist v. Rural Tel. [findlaw.com]:

    Article I, 8, cl. 8, of the Constitution mandates originality as a prerequisite for copyright protection. The constitutional requirement necessitates independent creation plus a modicum of creativity. Since facts do not owe their origin to an act of authorship, they are not original, and thus are not copyrightable.

    While Rural has a valid copyright in the directory as a whole because it contains some forward text and some original material in the yellow pages, there is nothing original in Rural's white pages. The raw data are uncopyrightable facts, and the way in which Rural selected, coordinated, and arranged those facts is not original in any way.

    Do read the case; it's very interesting material. ("Rural" is a telephone company; "Feist" is a publisher of wide-area phone books which used data from Rural's white pages in making a wide-area white pages directory including material from ten other phone companies.)
  • I found that very odd also. They just said "You agree bla bla bla" not even "By using this service, you agree..." I don't know if that would hold up. Maybe if they said "you cannot use this information bla bla bla" and used a copyright as the reason, but I can't see them saying that you must do what they say just because you clicked a link.
  • icebox:/var/named/pz# whois CRYNWR-DOM

    Crynwr Software (CRYNWR-DOM)
    521 Pleasant Valley Rd.
    Potsdam, NY 13676-3213

    Domain Name: CRYNWR.COM

    Administrative Contact, Technical Contact, Zone Contact:
    Nelson, Russell N (RNN3) nelson@CRYNWR.COM

    Record last updated on 20-Dec-96.
    Record created on 31-Jan-92.
    Database last updated on 13-May-99 08:35:10 EDT.

    Domain servers in listed order:


    You agree that you will not reproduce, sell, transfer, or
    modify any of the data presented in response to your search request, or
    use of any such data for commercial purpose, without the prior
    express written permission of Network Solutions.
  • Domain Surfer [domainsurfer.com] is in trouble. And heck, so am *I*... my DNS resolver (caching only) has some of this copyrighted info that it "reproduces".. am I going to be sued!!!???
    Don Rude - AKA - RudeDude
  • by Anonymous Coward
    Good news. My Name, Email address, and Phone number are only released under the GPL. By including my GPL licensed data, they have made a GPL licensed work. Now just to find a lawyer willing to litigate on it.

    James Blackwell, innocent@merconline.com, JB26539
  • Network Solutions' monopoly going to be broken up? I could have sworn I heard that the registering of domain names was going to be made public forum...
    Maybe we should get a band of rioters together and storm the NSI headquarters with pitchforks and torches. Or we could try to convince the DOJ to look into it.

  • They tell me "You agree that you will not reproduce, sell, ...".

    Keep dreaming, NSI. I didn't agree to nothin'. Don't tell me I did and expect me to believe you.

    I'll copy and post any whois information anywhere I want.

  • ...reproduced, stored in a retrieval system, sent to a remote system, etc., without my express written permission. Rob, Slashdot, and all you comment readers, magically agree to this just by having read it.

    NSI's notice (see below) is just as silly.

    You agree that you will not reproduce, sell, transfer, or
    modify any of the data presented in response to your search request, or
    use of any such data for commercial purpose, without the prior
    express written permission of Network Solutions.
  • fwd://www.zdnet.com
    fwd: fwd: fwd:!!!
  • There's no such word as "costed."

    Well, according to my Webster's Encyclopedic Unabridged Dictionary of the English Language, the 10th (v.t., to estimate or determine the cost of) and 11th (v.i., to estimate or determine costs, as of manufacturing something) have past forms as "costed". Perhaps if you hung around cost accountants (such as my mom), you would hear such phrases as, "What, the widget production process? I costed that yesterday". I am probably sure that Rob did not mean "costed" in this manner, but it is in fact a word.


  • by ResQMe ( 40474 ) on Friday May 14, 1999 @12:17PM (#1891913)
    I think what NSI is trying to do is to establish ownership over the database, as opposed to the information that's in it. It's widely known that facts can't be copyrighted, but the presentation of those facts might be a different matter. So I suspect that NSI's thinking is that they don't want anybody to be able to systematically poll the database in order to create a copy of it.

    Obviously, if you look up a domain name, you're free to do whatever you want with the results. If you look up ten names, then the same thing probably applies. But if you wrote a script to query all domain names, take the contact info and create your own databse, then that might well fall under copyright protection.

    If that's all accurate, then it's probably for the good. I get spam and junk snail mail that obviously originated from my domain registrations. The fewer people who have replicas of the registration database, the better.

    I'm not sure how much legal history there is on this stuff, unfortunately.
  • hi`

    if I am right, databases are especially protetected by some European law - e.g. a German company selled a phone book on CD and were successfully sued by the German Telecom.
  • First off, IANAL, but my mom is and I used to love reading her legal journals and case law books (and yet I passed up a carrer in law to program computers...yay)

    To answer your question: Technically yes the bill would be paid off, but I wouldn't count on it standing up in court. When a note such as that it placed in a check, is IS legally binding because the party you give the check to has the option to refuse your check and payment. If there is an alternative option, and they cash it anyway, they legally accepted it.

    So should we all try this? No. While your legally in the right, most US courts would find for the mortgage company. Unless you got really lucky most judges would see this for what it is, an attempt to dodge a legitimate bill, and require you to pay it. It's kind of a trivial argument anyway. Write that note on your next mortgage check and I'll bet they just return the check to you uncashed. Heck, they'll most likely nail you with late fees at that point too, since you didn't properly submit your payment.
  • While poorly worded, I think says you may not modify the data OR use it for commercial purposes.
  • There isn't a court of law that would uphold an unsigned contract.

    Of course there is. Verbal contracts are contracts and enforceable (even though it's very difficult to enforce them). Shrinkwrap licenses have been held to be enforcable by a US district court.

    There are other conditions for a valid contract that may or may not be present in this transaction.
  • The legal jargon for offering a check endorsed as a "payment in full" is "accord and satisfaction"; if the payment is offered in full settlement of an unliquidated claim or a bona fide dispute, it will act to discharge the original contract. If you offer your check when there is no bona fide dispute or unliquidated claim (which would be the case if, for example, your mortgage is not in collection or foreclosure), the endorsement has no effect.
  • Shrink wraps are enforceable, despite people who claim otherwise. There are about 80 federal court opinions supporting the enforceability of shrink wrap licenses, and only one adverse to that proposition.

    As far as whether crossing out the language on the renewal works: The offeror of a contract has the right to determine the means of acceptance of the contract; the offeree may not choose to accept in any way other than that offered by the offeror. When you cross out that provision, you are rejecting NSI's offer and making a counteroffer. However, if NSI cashes the check, they've accepted your counteroffer, which suggests that you have successfully exempted yourself from that provision. But don't count on it.

  • Hey,

    for MONTHS already, the whois database is nolonger public. The reason for this is that many people got it and ripped the eMails from it to spam people. Now Internic needs you to sign a contract to get the full database.

    My guess is, the reason they added this small part below the whois results of their db is that their lawyers told them to. They might have to mention it there too if they do not give out the Database.

    - Fabian Thylmann
  • This seems unenforcable to me. How can they make you agree to certain terms for something you view after the damage is done, i.e., I've viewed it? It might be enforcable, if I performed some action indicating concent, but this is just an order from a body that has no authority over me, and where there is no opportunity for me to concent? Why would I listen.

    Also, the part about not reproducing the output is just ridiculous. I cant do 'whois 2ad.com | mail john@2ad.com' or 'whois 2ad.com | lpr' ? That's a joke!

  • This has NOTHING to do with Domain Surfer.

    They must have a contract with NSI to get this information anyway, they do not ripp it ouf of the whois results. And notice the part saying "without the prior express written permission of Network Solutions" ... they HAVE this written permission.

    At least I VERY much hope so.

    - Fabian Thylmann
  • by hawk ( 1151 ) <hawk@eyry.org> on Friday May 14, 1999 @03:20PM (#1891928) Journal
    [I've really got to start doing this with Lynx; I've about had it with netscape's shenanigans. Once I figure out how to make it pop up new windows for links, I have no more use for netscape. But don't have time to read the source code right now. Especially with the time I'm spending retyping.]

    Disclaimer: I am a lawyer, but this is not legal advice. I am probably not licensed in your state or nation. IF you need advice on this, see a lawyer who is. This disclaimer void on odd-numbered moons of Jupiter.

    A contract must always have "offer" and "acceptance." While we frequently think of acceptance as explicit, it isn't. An acceptance may also be made by conduct. If I offer you ten bucks to mow my lawn, you can accept by showing up and beginning. Your favorite store clerk accpets your offer to buy merchandise at the posted price by ringing it up. And the theory behind shrinkwrap licenses has you axccepting by opening the wrapper.

    This doesn't seem to fall into that case. The purported offer comes after the conduct to accept; it certainly doesn't apply to the original transaction.

    I also dougbt that it can apply to later transactions--while the argument can be made based on prior notice from a previous listing, the "offer" and "acceptance" are not on the same putative contract.

    A more interesting contract question comes from the attempt to add such conditions. The whois command has become standard, and is based on the arrangement to provide this information. THere may be an offer & acceptance of the original terms. I'm not sure what the answer is on that one, it will take a lot of thought that I don't have time for at the moment.
  • by WorldMaker ( 38481 ) <me@worldmaker.net> on Friday May 14, 1999 @04:50PM (#1891929) Homepage Journal
    Actually, NSI has hidden the "real" whois, fancy free at http://www.nsiregistry.com [nsiregistry.com] which is basically the old WHOIS we got at http://www.internic.net and NSIregistry does not have that copyright notice. Example: WHOIS Slashdot.Org [nsiregistry.com]
  • Can you distinguish between copyright anda patent?
  • by heretic ( 5829 )

    Weren't there changes in copyright law being promulgated by WIPO that would allow such copyrighting of databases? Perhaps that's what NSI is banking on.

    From what I remember, it would be possible for an organization like Major League Baseball to copyright its database of ballplayer statistics that was developed at its own expense. While major media could probably afford to develop parallel databases, it would probably be easier to use MLB-branded data. We wouldn't have any such choice of developing a parallel whois database.

    IMHO, Dyson and the rest of ICANN screwed up royally by not insisting on a public escrow of this database.

  • Yes, but the restrictions on databases in this sense are based on privacy issues, such as the Datenschutzgesetz in Germany, and are not issues of copyright, per se. For the U.S. phone book listings are considered public domain, and phone books cannot have copyright. How the issue will resolve with the 'net remains to be seen... As for Network Solutions, I personally don't see their copyright of whois info holding up, in that a large portion of the database was created by other companies as well, back when AT&T and other companies "shared" the burden of InterNIC duties...back before NSF contracted it out.
  • by werdna ( 39029 ) on Friday May 14, 1999 @07:41PM (#1891934) Journal
    Doggieh hits it on the nose. Feist pretty much slams the possibility for protecting any databse whose structure and organization is essentially determined by function. This is not true for any database, however -- many databases can be protected (and have been protected) by courts since Feist.

    On the other hand, NSI will have substantial difficulty distinguishing its database from the white pages in Feist, given the essential function and operation of whois.

    BUT BEWARE! The lawyers in Feist have not lost their mind. They may not have an advantage under today's law, but the law may be about to change:

    Legislation to give what we lawyers call sui generis (read "special treatment") protection for databases is presently pending before the Congress as we speak. It was a part of last year's Digital Millenium Copyright Act, but (thank g-d) was pulled at the last minute.

    Even worse, the definition of "collection of information" was so broad in last year's bill, and the elimination of a traditional "fair use" exception, threatened to make this sui generis bill swallow the few saving graces left in Copyright law.

    But like all pieces of special interest legislation -- and the database bill is no different -- It's BAAACK! [loc.gov] While the present legislation is far superior to last year's, in that it does have a fair-use-like exception built in, it is all the more dangerous because of its acceptability therefor. Congress may well pass the bill in this form this term or next, unless folks quickly mobilize against it.

    What's wrong with HR354? Well, the whois database is an excellent example. After the database legislation passes, NSI might well succeed in making its claims stick.
  • I think you missed the point Russ was trying to
    make (or at least the point I think he was trying
    to make).

    Since his copy of his whois record predates the
    restrictive text NSI put in the whois records,
    he doesn't have to abide by the terms of the new
    text. IANAL, but I don't think they can apply it
    retroactively, and that's what I think Russ meant.

  • I was waiting for someone to point this out (only I couldn't connect yesterday to post it). This seems remarkably similar to the stickers placed on new laptops shortly before the Windoze Refund Day. Until they put it on their request page, I have agreed to nothing of the sort. Of course, I can see it and simply generate the request by hand.

    Me thinks this is a sort of Death Thrash of NSI.
  • Shrinkwrap licenses are only enforcable if their existance is specifically pointed out before the store agrees to the purchase of the product.

    The reasoning behind that decision went along the lines that it's usual to expect that if you BUY (not lease or rent) something, you have full and complete control over its usage. By offering some products for normal sale (mice, cables, etc) and some that has other limiting clauses (software) and not distinguishing between the two, the license has no effect.

    I've never had a clerk at a store point this out (why should they? It doesn't benefit them) and I seriously doubt any do. The only recourse of the publisher is to get stores to agree to provide this warning.

    Shrink-wrap licenses are also completely invalid if they aren't 100% visible through the shrink-wrap. Similarly, if you'd have to open the package to understand (ie, it refrences material inside the box, etc) the agreement, then you can open the shrinkwrap without agreeing...

    There are so few cases in which a shrinkwrap license is valid that they're only included for the same reasons all sort of warning are included with products, buying more BMWs for lawyers.

  • by knuth ( 6137 ) on Saturday May 15, 1999 @12:10AM (#1891940) Homepage

    On the web-based interface, NSI has been slapping on their bogus "agreement" since at least 22 March 1999. See this post from news.admin.net-abuse.email [deja.com].

    However, DejaNews^H^H^H^H.com has no postings yet in news.admin.net-abuse.sightings with the NSI bluff, so I suspect that those of us who do whois from a *NIX prompt only started getting served this rider within the past day or two.

    That said, the so-called "agreement" is absolute hogwash.

    • No one agreed to it. Except NSI, of course.
    • Cannot reproduce? So I can't report spam?
    • Cannot modify? That means Rob or any other domain owner cannot ever get a new e-mail account, meatspace address, phone number, or FAX. Get serious.

    IANAL, but I think that as a government monopoly for lo these many years, the whois database should be public domain, just as it is not possible to copyright government documents in the U.S.

  • Actually, copyrighting all their phonebook data
    is exactly what the German Telecom is trying to
    do at the moment. And, if I'm informed correctly,
    they just won against other companies selling
    phonebook CDs.

    Well, *I* never gave them the copyright on
    my phone-no and especially not my address. :-(
  • Well, nobody can force one to keep a tcp connection
    alive until all data has been sent. One cannot
    be sued because the phone connection drops while
    you're downloading a web document.
  • nope, AFAIK databases itself gain a special protection in the EU, (I know the Datenschutzgesetz - e.g. it says that databases must not be exported to a country that has LESS protection for privacy than Germany). Well, all I know is what I read in the German c'T magazine about the specific phone book stuff, but I think that whoever created the 'database' (speaking of InterNIC) is holding the copyright. I'd guess it is quite complex law stuff right here, but I don't want to see a company selling my phone number & address (I owe a domain ;-), so personally I don't mind InterNIC claiming copyright on the data - but I doubt they can sue me for using my personal data ;-)))

    Okay, InterNIC didn't create the database by its own, the German database is created by DE-NIC located in Karlsruhe, but I think that they can legally say that you can't distribute, copy or whatever, the database.

    Hmm, I should read some articles about this stuff more carefully ;-)

    Uh, don't mix US laws on privacy with European laws on privacy - EU laws are quite strict about this topic, like the one mentioned above - so it is not legal to export user information to the US - theoretically :(
  • yabbut, your check won't be the only evidence
    presented to the jury! The original paperwork
    of the mortgage agreements will also be there
    (which is why you'd never even get a trial on this) and the original agreement says there are
    certain terms and conditions... The check with
    it's binding are also weighed with everything else, not in a vacuum. And their evidence is
    a pretty substantial stack of papers (as any of
    you who have ever bought a house will attest),
    and your evidence is a check (on which you may
    have written those words AFTER it was returned
    from the bank!!!)

    I may or may not be a lawyer, for all you know,
    but I have spent as much time in courtrooms as
    most civil litigators.
  • I didn't agree to anything. I never once said "OK" on a form or signed an agreement when I registered woot.net [woot.net]. Therefore, I will hereby reproduce, transfer, AND modify the data presented to me by my whois request.
    scorpio:/home/hosehead$ whois idirect.com

    TUCOWS Interactive Limited (IDIRECT-DOM)
    5150 Dundas Street West #306
    Etobicoke ON, M9A 1C3

    Domain Name: IDIRECT.COM
    Administrative Contact, Technical Contact, Zone Contact:
    Administrator, DNS (LH90) dnsadmin@IDIRECT.COM
    416-233-7150 (FAX) 416-233-6970

    Record last updated on 29-Oct-98.
    Record created on 21-Nov-94.
    Database last updated on 15-May-99 11:44:58 EDT.

    Domain servers in listed order:


    You agree that you will not reproduce, sell, transfer, or modify any of the data presented in response to your search request, or use of any such data for commercial purpose, without the prior express written permission of Network Solutions.
    (Modified to work with HTML)
  • My whois record predates *NSI*, much less any copyright they may claim over it.

%DCL-MEM-BAD, bad memory VMS-F-PDGERS, pudding between the ears