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Username: Whistleblower
Date/Time: Thu, October 19, 2000 at 4:37 AM GMT
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Subject: IOD Exposed #4 (what the court had to say)

Message: 		 

 
Re: Tired of Waiting

To: "Roeland M.J. Meyer" rmeyer@mhsc.com
Subject: Re: Tired of Waiting
From: "Perry E. Metzger" perry@piermont.com
Date: Tue, 14 Jul 1998 13:43:46 -0400
cc: Dave Crocker dcrocker@brandenburg.com, discussion-draft@giaw.org, ietf@ietf.org, comments@iana.org, List@giaw.org, "Open RSC List" domain-policy@open-rsc.org
In-reply-to: Your message of "Tue, 14 Jul 1998 08:04:34 PDT." 199807141504.IAA09039@condor.mhsc.com
Reply-To: perry@piermont.com

"Roeland M.J. Meyer" writes:
> Dave,
>
> Sometimes I feel you need to be drop-kicked. Chris was there, you were not,

Actually, Dave and I were there. Both Dave and I were on the IAHC. You
were not.  We were sued by Ambler. You were not. When I say "we", I
mean the members of the IAHC personally, including me. Luckily,
although the courts can sometimes be fooled a bit, it is hard to pull
off something completely absurd.

By the way, in addition to being ignorant, you're rude. Telling people
that they need to be "drop-kicked" has no place in civilized
discourse. Not, of course, that any of this is civilized. It stopped
being civilized long ago.

> and I told the story as Chris Ambler told it repeatedly in OPEN-RSC.

I'm sure that is the story Chris told. Chris tells many stories. Here
is what the judge said after Chris sued us.

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.


     
 
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