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Name.Space Files Apellate Brief in NSI Antitrust Immunity Case
press release from 06-23-99
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Attornies for Name.Space, Inc. filed their appeal in the antitrust/free
speech case against Network Solutions, Inc. (NSOL) and the National Science
Foundation (NSF) in the US Distct Court of Appeals for the Second Circuit
on Tuesday, June 22, 1999.
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The appeal seeks to overturn the decision of the Southern District Court
Judge Robert P. Patterson, who on March 16, 1999 ruled that NSOL was immune
from antitrust prosecution as a "Federal Instrumentality", and that domain
names were not protected by the First Amendment because they were simply
the equivalent of telephone numbers, and not expressive speech.
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Name.Space (f/k/a pgMedia, Inc.) filed its antitrust action against NSI in
March 1997 when Network Solutions refused to include new toplevel domains
(TLDs) offered by Name.Space into the ROOT server controlled by NSI, so
that they could function over the entire internet.
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NSOL held a contract with the National Science Foundation to act as the
registry for the .com, .org, .net, .edu, and .gov TLDs until September,
1998 when it was taken over by the Department of Commerce (DoC) National
Telecommunications and Infrastructure Agency (NTIA) in a move that is
presently under Congressional Revue.
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Name.Space seeks the inclusion of over 500 new generic toplevel domains
such as ".art" ."books"
."cars", suggested mainly by users, into the simple text configuration file
called the "ROOT.ZONE" controlled by NSOL, and an "essential facility"
under the antitrust laws. Name.Space believes that new domains offer
consumers and businesses more choice and diversity in the selection of
their internet address, without being limited to "dot com" and other legacy
domains, and allowing for more descriptive and expressive name spaces. The
act of including the new toplevel domains is a simple copy, paste and save
operation, and will cost very little for NSOL to perform, but the
implications in terms of opening up the domain name market to competition
are monumental, and NSI has done all that it can to delay any end to their
lucrative monopoly, which has netted them nearly a quarter-billion dollars
in domain name sales since the suit began.
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Name.Space is confident that the Apellate Court will overturn the lower
court's decision to grant NSOL immunity, especially in light of a recent
decision by the D.C. Court of Appeals in the Thomas v. NSI case, where the
D.C. Circuit emphasized that NSI is not immune under the Federal
Instrumentality Doctrine merely because it acted "pursuant to" the
Cooperative Agreement it held with the NSF. The Court stated that "[a]
contractor may be free to perform the contract in a number of ways, only
one of which is anticompetitive."
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Name.Space, a privately held company, has pioneered new domains and domain
name services since 1996 when it released the first, realtime domain name
registry on the internet, setting up an innovative and competitive model
for the industry. In addition to the access to the root, Name.Space seeks
treble damages from NSOL for the losses it has suffered from NSOL's refusal
to add the new TLDs offered by Name.Space, to the root.
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