From: "Perry E. Metzger" Sender: owner-newdom@ar.com Reply-To: "Perry E. Metzger" XList-Name: newdom Status: RO Content-Length: 6996 Lines: 125 Chris Ambler writes: > This changes in no way the fact that Image Online Design, Inc. > continues to run the .WEB registry, and we do claim first/prior > use thereof. [...] >Failing that, we will continue to operate, persue and defend our rights, I didn't want to do this, but I feel like I have to. I present, without comment, part of a transcript of the TRO hearing -- most specifically, the judge's remarks. I leave it to the reader to decide why Image Online Design decided to drop their case. ---------------------------------------------------------------------- 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. ----------------------------------------------------------------------