Re: NetSol power grab begins in earnest

From: <ArborLaw[_at_]aol.com>
Date: Tue, 8 Jul 1997 18:31:10 -0400 (EDT)

On 7/8/97, Jamie Love <love[_at_]cptech.org> forwarded the following from another list:
>
> Date: Mon, 7 Jul 1997 11:47:22 -0400
> From: Steve Peterson <stevep[_at_]visi.com>
>
> Not sure whether anyone has seen this yet, but in Network Solutions' S-1
> registration (at
> ftp://www.sec.gov/edgar/data/1030341/0000950133-97-002418.txt ) they
> assert ownership of the domain name database. To quote:
>
> > The Company has compiled a database of information relating to
> > customers in its registration business. While a portion of this
> > database is available to the public, the Company believes that it
> ^^^^^^^^ ^^^^ ^^
> > has ownership rights in this database and is seeking to protect such
> ^^^ ^^^^^^^^^ ^^^^^^ ^^ ^^^^ ^^^^^^^^
> > rights. If it were determined that the Company does not have ownership
> > rights in this database or if the Company is unable to protect such
> > rights in this database or is required to share the database with its
> > potential competitors, any such development would have a material
> > adverse effect on the Company's business, financial condition and
> > results of operations.
>
> It's a scary thing if they make this stick. Sounds like West Publishing
> all over again. And the recent message from David Holtzman implies that
> they believe they can control who gets copies of the zone files and who
> doesn't. Who knows where this will lead?
>
> What would prevent IANA from requesting today that the complete database
> be published on the web?

Hm, let's do the straightforward copyright analysis. Did NSI create the database? If they are the compiler of data, and the database is not too derivative of other works (.com is far and away the biggest and they currently control that, so I would think that any blocks of data coming from other registries would be too de minimis to present an obstacle here), then they are presumptively an owner of a copyrightable work, because a database is copyrightable subject matter.

Are they the federal government and therefore not able to create copyrightable works? No, they are an independent contractor under grant by an agency of the federal government. Do independent contractors of the federal government retain their copyrights? Generally yes (general rule is that data created by a third party under a research grant given by a government agency are still owned by the third party), although in cases of outright acquisitions of IP, the government tries to take all rights. The Federal Acquisitions Regulations, for example, provide for transfer of proprietary rights unless the contractor explicity reserves them and puts the disclaimer on each piece of software or whatever. (In such cases, the federal government does end up owning copyrights, but by virtue of transfer rather than as an author under the definition in the US act.) I don't know whether any such regulations apply here, via NSF or otherwise-- anyone else know? So it looks to me like there is a colorable claim of copyright under US law (utter lack of desirability of such outcome for policy reasons notwithstanding).

Obviously the Feist case may come into play here against any bar by NSI to competing use--although I would argue that a domain name claimant's contact info, domain name and IP number is nowhere near the same as a name, address, telephone number in a phone book. To me, this looks more like the Dow Jones case--the DJ index is a list of numbers which are factual, but Dow Jones decides what can and can't be in the index. But there are competing indices, aren't there? Shall we revisit the Lasercomb case and misuse of copyright, anyone?

Which is why it the Justice Department is probably getting around to looking into this amazing license to print money.

Carol Shepherd
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==--====-==-=-=-==--=--====--=-=-=-====---===-=-=-====---===---= Received on Tue Jul 08 1997 - 22:34:33 GMT