Re: NetSol power grab begins in earnest

On 07/08/97, Carol Ruth Shepherd <arborlaw[_at_]aol.com> wrote:
>
> On 7/8/97, Jamie Love <love[_at_]cptech.org> forwarded the following from
> another list:
> > >
> > > [NSI] believes that it
> > > ^^^^^^^^ ^^^^ ^^
> > > has ownership rights in this database
> > ^^^ ^^^^^^^^^ ^^^^^^ ^^ ^^^^ ^^^^^^^^
>
> 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.

Sorry, but it appears to me that NSI fails on this first, initial inquiry of the straightforward copyright analysis. NSI did not create the Whois or root server databases. The creators are the domain name owners. For example, let's look at the entry in that database for *your email address*.

It is:

America Online (AOL-DOM)

   12100 Sunrise Valley Drive
   Reston, Virginia 22091
   USA    Domain Name: AOL.COM

   Administrative Contact:

      O'Donnell, David B  (DBO3)  PMDAtropos[_at_]AOL.COM
      703/453-4255 (FAX) 703/453-4102
   Technical Contact, Zone Contact:
      America Online  (AOL-NOC)  trouble[_at_]AOL.NET
      703-453-5862
   Billing Contact:
      Barrett, Joe  (JB4302)  BarrettJG[_at_]AOL.COM
      703-453-4160 (FAX) 703-453-4001

   Record last updated on 13-Mar-97.
   Record created on 22-Jun-95.
   Database last updated on 8-Jul-97 04:25:14 EDT.

   Domain servers in listed order:

   DNS-01.AOL.COM		152.163.199.42
   DNS-02.AOL.COM		152.163.199.56
   DNS-AOL.ANS.NET		198.83.210.28

Virtually everything in this record was authored by someone at America Online. The only things that were not authored by America Online are the legends such as "record created on". Those legends are purely functional and in any event, a successor to NSI could run COM without having to copy the legends.

Oh, well, there are the "handles" such as "DBO3". That handle simply means that Mr. O'Donnell is the third person with the initials DBO to be entered into the "person" part of the database. Did NSI author that? No, Mr. O'Donnell's parents authored that. DBO3 is at best a derivative work based on a work of authorship of Mr. O'Donnell's parents. JB4302 means that Joe Barrett was the 4302nd person with the initials JB to be entered into the database. Not much originality on NSI's part there, once again the author seems to be someone's parents. NSI hasn't been around long enough to have played a part in Mr. Barrett's naming.

It is a straightforward matter to repeat the process for each record of the database, and in each case there is virtually nothing authored by NSI, only stuff authored by the various domain name owners.

> 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.

The domain name owner's IP address appears nowhere in the NSI-administered database. The IP addresses that appear are the IP addresses of the domain name servers that are promised to provide the domain name owner's IP address.

But more importantly, how is the information in a Whois record distinguishable from telephone book information? Maybe you could explain your "nowhere near the same" distinction a bit more.

> 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.

In what way does NSI decide what can and can't be in the Whois database? Are you saying NSI could, at a moment's notice, delete the America Online entry from its database? Is that what makes NSI's case more like the DJ case?

(Amazingly, NSI tried to do exactly that to Juno Online, which would have cut off half a million people from their email. See <http://www.patents.com/juno/juno.sht>. Fortunately for those half a million people, Juno Online sued NSI and then NSI backed down and agreed not to delete the juno.com entry from the database.)

Carl Oppedahl
<carl[_at_]oppedahl.com> Received on Wed Jul 09 1997 - 10:50:38 GMT