Re: NetSol power grab begins in earnest

On 07/10/97, Carol Shepherd <arborlaw[_at_]aol.com> wrote:
>
> I've combined two of Carl's responses here to try to avoid multiple
> threads. In a message dated 7/9/97 8:04:25 PM, Carl Oppedahl skewered
> large parts of my post (always a pleasure!) on NSI's database copyright
> claim:
>
> [snip]
>
> How is NSI any different from Experian?
> Experian didn't author my mother's maiden name and my social security
> number, but it can certainly compile a protectable database of factual
> information about me.

Certainly? Under Feist? I am not so sure.

> > 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.
>
> A salient fact I did not know. Let's pick one database and stick with
> it, just for clarity: I propose we talk about the DND, and not the WHOIS
> (or are they the same?). I was assuming the DND was a simple one-to-one
> correspondence type lookup table of "XXXX.COM" = IP number, but if I
> understand Carl correctly, is actually the "IP number" of the server that
> holds the IP number that corresponds to the name. Any experts?

Neither the root level server file nor the Whois file contains the IP number to which a domain name is translated. In each case, the file merely contains the IP number of a domain name server (operated by someone other than NSI) that will, upon request, map the domain name to an IP number. A good reference on this subject is "DNS and Bind" from O'Reilly (http://www.ora.com/).

One way to appreciate this is that a domain name may map to one IP number for purposes of sending mail and to a different IP number for other purposes such as web or FTP access. The content of the root-level-server file doesn't answer either of these questions (mail versus non-mail). Instead, that file merely sends you to a domain name server that will receive a query and return whichever of the IP numbers you want (which is a function of whether you are getting ready to send email or getting ready to view a page on a web site).

> > 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.
>
> OK, "nowhere near the same" was too strong. Name and address fields,
> exactly similar. Now, this is really netpicking, but: phone numbers
> are by and large assigned by the phone company, not requested by the
> telephone customer, unlike a domain name (800 numbers are different
> fish). We could talk about the phone company "authoring" each sequence
> of numbers, but as I said above it's not relevant. Does the phone
> company author the whole set of information, as a compilation? I'm
> talking about the compilation of the information, not the individual
> fields and their values.
>
> If the DND only contains domain names and IP numbers, in two fields, and
> it is "the set of all such things, in alpha"--then this is looking to me
> a lot more like a Feist case. If it contains all the WHOIS-type
> information fields and values, and if there are addresses out there that
> could be included, that aren't recognized by some servers but are by
> others (isn't this the .WEB controversy?), then the DND is a subset,
> involves editorial choice by NSI, and that moves it down the continuum
> away from being a pure Feist case.

We're going to have to do better than a string of "if"s here. I am unaware of anything that would budge NSI's position away from the Feist end of the continuum. I am unaware of any creativity exercised by NSI in compiling the database. I am unaware of any discretion exercised by NSI in compiling the database.

A company that is compiling, say, a list of phone numbers in the 212 area code isn't exercising discretion when it excludes telephone numbers that are in non-212 area codes. In the Feist case the phone company was compiling numbers in some town in Kansas. Did the Supreme Court given them "protectable expression" points for excluding Michigan phone numbers from that directory? I think not.

> > 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?
>
> NSI exercises the discretion to deny registration to some domain
> names that are not already taken, from what I understand. Remember
> "ADULTSRUS.COM"? This looks a lot like editorial control over
> inclusion in a compilation to me.

Copyright never protects functional things. NSI's decision not to register, say, ADULTSRUS.COM is a decision about function, namely that such a domain name will not physically function on the Internet. Then, as an echo of that functional decision, it happens that ADULTSRUS.COM doesn't turn up in the computer file.

Carl Oppedahl
<carl[_at_]oppedahl.com> Received on Fri Jul 11 1997 - 14:00:39 GMT