Name.Space Files Apellate Brief in NSI Antitrust Immunity Case
press release from 06-23-99
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.
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.
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.
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.
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.
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."
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.