Verio Strikes Back!
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In a legal battle bound to go deeper into the issues of defining spamming, Verio Inc. Wednesday said it has appealed a Dec. 8 U.S. District Court decision which prohibited the Web-hosting firm from using Register.com's WHOIS database for marketing purposes.
The appeal was filed Dec. 22 with the U.S. Court of Appeals for the Second Circuit in New York, the next step up from the U.S. District Court for the Southern District of New York that sided with the registrar a month ago when it agreed that Verio had been repeatedly spamming customers listed in Register.com's database.
In a situation where it could concede defeat after what may be viewed as a favorable decision for Register.com, Verio has decided to fight the ruling tooth and nail, both with the higher court appeal, and in another arena -- it has gone on the offensive by asking that Register.com's accreditation agreement with the Internet Corporation for Assigned Names and Numbers be terminated for a few breaches.
In a company statement issued Wednesday, Verio reaffirmed its stance that it believes the court's Dec. 8 ruling "threatens the fundamental intent of public access to the WHOIS databases of domain name registrars."
Verio further maintains that it has not unlawfully used the WHOIS database, despite being accused of actions which Register.com said amounted to spamming customers 12 to 15 times a week at their homes and places of employment as part of a tactic called "Project Henhouse."
Verio also said it has made repeated attempts to get alternative ICANN-required bulk access to Register.com's WHOIS database, and Register.com has refused to respond to each such request.
After quieting down for a couple of weeks, the fire rekindled as Verio petitioned ICANN on Dec. 21 to ask that the non-profit organization's accreditation agreement with Register.com be terminated, citing breaches of certain rules.
These laws basically call for Register.com to implement a distributed capability that provides query-based WHOIS search functionality across all registrars. Register.com has actively refused to do so, but for what the registrar believes are qualified reasons.
According to the section II.F.5 rules, the registrar is justified in denying Verio access: The rules call for such access to be granted in all cases except for those parties who wish to use the WHOIS database to conduct massive spamming campaigns, which is what Verio was accused of last August, and subsequently enjoined from, last month.
Not so fast, says Michael Jacobs, partner at Morrison & Foerster LLP, the legal firm representing Verio in this case. Jacobs, who is optimistic that the injunction ruling will be overturned, said much broader issues are at stake.
Jacobs said that when Register.com first posted its terms of service, it was in full compliance with the ICANN marketing agreement concerning its WHOIS database. Then, Jacobs claimed, the registrar abruptly changed its terms of service, prohibiting any marketing uses of WHOIS data in order to cut ahead of chief rival Network Solutions Inc.
"What Register.com is doing is running away from what was once a level playing field as fast as it can," Jacobs told InternetNews.com Wednesday.
Jacobs noted that Register.com's chief misstep was in changing its terms of service without ICANN authorization.
"The issue is, 'Can a Web site protect data simply by posting a term of service that you can't use this information?'," Jacobs said. "It's like reading a telephone book only to have it tell you can't call someone unless we let you."
Jacobs further argued that had Register.com included an opt-out flag for users, Verio would