As the Department of Justice steps up its ongoing investigation of the
business practices of Network Solutions, legal experts say the firm may
find case law working against it.
Reportedly prompting the government’s renewed investigation is NSI’s recent treatment of its database of Internet addresses as proprietary information.
NSI said the WHOIS database is a customer database, and it shouldn’t have to sell or give access to others.
But Carl Oppedahl, an intellectual property attorney in Frisco, Colo.,
said the government will likely be viewing NSI’s actions in light of a
Supreme Court case known as the Feist decision. In it, the High Court noted
that U.S. copyright laws only protect original expression. It ruled a firm that had copied the contents of a telephone white pages directory
was not guilty of copyright infringement.
The parallel to the WHOIS database is quite clear, Oppedahl said, since none of its contents were authored by NSI.
“There is nothing in those files in which NSI could claim a copyright
interest. They aren’t trade secrets, because the contents have been and are available to the general public. Even if NSI could point to some
far-fetched legal theory under which it claims some sort of rights in the files, NSI seems to forget that to get the job, it signed a contract with the U.S. government agreeing that if the US government asked, NSI would hand
over any and all files for use by a successor to NSI.”
Oppedahl also believes the work NSI did on the files was essentially
paid for by U.S. taxpayers and by the domain name owners in the form of
The government investigation of NSI began almost two years ago and was not
widely known. But word got out Wednesday that Justice has asked for new
documents and additional information about possible anti-trust issues.
NSI currently allows the public to access the whois database one entry at a
time, but competitors want the firm to open it back up to bulk access, so
they have equal opportunity to use whois as a marketing and promotion database.
NSI maintains its business practices are in full compliance with the law.