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
not have targeted the registrar’s users in the first
place.
Jacobs said that despite Register.com’s changing its terms of service rules
and violating its accreditation agreement with ICANN, Verio ceased e-mail
communication with the registrar’s customers before the August 3 lawsuit so
as to avoid a legal dispute, but that Register.com pressed on regardless for
what Morrison & Foerster claims is a play to cut out competition.
But Register.com spokesperson Shonna Keogan categorically denied Jacobs’ last claim, saying that her firm has evidence that Verio continued e-mail marketing campaigns during litigation.
A day after telling InternetNews.com that the appeal and petition were acts
of “sour grapes on the part of Verio,” Keogan maintained her firm’s position when asked about the appeal.
“We believe this is an attempt to save face after they lost the preliminary
injunction,” Keogan said. “One thing I can add is that we will be in close
communication with ICANN and if they have issues with our business
practices, we will certainly respond to them to ensure that we remain in
good standing.”
As of Wednesday, Register.com has not formally responded to an ICANN
advisory requesting that the registrar defend itself against Verio’s
claims that it violated an accreditation agreement with ICANN.
