Re: Thread 2: 60-day issue

[Carl Oppedahl <carl@oppedahl.com>]

At 06:04 PM 12/25/96 +0000, Jeff Williams wrote:

>> >>One problem with it is that then the domain name registration authority
>> >>may
>> >>do something stupid, as NSI did, enacting a policy that puts innocent
>> >>domain name owners at risk of losing their domain names years after
>> >>registration, despite their not infringing any trademarks.

>> >The 60-days are not intent to hinder the NSI for making stupid things.
>> >In fact, the NSI does not have to comply with the IAHC rules until it's
>> >contract ends. And once this has happened it is up to the
>> >domain-name-regime to set out rules that adequately protect innocent
>> >domain name owners.

>> >As far as I understand, the NSI did enact it's current policy in order
>> >to protect itself from liability suit's from powerful trademark owners
>> >it might not have the money to cope with.
 
>> NSI is a division of SAIC, a company with cadres of lawyers and $2 billion
>> in annual revenues.  It had enough money to send three lawyers to the
>> deposition of the president of Roadrunner Computers in the Roadrunner case.
>>  NSI's policy is not justified on these grounds.  You are correct, though,
>> that NSI has offered this as a supposed justification for its policy.

>  Carl, I have studied the Roadrunner case myself very carefully. 
>Though,
>you are the expert in this area of law( and I bow to that expertese), I
>have to say that Roadrunner in some ways set themselves up.  

Oh really?  Can you explain what you mean?  Roadrunner Computer Systems was
minding its own business, not harming anybody, and then a letter arrived in
the mail from NSI.  The letter stated that NSI had determined that RCS
deserved to lose its domain name because a challenger had presented a
trademark registration.  The letter stated that NSI would be cutting off
the domain name in 30 days.  This was in December of 1995.

Roadrunner did not sue NSI until March of 1996, many months later.  During
the intervening months, Roadrunner tried to explain to NSI that Roadrunner
was not an infringer -- that the trademark presented was for stuffed toys,
and that Roadrunner, as an internet service provider, had no dealings in
stuffed toys.  Roadrunner tried to explain to NSI that it (Roadrunner
Computer) had been named after the State Bird of Mexico, thus joining
dozens if not hundreds of other companies in New Mexico that were named
after their state bird.

The only reason Roadrunner did not get destroyed was the good graces of the
challenger, who kept writing to NSI asking it to postpone the response date
to the 30-day letter.  I recall one of those dates quite vividly.  NSI,
having received one of the postponement requests, wrote back saying that
the new deadline (and date for cutoff of the doamin name) was (as I recall)
March 6.  The letter stated that NSI's personnel looked forward to hearing
back by that date.  So the challenger wrote again to NSI, in a fax that NSI
received on March 5 (if I recall the date correctly), asking NSI to
postpone the response date by another 30 days.

Now, since NSI was planning to cut off my client's domain name (and cut off
my client's hundreds of email customers, and probably destroy the company)
on March 6, and since NSI had explicitly set March 6 as the date on which
it would be "looking forward" to hearing from the parties, you would think
NSI would arrange to have someone by the phone or by the fax machine.  If
you were an executioner with plans to execute a prisoner that you knew
might be innocent, you would keep someone by the telephone in case the
governor were to call with a pardon, for example.  But no, NSI didn't have
anyone by the phone.  The designated person kept not being in, and we kept
getting voice mail.  All other NSI people refused to help and kept
transferring our calls to his voice mail.  

Finally, in our first-ever interaction with SAIC, we managed to reach one
of the many members of the SAIC legal staff.  Amazingly, what we heard from
him was that no one at NSI could be found who could determine whether the
computer instruction to cut off our client's business had been deleted or
was still in the queue for execution.

I sat with my client (well, we were two thousand miles apart, actually)
doing "digs" to test the NSI DNS, all through the night.  By 6:00 AM the
next day, we concluded that probably the instruction had in fact been
deleted from the queue.  Roadrunner had not, after all, been destroyed by
NSI.  

Oh, and later that day a fax came in, back-dated to the previous day, in
which NSI for the first time acknowledged that the response date would be
extended again, from March 6 to some later date.

Even after all this, Roadrunner kept trying to ask NSI nicely to consider
whether possibly it might be mistaken -- whether possibly our client might
not be an infringer.  But it was to no avail.  None of this did any good.
NSI stood stubbornly by its precious Policy, and refused to consider that
the many hundreds of email customers of Roadrunner would lose their email
service if NSI carried out its threat.  NSI refused to consider that many
of those customers would leave if presented with a forced change of domain
name.  Roadrunner decided, after three months of asking nicely and asking
nicely again and asking nicely yet again, that NSI was determined to cut
off the domain name.  Only after three months of asking nicely did
Roadrunner sue NSI.

NSI spent six figures of lawyer money fighting Roadrunner tooth and nail,
generating thick legal briefs on every possible topic, each of which forced
Roadrunner to incur legal expenses in response.

Still, Roadrunner won -- it got to keep its domain name, the first domain
name owner ever to do so after having received a dreaded 30-day letter.
And since then, six other domain name owners, represented by six other law
firms, have similarly won, getting to keep their domain name in the face of
an NSI 30-day letter.

What is it that you say Roadrunner should have done, so as to keep from
"setting themselves up"?  I am really very interested to hear from you on
this, having personally lived through the near destruction of my client at
NSI's hands.

>We have had
>some dealings with NSI, and it really depends on how you handle NSI and
>the SAIC, leagely.  But that is another matter.  

Well, so you say Roadrunner set itself up.  You suggest that if Roadrunner
had handled NSI and SAIC differently, then ... well, you don't say what.  I
guess you are saying that if Roadrunner had handled NSI and SAIC
differently, then it would not have had to sue NSI ... that NSI would have
simply reversed its determination and rescinded its plans to cut off the
domain name?

Let's suppose you are right, that the sole cause of Roadrunner's suffering
was Roadrunner having somehow mishandled its actions after receiving NSI's
terrible 30-day letter.  Then how do you explain the CLUE.COM lawsuit
against NSI?  The TY.COM lawsuit against NSI?  The DCI.COM lawsuit against
NSI?  The DISC.COM lawsuit against NSI?  The REGIS.COM lawsuit against NSI?
 The JUNO.COM lawsuit against NSI?  In each of these cases, I guess your
view is that the domain name owner "set itself up" after having received
NSI's 30-day letter announcing that their domain name would be cut off.
Yes, I would be most interested to hear you elaborate on what all seven of
those domain name owners did that meant they had "set themselves up".

>I don't really see how
>anyof this is pertanant to what we are really discussing here.  And that
>is my main point.  I reapect greatly your opinion but have not seen
>the jist of this comment.  Maybe I am missreading it?

Let me try again to explain this.  You said:

>> >As far as I understand, the NSI did enact it's current policy in order
>> >to protect itself from liability suit's from powerful trademark owners
>> >it might not have the money to cope with.

It appeared to me that you had fallen for NSI's party line that it is small
and meek and cannot possibly stand up to a powerful trademark owner.  That
poor little NSI doesn't have enough money to fight.  In response, I said:
 
>> NSI is a division of SAIC, a company with cadres of lawyers and $2 billion
>> in annual revenues.  It had enough money to send three lawyers to the
>> deposition of the president of Roadrunner Computers in the Roadrunner case.
>>  NSI's policy is not justified on these grounds.  You are correct, though,
>> that NSI has offered this as a supposed justification for its policy.

NSI has plenty of money and plenty of lawyers, that's my point.  It is a
mistake to believe NSI's party line that it is small and cannot cope with a
lawsuit.  Thus, that particular supposed justification for NSI's policy,
that of course it should side with trademark owners in all disputes because
they have lots of money and NSI doesn't, is a cruel fiction.