Re: Ambler pretends to own .WEB again.

["Roeland M.J. Meyer" <rmeyer at mhsc.com>]

At 05:52 PM 7/16/98 -0400, Perry E. Metzger wrote:
>
>"Christopher Ambler" writes:
>> >A court already pretty much eliminated your claim to .WEB for you,
>> >like it or not, or have you forgotten that little detail? I know it is
>> >mighty convenient for you to continue pretending in public that you
>> >had a legitimate claim to .WEB to begin with, but I believe the matter
>> >has been fully settled at this point.  The judge practically laughed
>> >you out of court.  At that point, to avoid pay our court costs, you
>> >asked the Judge's permission to drop the case.  Were you to chose to
>> >try reopening the case, you'd almost certainly be denied the motion.
>> 
>> Not only are you wrong on a number of points, but, I have to, once again,
>> repeat my mantra to you: The Case Was Not About That.
>
>Oh, yes? Well, that isn't what your complaint to the court said, and
>it isn't what the judge seems to think your claims were. He
>specifically addressed this, in fact:
>
>"[....]There we have the claim of Image Online that
>they have a proprietary and protectable interest in dot web.
>          I find the evidence insufficient to support either
>factually, or as a matter of law, that the Plaintiff has established
>that it has protectable proprietary interest in the term --
>or the word -- term `dot web,'[...]"
>
>You seem to believe that by claiming repeatedly that something didn't
>happen that other people will start believing you.

>Lets get this clear, once more. You sued. You lost. You keep claiming, 
>counterfactually, that you did not lose. You weasel in every direction 
>you can.

He only sought injunctive reilef....

Aiya, you're to ignorant to waste any more time on <pah!>


>You have no legal right to .WEB. You sued to get it. You did not get
>it.
>
>You are like the knight at the bridge in Monty Python's "Holy Grail",
>who, after having had both arms and legs cut off, insists that he has
>not lost the fight.
>
>For those who've missed it, I, once again, provide what the judge
>said.
>
>Perry
>
>[Transcript follows.]
>----------------------------------------------------------------------
>                    THE COURT:  Anything further?  All right.  I'm prepared
>to rule.
>          One, I find that the Plaintiff, Image Online, has not
>met its burden of proof to establish a reasonable likelihood of
>prevailing on the merits of Image Online's claims at the time of
>trial.  Those claims are really -- there are three different
>claims or categories of claims.  One is the breach of contract
>theory.
>          There's insufficient evidence presented to support that
>there was an enforceable agreement that was entered into between
>Plaintiff and the Defendants.
>          What's most interesting about the breach of con-
>
>tract/estoppel claim is that the claim made is that there was a
>contract entered into, or that the Defendant should be estopped
>from denying that a contract was entered into with an entity that
>the Plaintiff claims has no authority to act.  And in drawing that
>conclusion, I don't mean to oversimplify and sound cute about the
>inconsistency, but there's a real internal inconsistency in the
>breach of contract position and again, the failure to establish

>the elements of a contract.
>          The second category of claims really has to do with the
>unfair competition.  There we have the claim of Image Online that
>they have a proprietary and protectable interest in dot web.
>          I find the evidence insufficient to support either
>factually, or as a matter of law, that the Plaintiff has estab-
>
>lished that it has protectable proprietary interest in the term --
>or the word -- term "dot web," considering the nature of the
>interweb and the usage of the term, vis a vis, the interweb -- the
>Internet.
>          The third category has to do with the anti-competition,
>the anti-trust theories.  Here, I find that the evidence provided
>by the Defendants supports the Defendant's claim that the proposed
>memorandum of understanding -- I don't know if it's a fait accom-
>
>pli at this point.  I realize the meaning is taking place now, or
>may be concluded, but at least for my purposes is a proposed
>memorandum of understanding.  As I understand the memorandum of
>understanding, the memorandum is promotive of competition.  And I
>would categorize it as pro competition.  It's purpose is certainly
>-- does not appear to be to stifle competition.  And even assuming
>that the elements of the combination have been established, at
>least for the purposes of the temporary restraining order applica-
>
>tion, any appropriate application of the anti-trust rule of reason
>considering, as applied to the Internet, suggests to me that
>there's certainly justification for the combination acting as it
>is.  And in particular, it's very difficult for me to ignore the
>evidence before me that those that are involved, at least these
>Defendants, have no proprietary or profit motive in their under-
>
>takings, whereas the Plaintiff has.
>          Furthermore, I find that the evidence is just not suffi-
>
>cient to support the claim of the Plaintiff, that either any of
>these Defendants, whether it be the IANA or the Ad Hoc Committee,
>or the Internet Society are acting in an anti-competitive manner.
>          There again, the anomaly we have here is that if the
>Plaintiff had its way, it would be willing to enter into an agree-
>
>ment with a combination that it believes is acting to restrain
>trade.
>          I further find that if the Plaintiff does have legal
>rights against any of these Defendants, that their remedy, if any,
>is -- can be compensated in monetary damages.
>          There's also been a failure on the Plaintiff to estab-
>
>lish irreparable harm justifying the imposition of injunctive
>relief.  Even assuming if I'm -- that my analysis is incorrect
>that the Plaintiff does not have an adequate legal remedy, that's
>to say monetary damages, what I have done is -- what I'm obligated
>to do, and that is to weigh the equities and consider the harm to
>the Plaintiff if injunctive relief is not granted versus the harm
>to the Defendants, and each and all of them, if injunctive relief
>is granted.  And when I refer to Defendants, "and each and all of
>them," I'm referring, even though the Internet itself -- I don't
>know how you could make the Internet itself a Defendant, but I --

>what I've considered in terms of the damage to the Defendants, by
>extension, is the damage to the Internet system.  And I've weighed
>the respective harms if I don't grant injunctive relief as the
>Plaintiff requested, and the harm if I do.
>          And the disruption to the Internet -- to the -- and the
>potential destabilization and disruption to the Internet so far
>outweighs the potential harm that there is harm to the Plaintiff,
>that frankly, I don't even think it's a close call when I weigh
>the equities and find the equities favor not granting injunctive
>relief.
>          And I must tell you, notwithstanding, Mr. Walter, your
>argument in connection with the extent of the interstate commerce
>clause and the ability of the Cartwright Act, to act as a long arm
>of California law and extend overseas, I do have, as I understand,
>the -- and it's not that I came upon this myself, it's clearly in
>one of the briefs, the reference to the -- to what appears to be
>congressional policy, although not the force of law, but that
>congress prefers that the Internet not be fettered with the --
>with governmental regulation, either by the federal government or
>the state government.
>          I do have a great deal of concern about a California
>trial court involving itself when considered with all the other --
>the global implications, the fact that -- of the Internet, the
>fact that there is no, per se, regulatory body, I concern myself
>when I gave consideration to the matter of potential disruption of
>the Internet and destabilization of the Internet to the question
>of whether or not there ought to be enforcement of a state law in
>this case, 17200 of the Business and Professions Code or, for that
>matter, the Cartwright Act, to the activities of the Internet.  It
>certainly caused me to hesitate as to the appropriateness, in view
>of what appears to be clear cut congressional policy.
>          So, for all of those reasons, the temporary restraining
>order is denied.  And for the reasons that I've indicated earlier,
>I don't feel it's appropriate to set this matter for an order to
>show cause re preliminary injunction.  That should take care of
>it. 
>----------------------------------------------------------------------
>

___________________________________________________ 
Roeland M.J. Meyer, ISOC (InterNIC RM993) 
e-mail: <mailto:rmeyer at mhsc.com>rmeyer at mhsc.com
Internet phone: hawk.mhsc.com
Personal web pages: <http://www.mhsc.com/~rmeyer>www.mhsc.com/~rmeyer
Company web-site: <http://www.mhsc.com/>www.mhsc.com/
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