Third Advisory Concerning Register.com v. Verio Litigation

As previously reported in advisories dated24 September 2000and 26 December2000, on 3 August 2000 Register.com, Inc. filed a lawsuit(No. 00-Civ-5747 (BSJ)) against Verio Inc. in the United StatesDistrict Court for the Southern District of New York. The lawsuitconcerned Verio's use of information obtained from Register.com'sWhois service to contact Register.com customers by telephoneand otherwise to solicit them to become Verio customers. Amongother things, Register.com asserted that Verio's solicitationsviolated a restrictive legend displayed on the output of Register.com'sWhois service.

During the litigation, facts came to lightsuggesting that Verio is using zone files obtained from VeriSignGlobal Registry Services to initiate robot-implemented, repetitivequeries of Register.com's Whois service. On 21 September 2000,ICANN requestedVeriSign to investigate the circumstances under which Veriois obtaining the zone-file data.

On 22 September 2000 ICANN submitted tothe Court an amicuscuriae memorandum, which stated (in summary):

• It appears that the process used by Verioto enable it to gather the Whois information is contrary to thezone-file access agreement specified in the Registry Agreementbetween ICANN and VeriSign;
• Register.com's legend, if applied in responseto Whois queries made through proper means, exceeds the restrictionspermitted by sectionII.F.5 of its Registrar Accreditation Agreement with ICANN;and
• The exclusive means of legally enforcingthese restrictions are through ICANN's invocation of the remediesstated in sections II.Nand II.Pof the Registrar Accreditation Agreement, not by a third partyraising them as a defense to a claim brought by a registrar.

On 8 December 2000, the Court issued anOrderenjoining Verio from, among other things, usingautomated methods to access Register.com's Whois service,other than in compliance with Register.com's restrictive legend.The Court's decision rejected Verio's defense that the restrictivelegend violated sectionII.F.5 of Register.com's Registrar Accreditation Agreement withICANN, suggesting that Verio should present any complaintsabout Register.com's compliance with that Agreement to ICANN.After the Court's decision, on 21 December 2000, Verio submittedto ICANN a "Petitionfor Termination of Registrar Accreditation Agreement with Register.com."To assist it in determining how to proceed, ICANN has requestedthat Register.com submit a response to that petition.

Two documents, which can be viewed at thelinks below, have recently been submitted to ICANN in this matter:

1. On 26 January 2001, Register.com submittedits responseto Verio's petition to terminate Register.com's accreditation.Among other things, the responsestates that "in light of its past discussions with ICANN"on the topic, Register.com has re-evaluated its position and"has recently licensed its bulk WHOIS data to one licensee . . . ,and has made its bulk WHOIS data available to seven other potentiallicensees on identical terms."

2. On 30 January 2001, VeriSign GlobalRegistry Services submitted the reporton its investigation. The report finds that Verio is continuingto download zone files from the registry, and that it appearsthese files have been used to initiate miningof the registry's Whois database and those of registrars.VeriSign's report recommendsvarious "corrective actions" and statesthat "Verio has been notified by the Registry that any furtheruse of the Registry's TLD Zone files or high volume, automatedelectronic queries against the Registry's WHOIS database willbe considered a violation of Verio's current bulk access Agreementsbetween the parties and will result in termination of those Agreements."

ICANN expects to invite Verio to submita response to these two documents.