Second Advisory Concerning Register.com v. Verio Litigation

(26 December 2000) As previously reportedin an advisorydated 24 September 2000, on 3 August 2000 Register.com, Inc.(an ICANN-accredited registrar) filed a lawsuit (No. 00-Civ-5747(BSJ)) against Verio Inc. in the United States District Courtfor the Southern District of New York. The lawsuit concernedVerio's use of information obtained from Register.com's Whoisservice to contact Register.com customers by telephone and otherwiseto solicit them to become Verio customers. Among other things,Register.com asserted that Verio's solicitations violated a restrictivelegend displayed on the output of Register.com's Whois service.In the lawsuit, Verio asserted that the legend violated Register.com'sRegistrarAccreditation Agreement with ICANN.

At the Court's request, ICANN submittedan amicuscuriae memorandum, which stated (in summary):

• It appears that the process used by Verioto enable it to gather the Whois information was contrary toICANN policy;
• 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.In reaching its decision, the Court concludedthat the Accreditation Agreement "creates no right in Verioto breach its agreement to abide by Register.com's terms of usefor accessing its WHOIS data" and that the "AccreditationAgreement represents a private bargain between ICANN and Register.comand does not provide Verio with any privilege or defense."

After the Court's decision, on 21 December2000, Verio submitted to 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.