October 18, 2006

Spamhaus v. E360Insight, ICANN, and There Is No Domain Crisis In The Making

I'm going to spit into the wind, and anti-hype the story about "Spamhaus appeals possible shutdown ruling". Background: A spam-enabler in the US sued an anti-spam organization, SpamHaus, based in the UK. The UK organization deliberately didn't show in US court, so the US court awarded awared the case to the US spam-enabler by default. Now, the US spam-enabler filed a proposal with the court that the UK anti-spam organization be forced to give the US spam-enabler their domain name. This bit of nasty legal posturing is being treated as if it were earth-shattering, or at least cybernetintertarweb-shattering.

Here's a good analysis from a mailing list:

From: Jonathan Zittrain <zittrain[at-sign]law.harvard.edu>
Date: October 8, 2006 5:05:04 PM EDT
Subject: more on ICANN NOT ordered by Illinois court to suspend spamhaus.org

Dave and IP,

I don't see cause for panic on the Spamhaus lawsuit.

1/ The subject line of this thread is puzzling, since the document at <http://www.spamhaus.org/archive/legal/e360/kocoras_order_6_10.pdf> is merely a proposed order, no doubt put forward by the plaintiff. The plaintiff is welcome to file proposed paperwork with the judge, but that doesn't make it an order until the judge signs it.

2/ An alert judge would not sign this document. There are specific state practices (and often statutes) about how default judgments are handled, and about how any sort of judgment translates into anything that binds a party outside of the case. For example, banks can sometimes be ministerially ordered to attach wages or seize accounts of people who owe money in lawsuits, or land can be auctioned. But something like a domain name is a far cry from a bank account or a house, and the registrar would have plenty to say about what to do with what is more a contractual relationship than a sum of money or a piece of real property.

3/ If the judge isn't alert and just signs, the registrar would have plenty of interventions to make if it chose -- and indeed it may not even be under the jurisdiction of the court.

There's some chance this could turn out to be more than mildly interesting, but I don't see any reason to think it's some grave event for cyberspace. ...JZ

[Update Friday 10/20 6pm: And per AP report, the court turned down the proposal]

By Seth Finkelstein | posted in spam | on October 18, 2006 03:08 PM (Infothought permalink)
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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nice reporting and analysis, thanks Seth

Posted by: dustnashes at October 18, 2006 05:13 PM