Subject: Re: Ambler pretends to own .WEB again.

From: "Christopher Ambler" <[email-masked]>
Date: Thu, 16 Jul 1998 14:37:44 -0700

>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.

>No one has to believe me on this. I'm including, YET AGAIN, the
>transcript of what the Judge said, officially, in an actual court of
>law, on this subject. See the end of this message for said transcript.

Yes, please read it everyone, as Perry goes to the trouble to post it
every week or so. Remember, please, that the judge is commenting
only on IOD's request for a TRO to prevent the signing of the MoU.
The lawyers on this list will realize that Perry's assessment above
does not mesh with the judge's decision.

>I'm utterly astonished by your continuing public claims in the
>matter. Have you not the least bit of shame?

I should ask the same of you. Personally, I don't much care for your
assessment. If it ends up back in court, perhaps I'll see you there.
I would take a lot of personal pleasure in seeing you on the witness
stand.

Have a nice day. See you in Geneva?

--
Christopher Ambler, Personal Opinion Only
--
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---

From: Fred Baker <[email-masked]>
Date: Thu, 16 Jul 1998 18:11:09 -0700

At 07:27 PM 7/16/98 -0400, Perry E. Metzger wrote:
>"Christopher Ambler" writes:
>> Can we drop this?
>
>No. We can not.

But you can take your childish ad hominem debate somewhere else. Anywhere
else, I don't care, as long as I'm not on it. You have both been asked,
both privately and publicly, by me and by others. KNOCK IT OFF!

At 06:27 PM 7/16/98 -0400, Eric Germann wrote:
>Thanks folks, for destroying an engineering list.

I concur.

---

From: "Roeland M.J. Meyer" <[email-masked]>
Date: Thu, 16 Jul 1998 23:15:13 -0700

At 05:52 PM 7/16/98 -0400, Perry E. Metzger wrote:
>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:[email-masked]>[email-masked]
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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