But then you know that. You just don't *WANT* NSI to prevail, right?
They prevailed big time today with the DC Circuit's
decision in the Thomas case. This is probably the
most influential federal appellate court short of the
US Supreme Court - particularly on matters relating
to the US government. The decision was authored by
a senior, well-respected jurist. The language vis-a-vis
Network Solutions' role under the NSF cooperative
agreement should be fairly dispositive regarding
matters, for example, relating to its intellectual
property.
See below and at
http://www.cadc.uscourts.gov/common/opinions/199905/98-5502a.txt
--tony
If a statute required NSF to
register domain names, and NSF farmed this out to Network
Solutions, the Act might apply. But that is not the situation
before us. The key governing statute is 42 U.S.C. s 1862(g).
While s 1862(g) may, or may not, permit NSF to register and
renew domain names--we do not need to reach this ques-
tion--we are certain that it does not require NSF to do so.
It merely directs NSF "to foster and support access ... to
computer networks." 42 U.S.C. s 1862(g). One way to fulfill
such a broad mandate, NSF apparently decided, was to enter
into a cooperative agreement with Network Solutions to have
the company register and maintain second-level domain
names.
Here, a private party (Network Solutions) per-
formed the domain name registration services--and did so as
it saw fit. Registrants' amended complaint acknowledges
Network Solutions' near total command over domain name
registrations: "NSF has not and does not directly supervise
or manage any NSI activities pertaining to the Domain Name
registration process. The only 'control' and 'oversight' exer-
cised by NSF over NSI and the Domain Name registration
process is the contractual requirement that NSF submit
certain limited quarterly and annual reports."17
17 Registrants' admission that Network Solutions--not NSF--
controlled the domain name registration process negates regis-
trants' claim that Network Solutions was merely NSF's agent.
...the question becomes whether domain name registra-
tion is a government service or thing of value within the Act's
meaning. The answer, we believe, is no. As we said, Con-
gress chose not to require NSF or any other agency of the
federal government to register domain names. Simply be-
cause NSF might have been able to perform domain name
registration does not transform this activity into a govern-
ment service or thing of value. A recent and novel function
such as domain name registration hardly strikes us as a
"quintessential" government service, as registrants suppose.18
18 Registrants also stress the "public purpose" of domain name
registration. But as the Supreme Court has said, albeit in a
slightly different context: "[T]hat a private party performs a func-
tion which serves the public does not make its acts governmental."
San Francisco Arts & Athletics, Inc. v. United States Olympic
Comm., 483 U.S. 522, 543-44 (1987) (citation omitted).
