Wednesday, August 11, 2010

In Which We Learn the Cost of Letting a Domain Name Expire During a Litigation

Lesson of the day: Just because you have won a court case does not mean you get to collect valuable prizes. It can be easier to win the case than to collect damages. Many losing parties when confronted with a piece of paper that says fork over property or cash, will respond with that legal defense, "yeah, you and what army?!?!?"

Today's case is one of those situations. Skydive Arizona, Inc. v Cary Quattrocchi, (D Arizona July 28, 2010). This is an Anti Cybersquatter Consumer Protect Act (ACPA) case where plaintiff had prevailed against defendant regarding six different domain names. The original Court ordered defendant to transfer the domain names in question to Plaintiff. The Defendant transferred five of the six domains to Plaintiff, but a funny thing happened on the way to compliance; apparently the sixth domain name expired before defendant could transfer it.

"Bummer," said Defendant. "Since I am no longer the domain name owner, and as the domain name is now held by someone else, it is quite impossible for me to comply."

According to the Court, the facts are like these: while the litigation was pending, the domain expired. It was picked by a domain registrar. When the court went to the website associated with the domain name (intelligently the court never actually names the domain name in question), the court saw a page indicating that the domain name was available for purchase (go look at as an example of one of these).

Before the Court was Plaintiff's Motion to Require Defendants to Perform Renewal Requirements to Effectuate Transfer of the Domain Name. In response to defendant's argument was that this would be impossible, the Court' said "too bad."

[] Defendants had an obligation to maintain the status quo with respect to their ownership of [The Domain Name that Must Not be Named] during the pendency of this action…Were it otherwise, litigation and arbitration decisions concerning proper ownership of domain names could easily be thwarted by defendants who allowed their domain name registrations to expire, then claimed they did so by mistake. Additionally, prior to the entry of the permanent injunction, Defendants had every opportunity to inform this Court that their ownership of [The Domain Name that Must Not be Named] had lapsed, but failed to do so. Consequently, the Court has little sympathy for the predicament in which Defendants now find themselves; in non-compliance with the permanent injunction.

Pursuant to Federal Rule of Civil Procedure 70, "'a district court may direct a party to complete a specific act where the district court previously directed the same party to perform the same act in its final judgment and that party has failed to comply.' Additionally, Rule 70 allows courts to hold the disobedient party in contempt." While impossibility may be a legitimate defense to compliance, it's not a legitimate defense, says the court, where the impossibility is your own dumb fault for letting the domain name expire in the first place.

In the end, the Court gives defendant two choices. Behind Door Number One: Defendant will reacquire the [The Domain Name that Must Not be Named] and effectuate the transfer; or behind Door Number Two: Defendant will be sanctioned $10k for failure to comply with the injunction.

Monday, August 09, 2010

[RFC] FCC re National Broadband Plan Recommendation To Create A Cybersecurity Roadmap

"By this Public Notice, the Federal Communications Commission's (FCC or Commission) Public Safety and Homeland Security Bureau (PSHSB) seeks public comment on the creation of a Cybersecurity Roadmap to identify vulnerabilities to communications networks or end-users and to develop countermeasures and solutions in preparation for, and response to, cyber threats and attacks in coordination with federal partners. The FCC's Cybersecurity Roadmap was recommended as an initial step forward in the area of cybersecurity as part of the Commission's National Broadband Plan (NBP). Specifically, the NBP recommended that the FCC issue, in coordination with the Executive Branch, a plan to address cybersecurity. The NBP further stated that the roadmap should identify the five most critical cybersecurity threats to the communications infrastructure and its end users and establish a two-year plan, including milestones, for the FCC to address these threats. In making this recommendation, the NBP stated that "[t]he country needs a clear strategy for securing the vital communications networks upon which critical infrastructure and public safety communications rely."

"The Cybersecurity Roadmap will establish a plan for the FCC to address vulnerabilities to core Internet protocols and technologies and threats to end-users, including consumers, business enterprises, including small businesses, public safety and all levels of government. Cybersecurity is a vital topic for the Commission because end-user lack of trust in online experiences will quell demand for broadband services, and unchecked vulnerabilities in the communications infrastructure could threaten life, safety and privacy. The NBP originally called for completion of the Cybersecurity Roadmap within 180 days (e.g., September 13, 2010). In order to ensure a complete and robust record in response to this Public Notice, we anticipate completion of the Cybersecurity Roadmap by November 2010.

"We welcome public input on these matters and the overall roadmap from interested parties. For example, commenters could offer responses to: What are the most vital cybersecurity vulnerabilities for communications networks or users? How can these vulnerabilities be addressed? What role should the Commission play in addressing them? What steps should the Commission take, if any, to remediate them? If the FCC does not play a role in addressing these vulnerabilities and problems, what agency or entity would fulfill that role? How should the Commission coordinate its efforts with other agencies of government?

. . . . .

8/9/10 FCC Seeks Public Comment on National Broadband Plan Recommendation to Create a Cybersecurity Roadmap.
Public Notice: Word | Acrobat

PS Docket No. 10-146

GN Docket No. 09-51

Comments Due: September 23, 2010

[RFC] FCC Seeks Public Input for Next Broadband Deployment Report

1. In this Notice of Inquiry (Inquiry), we solicit data and information that will help the Commission complete its annual task under section 706 of the Telecommunications Act of 1996, as amended, of determining whether broadband is being deployed to all Americans in a reasonable and timely fashion.  Specifically, section 706 requires the Commission annually to "initiate a notice of inquiry concerning the availability of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms)."  In conducting this Inquiry, the Commission must "determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion."  Section 706 also requires the Commission to provide "demographic information for unserved areas" and complete an international comparison of broadband service capability.  The Commission also must conduct a consumer survey to evaluate "the national characteristics of the use of broadband" and make the results of the survey public at least once per year.  If the Commission finds that broadband is not being deployed to all Americans in a reasonable and timely fashion, then the Commission "shall take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market." 

2. The purpose of this Inquiry then is to initiate the process that will allow the Commission to fulfill these statutory responsibilities.  We encourage companies, policy institutes, governmental entities, analysts, consumer groups, individual broadband consumers, individuals who live or work in unserved areas, and others to provide whatever objective, empirical data and evidence might be useful to help us complete the tasks identified above.  To facilitate the process, we ask a number of questions related to interpreting section 706 and measuring the availability and deployment of broadband.  We also encourage commenters to bring new issues to our attention, and to submit data and evidence to the extent reasonably related to the scope of section 706. 

3. Ensuring universal broadband availability is the great infrastructure challenge of our time.  The ultimate purpose of this Inquiry is to inform ourselves about the state of broadband deployment and its progress so that we can consider what additional actions, if any, should or should not be taken by the Commission to bring broadband to all Americans to ensure that "every American has a meaningful opportunity to benefit from the broadband communications era."

. . . . . 

8/6/10 FCC Seeks Public Input for Next Broadband Deployment Report
Order:Word | Acrobat

Genachowski Statement: Word | Acrobat
McDowell Statement: Word | Acrobat

Comment Date:           September 7, 2010

Reply Comment Date:   October 5, 2010