From: "Friedrich Kisters" <>
To: NTIADC40.NTIAHQ40(dns)
Date: 3/18/98 3:17am
Subject: Comments on the Green Paper and on the propositions by the CORE

Dear Ira Magaziner

I am closely following the discussion about the "Green Paper".

I noted that most of the comments that are supporting the ideas of the CORE are very emotional? I'd prefer the discussion to stay reasonnable.

1. It may be the best solution to have the IANA become the only registry and to allow as many registrars for all TLDs as possible. This would break both: the existing monopole (Network Solutions) and the intended one (CORE).

2. In fact, various people proposed that the IANA should become the only (non-profit) registry. The IANA should continue to accept domain-registrations on a first-come-first-serve basis. The lottery-system proposed by the CORE seems to me unacceptable and worse than what Network Solutions is doing right know. Even if 100.-$ is an exaggerated price for registering a domain-name, at least you are sure of getting the registered name after paying for it (which is not the case with CORE, where you first pay and then pass the lottery without any guarantee of getting your name in the end).

(By the way: With the ideas of the CORE, I guess that also existing domain-names will become more expensive and valuable: One new name would have to be registered with all the official 87 registrars of the CORE, in order to be sure to get it. This means minimum costs of 87 x 40.-$ = 3'480.-$. If you'd want to be 100% sure of getting it, you'd additionally need 87 premium-services, each at 10'000.-$ = 870'000.-$ ...

If you already own a "good" name you can be very happy with the ideas of the CORE: Look at the above costs for registering a new "good" domain-name - you'll quickly find out, why your domain-name will become more valuable.)

3. In fact I also think the argument to be very convincing, that there are still many two-word domain-names available with .com. It may create quite some confusion among the non-comercial users of the Internet (about 100 million people!), if too many new TLDs are created at once. Please keep in mind that these people are the wast majority in the Internet and do not have commercional interests. Everybody writing comments now (me included) does have economical interests - so please try to stay objective and find the best solution for the 100 million users and not for the 2 million commercionally interested people.

In my eyes it will be hard for users to remember the correct domain-name of a web-site they want to visit, if there exist hundreds of TLDs. It might be good to try it with some new gTLDs and see, if any confusion will be created or not.

4. I think it makes perfect sense to charge domain-names immediately and to deactivate them in case of pending payment within 30 days, not 4 months. Companies should be forced to use the online-payment for registering domain-names in order to prevent them from registering a domain-name without paying for it, and immediately after deactivation registering it again, ... and so on. This blocking of domain-names should become impossible.

5. It seems to me irrelevant, if there is or isn't a DNS-service required for registering a domain-name, as you can buy DNS-services everywhere at 10.-$/year without activating your domain-name. There is no difference, except the 10.-$/year.

6. I think a company ought to provide good service and/or good products, not just a "good" domain-name. If young companies will be created just because they were able to obtain a "good" domain-name, they won't last for very long.

7. Maybe the IANA could provide an automatic tool preventing anyone from registering a domain-name creating conflicts with existing trademarks within one or two new gTLDs, like e.g.: .world. The other gTLDs could be kept free from any trademark-laws and/or people would just have to sell their domain-names to the trademark holder upon his request at a fixed price.

This would guarantee one or two TLDs without any trademark-conflicts. In this new TLD the user could 100% rely on getting to the right company, he is looking for.

The other TLDs could be kept more liberal instead and maybe some Internet users think it to be good fun checking who is hiding behind a famous name in the other TLDs or using such a name for his own, private and non-commercional purposes.

The idea of creating two types of TLDs seems very striking to me: A very rigid and controlled type and a very liberal one. Then, the user himself will be able to decide where to go.

I hope you like these suggestions. If you'd like to discuss some of the above arguments, please do not hesitate to contact me.

Best regards

Friedrich Kisters


From: <>
Date: 3/17/98 11:33pm
Subject: Comments on the Green Paper by NAME.SPACE supporters

Dear Mr. Magaziner

I Mark Feingold am grateful for this opportunity to respond to the "Green
Paper" issued by the NTIA on 1-30-98. While the NTIA should be
commended for its attention to the DNS issue, and to the monopolistic
control of Network Solutions, Inc. over the domain name registration
market, the solution proposed by the NTIA is flawed in that it does not
create a truly competitive environment. The following is a list of
principles and policies that must be followed in order to produce a
competitive, efficient and equitable structure for DNS.

The need for universal resolvability of domain names requires, as NTIA
proposes, that root server functions be coordinated.

Root server functions for gTLDs are currently monopolized by NSI, which
has led to significant competitive disparities and thus to poor customer
service, inflated prices and lack of innovation.

A domain name is speech.

The only technical limit on the number of TLDs are the limits imposed by
the UNIX operating system. Otherwise put, it is technically possible to
have millions of TLDs. Therefore, there is no technical reason to
artificially limit the number of new TLDs to 5 or any other number for that

The only requirement for creating a new TLD should be that the creating
registry meet the technical requirements, as defined in the then applicable
RFCs for nameservers. If such requirements are met whatever entity is
entrusted with the maintenance of the "" file should make the
required change in a timely fashion.

The Market should decide what TLDs should be created.

NSI is a monopoly and this lack of competition has produced a system that
is unresponsive to consumer demands and extremely slow in developing and
implementing technical innovations.

While protecting the rights of Trademarks holders is a valid concern,
creating new TLDs does not increase the difficulty of policing trademark

The introduction of new gTLDs would help to organize the information
available on the Internet, thereby, making it more accessible to the
end-user of the Internet.

Best Regards,
Mark Feingold


From: <>
To: NTIADC40.NTIAHQ40(dns)
Date: 3/18/98 3:11pm
Subject: Shameful Government Sellout

Perhaps the most serious problem with the Green Paper (GP)
is the continuing support for monopolies. This support
is disguised by a claim at the beginning of the GP that
there will be multiple registries "competing" against
each other, but in fact the arguments presented are
quite the opposite:

"Some have made a strong case for establishing a market-driven
registry system. Competition among registries would allow
registrants to choose among TLDs rather than face a single

Each TLD will be entrenched in a monopoly registry which
will be able to set their own pricing, thus creating an
arbitrary system without ethical standards (probably the
reason NSI is getting sued right now over collecting
illegal tax).

Surely the GP in its present form is mandating creation
of a set of protected and unregulated monopolies. This is
inexcusable and a shameful government sellout.


Quentin Flores
Salem, NH


From: "Johan Kraus" <>
To: NTIADC40.NTIAHQ40(dns)
Date: 3/18/98 1:43pm
Subject: Let Core do business


Here is a small comment on the Draft.

The Internet seems to be working fine as is. I have ignored the U.S. .com and have
created a rather successful business through country level domains. .tm anyone?

I don't think I've laughed so hard while reading the Draft. Thank you for this attempt
at comedy.

Let Core continue the path it has started years ago when you were thinking of ways
to continue the NS monopoloy.

It is good to introduce .firm, .store, .info, etc. to the root servers.

Yours truly,


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From: <>
To: NTIADC40.NTIAHQ40(dns)
Date: 3/18/98 3:55pm
Subject: Important Points the draft overlooked

To the department of Commerce:

There are a few important points that the draft seems to have overlooked.

Firstly, the Internet is international, and therefore should have a domain
solution that is international in scope. The non-U.S. part of the Internet
experiencing much growth, and it is anticipated that a large amount of
will be located outside the U.S., which means an international Internet.

Secondly, the gTLD-MOU initiative is ignored. This project was initiated
ISOC and IANA in 1996, and is supported by the Internet community including

WIPO, INTA, ITU, and many other stakeholders. To ignore this established
initiative is foolish, considering it has established a code of ethics and
dispute resolution, is international in scope, and offers a workable

Thirdly, the NSI monopoly continues. The contract expires this month, and
should not continue its position of de-facto monopoly over .com, .net, &

Please consider these important points in your next draft.

Mary Pinchet
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From: "Edward Finning" <>
To: NTIADC40.NTIAHQ40(dns)
Date: 3/18/98 3:19pm
Subject: the proposed management of domains

To: the department of commerce:

The Green Paper proposal is completely unacceptable. The U.S. Government should support
the gTLD-MoU proposal, as it is the only realistic alternative at this point in time.
The .net, .com, and .org Top Level Domains have been under monopoly control for
the past years and the contract with InterNIC gave us the notoriously poor customer
service and uselessness of InterNIC. A shared registry with the new Top Level Domains,
with competing registrars, will almost definitely allow for improved customer service.
Don't ignore the proposals that are already in process. The Council of Registrars'
for instance.

Ed Finning
Seattle, WA

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account at


From: Greg_hinton <>
To: NTIADC40.NTIAHQ40(dns)
Date: 3/18/98 4:36pm
Subject: CNET 3/17/98 Article about NSI

Well the article from CNET (03/17/98) is no big surprise entitled "Class
action against NSI in court"

Network Solutions' role in domain name registration is mentioned in the
article as "the public scandal of the decade," according to attorney William

Bode also said the company's deal with the government is "a license to
To commit robbery on the information highway, [and] to accumulate fabulous
riches" at the public's expense.

I could not agree more. Is it any big surprise that NSI is overcharging
for domain name registration? Is this the future of the domain name system?
The hiking of fees for each domain extension?

Bode and his co-counsel, George
Nash, argued that the NSF/NSI deal gave Network Solutions an illegal
monopoly on registration for the major top-level domains.

It was "a license to charge people whatever they want[ed]," Nash said.

Network Solutions is slated to be one of the five registries proposed in
the draft. How can the government say they are introducing competition when
NSI is still allowed to sell .com, .net, and .org while the government sits
around and debates about it?

Count my vote for CORE.

Gregory Hinton Web Services
"Developing the Future"
Web Development and Design/ Internet Consulting and Training


From: Dan Steinberg <>
To: Elliot Maxwell <>
Date: 3/17/98 10:06pm
Subject: Re: Bode suit, it's more complicated


It was a pleasure meeting you in NYC to get an advance view of the GP
and make a few comments. As I hoped I stated strongly at the meeting, I
support your efforts. I think the GP is 85-90% there. But I am
concerned that events outside your process may serve to impede or delay
your progress, and yes I am talking lawsuits.

By now you have probably heard from Gordon Cook and several others that
the end of the world is nigh and that the US govt. stands to lose
everything in court when Bode steps up to bat. I doubt that anything
earth-shattering will happen immediately. The Bode suit can be
countered by mounting a vigorous defense, and the US govt. can
eventually find competent counsel.

But the problem is not limited to the Bode suit. There are other
factors/players involved, including at least one other high-profile
lawsuit. It is the combination of factors/players that could be
deadly. It is possible that one player will use the results and/or
USGovt admissions in one suit in another suit. It is even possible
that by winning in court, the US govt. ends up tying your policymaking

The attached document is short analysis for your reading pleasure. The
analysis points to the need for someone at a high level to do
legal/policy oversight on the ongoing legal situation.

Feel free to contact me if you need more information.


Dan Steinberg

SYNTHESIS:Law & Technology
Box 532, RR1 phone: (613) 794-5356
Chelsea, Quebec fax: (819) 827-4398
J0X 1N0

CC: Becky Burr <>


This document is an overview of some of the perceived peripheral legal issues. It is not intended to be a thorough legal analysis. Rather, it is intended as a warning that several lawsuits might impact policymaking efforts. First a brief introduction of the players.

There are currently at least three players:
PGMedia (AKA
Auerbach and the anti-NSI/privacy hawks


PGMedia sued NSI and and later joined NSF to gain entry to the roots for their numerous TLDs. The basis for the suit was anti-trust, claiming that NSI unfairly benfits from a monopoly position.

NSI publicly asked NSF for permission to add new TLDs to the root. NSF publicy refused, in letters dated June25, 1997 and August 11, 1997, stating that such a decision amounted to policymaking which they were not permitted to do. NSI had requested instructions from NSF after having been told in writing by IANA that IANA had no authority to add new gTLDs to the root zone. BTW, this statement by IANA may come back to haunt somebody one day.

Because of the public statements made by NSF, which PGMedia likens to a statement of control over the internet, PGMedia amended their complaint to include NSF. From their press release:

Thus, either the NSF has no authority, and NSI
should be allowed to comply with Federal and state
antitrust law in settling with PGMedia, or the NSF must,
pursuant to the First Amendment to the U.S. Constitution,
acquiesce in PGMedia's demand to unlimited and shared
Top Level Domain Names.

PGMedia's suit, the amended complaint and the various defenses can be found at:

The PGMedia suit was filed in NYC, which means DOJ has to manage this one long-distance. Not critical, but an added complexity. Anything that adds complexity adds risk to the overall DNS picture.


Bode & Beckman, LLP, filed a class-action suit on behalf of a few plaintiffs. In the suit, they made the following claims:

* NSI, as an agent of NSF, is not authorized to collect registration and renewal fees
* the 30% of domain registration fees amounts to a hidden tax without proper statutory authority
* the actual cost of a registration is around $3-$5
* everyone deserves a refund and NSI should be subject to ongoing audit (more or less)

They are seeking return of the intellectual property developed under the cooperative agreement, antitrust damages, declaratory and injunctive relief. For antitrust, they allege that NSF violated the competition on contracting laws by not re-bidding the contract instead of making a major modification to allow NSI to charge $100 for registrations.

They are also claiming that NSI unfairly benefits from a monopoly position, which would tie the hands of the US govt as well. All proposed solutions to the current DNS wars (except perhaps the CORE MoU) involve giving NSI something in recognition of their status as a major player and de facto home for .com.

This is the real killer one, because winning here effectively puts NSI out of the business. It is hard for the GP to recommend continuing .com at NSI if a judge has already stated that NSI shouldn't have been granted the contract amendment in the first place.

Bode recently won an injunction stopping congress from spending the contested money. Details of the injunction can be found at:

What they are saying essentially is that NSF didn't have the authority to amend the cooperative agreement to allow for fees the way they did. Putting everything back in place retroactively is a major headache. A more important point is that if they win, it could involve a declaration that the US govt. didn't (and still doesn't) have the authority to do much with respect to the net without involving Congress. This is a point that others are trying to make and it would be unfortunate if the Bode case proved it for them.

Karl Auerbach

The first two plaintiffs are a matter of public record. Not everyone has heard about Karl Auerbach. Karl Auerbach has not yet filed any suits, but he has them prepared. He has no apparent economic motive for his actions and threatened actions. The best guess is that he is acting on his general principles. Karl A. may be an unknown to you because he didn't make a submission to the NTIA RFC last summer. His views on the GP process and on NSF and NSI are contained in his submission.

Although no lawsuit has been filed, he has gone after NSF for not treating the whois database as a system of records under 5 USC 552a(f) and 42 CFR 613.

Karl A. wants NSF to exercise control over NSI. His tactic is to seek enforcement by NSF of 5 USC 552a. His analysis (not mine) of the situation can be found at

Athough it is just his analysis, it is hard to argue with. There is a strong possibility that a court might agree with him. The best I could do was argue that his primary points were secondary and vice versa.

One of his more important conclusions is that NSF's position is directly in contradiction with the GP. This conclusion is unfortunately supported by NSF documentation in the form of an official response to him. Said response is unfortunately not consistent with NSF's other public declarations on the matter.

Karl A. was ready to file suit on the privacy issue, except that I think I managed to convince him that he might win and what the consequences might be. This paragraph is pure speculation on my part. I make no claim to know what goes on inside of anyone's head.

What apparently got him to back off from filing his lawsuit was that the possibility of winning meant that NSI would have to shut down the whois database, which whould make every ISP very unhappy (and mad at him). To this extent, he has acted as a good netizen.

Karl A. 'officially' objects to the GP on the following (alleged) grounds:
1. It does not articulate any statutory or constitutional basis
on which the proposed actions can have a legal foundation.

2. It fails to address the statutory constraints dealing with computerized
records, in particular privacy.

He is concerned with what he perceives as the 'unfairness' of giving .COM, .NET, .ORG to NSI. He may do everything he can to stop this, including court action. He claims is to have found a 'hole' in the authorities cited for the GP. This is a change for him, because he used to claim that the authorities cited gave no justification for anything. Now he accepts the authority to make policy. He is still concerned with the privacy issues, even though he has not yet filed suit.

Of particular interest to Karl Auerbach is the results of the Bode suit. I don't think he supports all of their contentions, but might become very interested if Bode wins (or the US govt. settles) on the database issue. Bode wants NSI to return the whois database (and its content) to NSF. Once NSF gets it, Karl Auerbach might be prompted to finally file to ensure that NSF applied privacy rules to the database. NSF would not be able to claim that they didn't own the information if a court had ruled otherwise. Also, once someone else (Bode) has won and given the net someone to blame, he would be free to promote his agenda.

And he would be free to use NSF's contradictory statements in the PGMedia case and an in their responses to him. This would not be an easy one to defend against.

To complicate matters, all of Karl Auerbach's reasoning is available on his website and in his submission. He is not the only one who could do this. Anyone with a domain name could obtain the same standing pretty easily.


There are other related suits that might have an impact. This includes, but is not limited to, the ISOC suit over The important point is that anything established in court could impact other actions that the US government wishes to take. Many actions can be 'undone' via legislation but legislation takes time. If it is necessary to resort to legislation, then there is no hope of setting up a non-profit corporation and/or adding new TLDs in the immediate future.


The weak link in the chain is NSF. The fact that they lost the preliminary injunction is not by itself conclusive. The loss, combined with their other contradictory public statements and admissions, makes it apparent that they are not in control of the situation.

The greatest issue is the possibility that one or more of these players gets together. They can play off the various US govt. defense attorneys for their own common good.

A simple scenario would involve getting Karl A. to file his threatened lawsuit against NSF. NSF has made statements on record to the effect that they have no authority over the database at NSI. If Karl A. sues, the US. govt. is faced with either:

* trying to win, thus exercising authority and helping Bode and PGMedia
* deliberately losing to avoid prejudicing the other cases, and causing disruption of the net

There are many other possible scenarios.

On a micro level, NSF is stating that they have control in one litigation and telling a potential litigant that the have little or no control over either DNS or their sub-contractor. They have not yet made a clearly fatal admission, but...

On a macro level

It is impossible to guess in advance what each of the players might try, either alone or in concert. Any litigation strategy must be continuously evaluated against new developments. Course corrections may be minor or major, depending on the potential impact. These corrections should be made in order to facilitate implementation of US govt. policy, and not simply with a view towards winning any particular lawsuit.

My point is that someone at a very high level should be:

* monitoring all the cases (and the high-probability potential cases)
* providing high-level strategy to all attorneys such that the US govt. goes into court with a concerted agenda and does not make irreparable mistakes, admissions or even wins for the wrong reasons.
* coordinating with NSF and other agencies to ensure that they don't make other mistakes that could affect the GP and general plans to privatize the net governance.
* ensuring that the US govt. goes into court well prepared for all of the cases. This might involve increased supervision or actual replacement of counsel.


To: NTIADC40.NTIAHQ40(dns)
Date: 3/18/98 5:56pm
Subject: Deadline for Comments

Please inform me of the deadline for filing comments for the Discussion Draft
on Technical Management of Internet Domain Names.

Thank you,
Richard Dutchman