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Although the gTLD-MoU was unpopular, many stakeholders and policymakers still viewed the Network Solutions monopoly as the fundamental problem. The stalemate over draft-postel and the unappetizing alternative posed by the gTLD-MoU created a mounting sense of frustration, leading to more aggressive tactics.
One registry entrepreneur chose to challenge Network Solutions using antitrust law. Unlike the other alternative registries, Paul Garrin, the proprietor of Name.Space, believed that all top-level domains should be shared. In January 1996, Garrin established an alternative root that allowed customers to create a new top-level domain name on request. Garrin conceived of the registry as a 'publisher' of names proposed by customers, and exerted only 'editorial' control over the top-level names inserted into the DNS. By mid-1997, Name.Space was supporting approximately 530 new generic words as top-level domain names, such as .zone, .art, .music, and .space. In principle, any other company could register second-level names under the TLDs supported by Name.Space, but in order to do so it would have to make heavy investments in software development in order to interoperate with Garrin's system. In that respect Garrin was, like the gTLD-MoU, attempting to establish a new DNS root more or less under his control.
In March 1997, unable to attain critical mass for his alternative root system, Garrin formally asked Network Solutions to amend the root zone file to include Name.Space's top-level domains. Adding the Name.Space toplevel domains to the Network Solutions-operated root zone would have transformed the commercial environment of the DNS. As the only established registry for hundreds of new domains, Name.Space would have been quickly elevated to the status of a peer of Network Solutions. On the other hand, a refusal to add them might be construed as anticompetitive, bringing NSI into conflict with the antitrust laws.
Aware of the legal trap that was being set, Network Solutions deferred Garrin's request, replying that it had an unwritten agreement to refer all such requests to IANA. When the request was passed on to IANA, however, Postel refused to assert or accept any formal legal responsibility. A letter from a University of Southern California lawyer replied, 'We are aware of no contract or other agreement that gives IANA authority over [Network Solutions'] operations. The IANA has no authority to establish a generic top-level domain without an Internet community consensus arrived at through committee review and ample opportunity for public input.'
With IANA deferring to an amorphous 'Internet community consensus,' Network Solutions turned to the National Science Foundation for guidance, sending a formal request to the program officer supervising its cooperative agreement to add new top-level domains. In the meantime, Name.Space filed an antitrust lawsuit in federal district court. [18 ]
In its June 25, 1997, response to Network Solutions, the National Science Foundation rejected the request. The response cited ongoing discussions among the National Science Foundation and several other federal agencies of the 'governance and authority issues raised in your letter.' Because these discussions were not complete, the NSF requested that 'NSI take NO action to create additional TLDs or to add any other new TLDs to the Internet root zone file until NSF, in consultation with other U.S. government agencies, has completed its deliberations in this area and is able to provide further guidance.' [19 ]
In order to strengthen its legal position, in August the NSF issued a clarification that the June 25 letter was intended to be a directive under the 1993 NSI Cooperative Agreement. On September 17, 1997, Name.Space amended its complaint and named both Network Solutions and the National Science Foundation as defendants in its antitrust suit. [20 ]The amended complaint also accused NSF of violating free-speech rights guaranteed under the First Amendment by arbitrarily restricting the list of available domain names.
Although Name.Space later lost on all counts, the threat of antitrust liability forced the actors to clarify the formal sources and relations of authority. In response to the lawsuit, Network Solutions denied having any policy authority over the root, looking first to IANA and then to the U.S. government for responsibility. IANA, too, disclaimed authority over Network Solutions, and asserted only 'an equivocal authority over the root, the ability to act on the basis of consensus' (Froomkin 2000). The National Science Foundation, on the other hand, was forced to assume responsibility over Network Solutions through its Cooperative Agreement contract. And the federal government was pushed into arguing that its registry contractor was a government instrumentality.
AlterNIC's Eugene Kashpureff took even more radical action. Frustrated with Network Solutions' unwillingness to add new names to the root and the lack of new competition, he exploited a security hole in DNS implementation that allowed him to substitute the IP address of his own computer for the address of the Network Solutions server, and insert that false mapping into the authoritative name server for the InterNIC site. As a result, for a few days in July 1997 most users trying to register names at the Network Solutions-operated InterNIC were redirected to Kashpureff's AlterNIC site, where they encountered a protest message and a link to the real InterNIC site. 'If they think they own the entire domain name space,' Kashpureff told reporters, 'I've got news for them. Over the weekend, I possessed their name.' [22 ]
Kashpureff's domain guerilla warfare was perceived by some as a heroic act of civil disobedience, by others as dangerous and antisocial if not criminal. Either way, he had concretized the vulnerability of the DNS. Network Solutions filed a civil suit against him, which was settled when he paid a token fee and issued a public apology. The U.S. Federal Bureau of Investigation, however, later pursued him on criminal charges of wire fraud ( Diamond 1998).
[18 ]P.G. Media Inc., dba Name.Space, v. Network Solutions Inc., 97 CV 1946, March 20, 1997, <http://name-space.com/law/litigation_cont.html>. The original complaint also named the Internet Society and the IAHC as 'non-party coconspirators' for their role in forming the gTLD-MoU, but this aspect of the complaint was later withdrawn.
[19 ]D. Mitchell, NSF, to David Graves, Internet Business Manager, Network Solutions, Inc., June 25, 1997.
[20 ]PgMedia d/b/a Name.Space v. Network Solutions Inc and the National Science Foundation, 97 Civ. 1946 (RPP), second amended complaint, September 17, 1997, <http://www.name-space.com/law/litigation_nsf.html >.
'By redirecting the domain name ‘www.internic.net,' we are protesting the recent InterNIC claim to ownership of ‘.com,' ‘.org,' and ‘.net,' which they were supposed to be running in the public trust. Our apologies for any trouble this DNS protest has caused you. . . . We think we exercised restraint in the use of our latest DNS technology for this protest. We terminated the protest configuration at 8 a.m. Monday, July 14.' Cited in Courtney Macavinta, 'AlterNIC takes over InterNIC Traffic,' CNET News, July 14, 1997, <http://news.cnet.com/news/0-1004-200-320460.html?cnet.tkr>.
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