Pgmedia, Inc. v. Network Solutions, Inc., 97 CIV.1946 RPP.

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation51 F.Supp.2d 389
Docket NumberNo. 97 CIV.1946 RPP.,97 CIV.1946 RPP.
PartiesPGMEDIA, INC. D/B/A Name.Space™, Plaintiff, v. NETWORK SOLUTIONS, INC. and the National Science Foundation, Defendants.
Decision Date16 March 1999
51 F.Supp.2d 389
PGMEDIA, INC. D/B/A Name.Space™, Plaintiff,
v.
NETWORK SOLUTIONS, INC. and the National Science Foundation, Defendants.
No. 97 CIV.1946 RPP.
United States District Court, S.D. New York.
March 16, 1999.

Paul, Weiss, Rifkind, Wharton & Garrison, New York by Daniel Lefell, Blumenfeld & Cohen, Washington, DC by Gary M. Cohen, Glenn Manishin, for Plaintiff.

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Sullivan & Cromwell, New York by William M. Dallas, Jr., Anthony Candido, Hanson & Malloy, Washington, DC by Philip L. Sbarbaro, for Defendant Network Solutions, Inc.

Mary Jo White, United States Attorney for the Southern District of New York, New York by Steven Haber, for Defendant National Science Foundation.

OPINION AND ORDER

ROBERT P. PATTERSON, Jr., District Judge.


Now pending before the Court are the motion of plaintiff PGMedia, Inc., d/b/a name space™ ("PGM") for summary judgment on Count VI of its second amended complaint, a claim for declaratory judgment1; the cross-motion for summary judgment on Count VI of defendant Network Solutions, Inc. ("NSI"); and the cross-motion of defendant National Science Foundation ("NSF" or "the Government"2 ) for an order staying this matter or, in the alternative, for summary judgment as to Count VI. For the reasons set forth below, PGM's motion is denied as to both defendants; NSI's cross-motion is granted; and NSF's cross-motion for summary judgment is granted.

Background

This complaint seeks to change the control of the vast network of computer networks known as the Internet. More specifically, it is a case concerning the authority to register domain names on the Internet. Domain names are something akin to mail addresses. But unlike real space, in cyberspace there is no logical connection between one's address and one's physical location on a defined map such that the address is easily discernable. Instead, in cyberspace one can choose virtually any domain name, with certain limitations. One limitation is that the domain name can end with one of only a handful of so-called top level domains ("TLD's").3

There are currently seven generic TLD's ("gTLD's"): ".com," ".edu," ".gov," ".int," ".mil," ".net," and ".org." (Strawn Decl. ¶ 20.)4 A complete Internet domain name consists of groups of alphanumeric characters, each known as a string, separated by a period, which is known and pronounced as "dot." The last string-the farthest to the right-is a TLD. (Graves Decl. ¶ 13.) Thus, for example, the Internet site for the Southern District of New York can be found at "usdcsdny.gov," and the domain name of National Public Radio is "npr.org." Each string can be up to 63 characters in length, but the overall domain name can be no longer than 255 characters. (Strawn Decl. ¶ 18.) There are approximately 2.4 million domain names with the .com TLD but less than 400,000 with .org, .net, .edu, and .gov combined. (Strawn Decl. ¶ 40.)

Computers on the Internet do not actually find each other using domain names like usdcsdny.gov. Instead, they use a number known as an Internet Protocol or IP number. Each entity connected to the Internet has one or more unique IP numbers, separated by periods; the overall IP

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number can be no longer than 12 digits. (Strawn ¶ 13.) When the Internet was first developing, the IP numbers were assigned and maintained by the late Dr. Jon Postel at the University of Southern California; this effort later became known as the Internet Assigned Numbers Authority ("IANA"), which still allocates IP numbers today. (Strawn Decl. ¶ 14.) Postel took on this task when he was a graduate student at UCLA, pursuant to a contract between the Defense Department's Defense Advanced Research Projects Agency ("DARPA") and UCLA. Management of Internet Names and Addresses, 62 Fed. Reg. 31741 (1998). In 1987, the Internet community agreed on a new protocol, announced in Request for Comments ("RFC") 1034, dated November 1987 and written by one P. Mockapetris. (Strawn Decl. Ex. B)5, for associating named addresses with IP numbers so that users would not have to remember strings of numbers but could use words instead.6 For example, the Southern District of New York Internet site can also be found by its IP number, 156.121.20.201.

The protocol announced in RFC 1034 is known as the Domain Name System ("DNS"). (Strawn Decl. ¶ 16.) DNS is a hierarchical tree structure (Strawn Decl. Ex. B §§ 3.1-3.3) and uses a distributed database. (Strawn Decl. ¶ 19.) That database is initiated by "root servers." When a user types a domain name such as "usdcsdny .gov," his computer must first match that domain name to its associated IP number in order to locate the Southern District's Internet site in cyberspace. The computer attempts to match the domain name to the IP number by sending out a an address query. The matching of an IP number to a domain name is known as DNS name resolution. (Strawn Decl. ¶ 25.) The match information (for example, that "usdcsdny.gov" can be found at 156.121.20.201) is stored on various Internet-connected computers around the world known as domain name servers. Thus, the goal of the address query is to find the particular domain name server which contains the match information the user is looking for. (Strawn Decl. ¶ 19.)

Address inquiries are processed hierarchically beginning with the TLD. The highest level of the DNS database is the root zone file, which directs a query to the TLD zone file, which contains information regarding the location of gTLD's and the ccTLD's. In the case of someone searching

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for "usdcsdny.gov," the root zone file will refer the query to a TLD zone file containing information about .gov domain names.7 The .gov zone file then refers the query to a second level domain ("SLD") file which contains all the SLD entries under .gov. (Strawn Decl. ¶ 20-21.) This is where the usdcsdny.gov query ends: the SLD file has the information matching the domain name to the IP number. With the IP number, the user's computer can now connect him to the requested Internet location. The Southern District's home page will appear, just as if the user had typed in the IP number instead of the alphanumeric address.

A new user who wishes to have an Internet site with an alphanumeric address first must obtain an IP number from IANA or a registry or Internet Service Provider ("ISP") that has already obtained a block of IP numbers from IANA. (Strawn Decl. ¶ 23; Manishin Decl. Ex. 5 at 11.) For example, she may receive the IP number 1.23.456.7. She then registers her domain name-say, "judicial-lawclerks.com"-and it becomes associated with her IP number.8 The information that judical-lawclerks.com can be found at 1.23.456.7 goes on the "A root server." There are a total of 13 root zone files in the Internet, named A through M; servers B through M download new domain name registration information on a voluntary9 and daily basis from the A server. (Strawn Decl. ¶ 26; Holtzman Decl. ¶ 8; Graves Decl. ¶ 29.)10 In this way, no matter which root zone file a user's computer utilizes to begin an address query, the query can be completed successfully-in other words, the domain name is successfully resolved. (Strawn Decl. ¶ 26.)

The issue at the heart of this case is who handles the registration of new domain names and places the information regarding new registrations on the A root server each day. The current registrar for new domain names under the .com, .org, .net, and .edu TLD's is NSI. (Graves Decl. ¶ 16.) NSI has provided these registration services since 1993 pursuant to a Cooperative Agreement with the NSF. (Strawn Decl. Ex. F.) Pursuant to Amendment 4 to the Cooperative Agreement, NSI charges $100 to register a domain name for a two year period and $50 a year thereafter. Of the funds NSI collects from these charges, it keeps 70 percent; the remaining 30 percent is "placed into an interest-bearing account which will be used for the preservation and enhancement of the `Intellectual Infrastructure' of the Internet in general conformance with approved Program Plans." (Cooperative Agreement, Amendment 4 (dated September 13, 1995), Strawn Decl. Ex. F.) As noted above, there are almost three million domain names

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currently registered under the four TLD's for which NSI handles the registration.

To understand how NSI became the registrar of certain TLD's, it is necessary to understand the history and development of the Internet. Before the Internet, there were two networks known as ARPANET and NSFNET. (Strawn Decl. ¶ 5.) The entities who used these networks were research oriented organizations-mostly within government, business, and academia. ARPANET users engaged in military research and received funding from the Defense Department ("DOD") and like agencies, while NSFNET users included ARPANET users plus scientific researchers receiving funding from NSF, other Federal agencies, universities, and corporations. (Id.) By 1995, those networks had generally been known as the Internet. (Id. ¶ 6.) The IP numbering system was established in 1983 as part of a network system software called Transmission Control Protocol/Internet Protocol ("TCP/IP"). (Id. ¶¶ 6, 13.) The NSF supported many of the original technical studies that developed the Internet Protocol. (Pl.'s 56.1 Stmnt. ¶ 7.) Over time, more and more institutions and sites desired to be connected to the network (Id. ¶ 8.) and those that did connect were required to operate in accordance with TCP/IP and other consensus-based network standards. (Id. ¶ 10.) The Internet Engineering Task Force (supra, note 5) began in 1986 and received NSF support. (Id. ¶ 11.)

Assignment of IP numbers and registration of domain names was initially the responsibility of IANA. (Id. ¶ 27.) The actual registrations were conducted by the Defense Information Systems Agency Network Information Center, operated by a military contractor. (Id.) In the late 1980's, NSF began to support registration services for the non-military network. (Id. ¶...

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