I Hope Dr. Berryhill is Familiar wtih WLS

[lotsofissues]

WLS is dominating discussion now--at least at Domainstate. After last weeks Senate hearings the attention is on the Enom, Godaddy, and Dotster lawsuit against ICANN.

Here is the complaint page:
http://www.stopwls.com/lawsuit.pdf

Dr Berryhill,

Can you give us an idea what is needed for a jury trial to proceed? If it proceeds how will you predict it will affect WLS' scheduled implemmentation in Oct. If it doesn't proceed how much more delaying is availible to the coalition? If there is a trial how much time could they squeeze out of it? If they lose -- how much time can they still squeeze? Thanks.

Lots

[lotsofissues]

Oh damnit. :(

[jberryhill]

I don't recall off the top of my head whether the plaintiffs have moved for a preliminary injunction. But unless they successfully obtain one, I see no reason why the defendants should change their plans at all.

[lotsofissues]

Dr. Berryhill,

Feel like project the odds of the injunction being granted?

[jberryhill]

There are four factors that go into a preliminary injunction decision:

1) Likelihood of harm to the defendant if granted

2) Likelihood of harm to the plaintiff if not granted

These first two factors, called the "balance of harms" weigh pretty heavily toward granting an injunction. After all, VRSN is not currently running the WLS, so the harm to them is a delay in starting it. On the other hand, the registrars will be wiped out if it isn't granted. But, there are some more factors....

3) Likelihood of Plaintiff's success on the merits

This factor doesn't require the court to decide the case, but to take a quick look at the picture and go on an initial impression of what the odds are. If the case looks like a slam dunk for the plaintiff, then it is easy to grant a preliminary injunction. This is a pretty muddy factor in this case. On the one side, you can whine about "monopoly" all you want to, but the fact is as I have written elsewhere, there are two patents which are likely to be granted in the near future that are going to present a serious obstacle to the registrars anyway. On the other side, you have the classic ICANN argument - "We are a technical coordinating body chosen by the federal government to manage the domain name system, and our board voted for this after long and careful deliberation." This case is not a "slam dunk" for the plaintiff.

4) The Public Interest

As we know, arguments are all over the map on this factor.

The lack of clarity in factors 3 and 4 make this a tough call. And if it is a tough call, then the default decision is not to grant an injuncition.

You can toss a coin on this one.

[lotsofissues]

This deserves a best post award. Thanks.