Panel Revives Case Over Domain-Name Registry

[Rocket2Uranus]

http://biz.yahoo.com/law/030423/8aed...fad582d_1.html

Panel Revives Case Over Domain-Name Registry
Wednesday April 23, 2:01 am ET
Tom Perrotta, New York Law Journal


A ruling Tuesday by a Manhattan appeals court could clear the way for a class action lawsuit against the Internet's second-largest domain-name registration company for its past advertising practices.
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The suit, filed in state Supreme Court in Manhattan, alleges that Register.com, which registers domain names for a $35 fee, misused the Internet addresses of new customers by redirecting those links to a "Coming Soon" Web page until the customers developed Web sites of their own.

The "Coming Soon" page contained advertisements for Register.com and other companies.

Michael Zurakov, the lead plaintiff in the suit, which has yet to be certified as a class, claims it took him several months to stop his Web address -- Laborzionist.org -- from redirecting to the "Coming Soon" page.

In that time, he alleges, Register.com used his Web address without his permission to direct others to the company's own site and to sell advertisements.

In a suit before Supreme Court Justice Karla Moskowitz, Zurakov alleged that Register.com had breached its contract because he had purchased the exclusive right to Laborzionist.org.

Justice Moskowitz disagreed in July 2001 and granted Register.com's motion to dismiss, saying Zurakov had simply paid Register.com to "register" his site, or make a record of it, since the word "register" was not otherwise defined in the contract. She noted that the word "control" did not appear in the contract.

But Tuesday, a unanimous panel of the Appellate Division, First Department, partially reversed the judge's ruling, saying Zurakov's claim for breach of implied covenant of good faith and for deceptive practices under General Business Law ? 349 could go forward.

"There is no question that the instant contract does not in express terms grant plaintiff control over the domain name or the exclusive right to use the name," Justice Betty Weinberg Ellerin wrote for the court. "However, the benefit to plaintiff of his contract with defendant would be rendered illusory if the effect of registering the domain name in his name were merely to have the domain name placed next to his name in some official record ... and not to grant him exclusive control of it."

Justice Ellerin noted that the "exclusiveness" of a registered domain name is "already a familiar concept of law," citing the U.S. Court of Appeals for the Second Circuit's holding in Name.Space v. Network Solutions, 202 F3d 573 (2000), and the First Circuit's holding in Sallen v. Corinthians Licenciamentos LTDA, 273 F3d 14 (2001).

The judge also reinstated a claim for deceptive business practices, saying the record was inconclusive as to whether a reasonable consumer would turn to Register.com's Web site, which contained a disclaimer about the "Coming Soon" page, rather than rely solely on the domain-name registration contract.

Shortly after Zurakov filed his suit two years ago, Register.com changed its domain-name contract to include a disclaimer about the "Coming Soon" page and an option to avoid it, said Zurakov's attorney, John Blim of Blim & Edelson in Chicago.

Blim said he would immediately move to certify a class, which he estimated to comprise 3 million plaintiffs. He declined to estimate the amount of damages the class would seek.

"They've taken from each of their customers some portion of what those people paid their money for," he said. "It's a little like a pizza man who delivers you a pizza but takes a bite out if it."

Scott D. Brown of Skadden, Arps, Slate, Meagher & Flom, who represents Register.com, could not be reached for comment.

Justices Eugene Nardelli, Angela M. Mazzarelli, Joseph P. Sullivan and George D. Marlow concurred with Justice Ellerin's opinion.

[jberryhill]

This lawsuit strikes me as being simply goofy. Nobody puts a gun to anyone's head and says "Use our nameservers" when you register a domain name.

[Rocket2Uranus]

I'm not sure what to think.

On the one hand, for $35 they should be kissing some serious butt and showing registees (is that a word?) how to make their own money. Plus, as (I believe) a wholly owned subsidiary of Verisign/NSI, it would be gratifying to see them take a hit.

On the other hand, I'm not sure where the law would be being broken here, unless the trouble this guy had redirecting his domain was due to Register's incompetence. And of course, if that's the case, then unless it is part of a pattern of obstinance, then there would be no grounds for class action...

[DNS Kidd]

If you reg a name, why should it resolve to an ad page for the registrar?

Check out an unused name at register.com. It shows about 6 ads, 2 pop-ups, and some search prompts. You most likely have to opt-out to have a new reg resolve to a blank page or not resolve at all.

http://www.iraqiwars.com/

I don't know why it would take more than a day to have the name stop resolving to a "Coming Soon" page. Maybe the guy didn't have his own name servers ready yet and had to leave the name parked at the registrar.

Without another pair of name servers, people would be forced to leave the name parked, and the resolution pointed to whatever the registrar wants.

[dtobias]

Originally posted by DNS Kidd
Without another pair of name servers, people would be forced to leave the name parked, and the resolution pointed to whatever the registrar wants.

When I first started registering domains, it was a mandatory requirement that you have two name servers already... the then-monopoly registrar (Network Solutions) didn't provide them for you. It used to be that some degree of technical cluefulness and preparedness were necessary to register a domain... those were the good-ol'-days. It actually still seems to be this way with some CCTLDs... a while back when I registered a .mx domain (Mexico), the registration form not only required that I supply a functioning DNS server, it actually did a query to make sure it was configured to resolve the new domain, before it would allow me to register it.

Anyway, if this guy was too clueless even to check his newly-registered domain in a browser for several months after registering it (the claim in the suit seems to be that he was unaware of Register.com's ads for months), he deserves what he got. It's fairly normal practice for registrars, Hosting providers, and the like to put default parking pages, often with ads, on domains and sites that aren't set up yet. It takes only a minimal degree of initiative to replace this with a page of the owner's own choosing. Anybody who can't or won't do that shouldn't gripe about the default page they get instead.

[jberryhill]

"Without another pair of name servers, people would be forced to leave the name parked, and the resolution pointed to whatever the registrar wants."

I am in complete and enthusiastic agreement, as usual, with Mr. Tobias on this one.

If you don't have two nameservers of your own, then you are not in a position to comply with the relevant RFC on domain name registration, and hence are not qualified to register a domain name (as if anyone cared about the RFC's anymore). You are certainly not in a position to gripe about what the registrar does if you use their nameservers.

You are paying them for domain name registration. If they provide default nameservers, that's nice, but somewhere on the internet there are two machines that are fielding those DNS queries. Those machines don't run for free.

[draqon]

i think its pathetic that people have so much free time that they can whine about the ads that their domain is pointed to while they are not using it.

[bidawinner]

Umm ? Exacatly WHY should he check his domain..he didnt point it to any nameserver, nothing to check.
He wasnt aware that register.com STOLE his domain for THEIR advertising..


I think you guys are wrong on this one.

Yes, It is standard procedure now from most of the registras to set default as their own servers and try and PROFIT off of the unaware.Does that make it ethically right? does that make it legal ?

I dont really have a problem with them"exchanging" nameserver space for thier advertising,it's the sneaky way they all went about it. Istead of placing a notice and asking permission..they just do it..

It is that arrogance that pisses people off. Anything they can get by with for a buck.

Like I said I dont mind them doing it, the extra advertising probably helps keep the prices down and offers a few extra points towards profitablity.

The problem is who gives a ratts ass if it is their nameserver it 's the registrants name...and where was the express permission that he said..sure go ahead advertise on my domain ?

Originally posted by dtobias


When I first started registering domains, it was a mandatory requirement that you have two name servers already... the then-monopoly registrar (Network Solutions) didn't provide them for you. It used to be that some degree of technical cluefulness and preparedness were necessary to register a domain... those were the good-ol'-days. It actually still seems to be this way with some CCTLDs... a while back when I registered a .mx domain (Mexico), the registration form not only required that I supply a functioning DNS server, it actually did a query to make sure it was configured to resolve the new domain, before it would allow me to register it.

Anyway, if this guy was too clueless even to check his newly-registered domain in a browser for several months after registering it (the claim in the suit seems to be that he was unaware of Register.com's ads for months), he deserves what he got. It's fairly normal practice for registrars, Hosting providers, and the like to put default parking pages, often with ads, on domains and sites that aren't set up yet. It takes only a minimal degree of initiative to replace this with a page of the owner's own choosing. Anybody who can't or won't do that shouldn't gripe about the default page they get instead.

[bidawinner]

Originally posted by draqon
i think its pathetic that people have so much free time that they can whine about the ads that their domain is pointed to while they are not using it.

Hey dragon, I took your car for a spin last night..seeing as how YOU werent using it

[bidawinner]

Originally posted by jberryhill
This lawsuit strikes me as being simply goofy. Nobody puts a gun to anyone's head and says "Use our nameservers" when you register a domain name.

That's right they didnt use a gun they played a con instead, they simply offered their nameservers as default..being the good sammaritons they are !

They splattered their ads all over HIS domain..

[Rocket2Uranus]

Boy, I just don't know where I sit on this one. It seems to me they should at least make you aware that if you don't enter your own nameservers, their default ones will point to their advertising.

But is the lack of that notification illegal or just unethical?

[bidawinner]

OK, I feel btter

I dont really have a problem with it..as long as their intentions are CLEAR ..that if you dont set your nameservers ..WE will set the default to our nameservers and in doing so you are granting us permission to place our advertisemets.. The truth for a change instead of acting like weasels trying to steal a nickel out of your pocket

[jberryhill]

"Hey dragon, I took your car for a spin last night..seeing as how YOU werent using it "

He shouldn't have checked the box that said "Do you want us to keep the keys?" when he bought the car.

[Rocket2Uranus]

lol

Originally posted by jberryhill
"Hey dragon, I took your car for a spin last night..seeing as how YOU werent using it "

He shouldn't have checked the box that said "Do you want us to keep the keys?" when he bought the car.

[bidawinner]

Originally posted by jberryhill
"Hey dragon, I took your car for a spin last night..seeing as how YOU werent using it "

He shouldn't have checked the box that said "Do you want us to keep the keys?" when he bought the car.

Funny thing is..he didnt check any of the boxes, so we just assumed we had his permission

[Zoobar]

Registrars advertised this as "Free Domain Parking" to maintain server requirements. This is a frivolous suit.

The only ones who will make money in this dispute are the lawyers.

[DNS Kidd]

That goes without saying Zoo. I think the registrar is going to get nailed though. This is a big bad corporation squeezing millions of consumers, deep pockets, fertile ground for a big payoff.

I bet more than a few people dismissed the 15" (13 3/4" viewable area!) CRT suit also, and that cost the computer dealers millions to settle.