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Spamhaus Order on Domain Name
Sunday, October 22 2006 @ 08:58 AM EDT

There's an order on e360 Insight's Order to Show Cause asking why Spamhaus should not be held in contempt. The relief sought was suspension of the domain name by ICANN. The judge has denied that motion. Here's his order [PDF], which you can find on e360 Insight's page of documents from the case. I know from my email a lot of you care about this case, so I figured you'd want to know about this.

The judge based his ruling on the following:
The proposed order is limited to only the first remedy, suspension of the domain name by The Internet Corporation for Assigned Names and Numbers ("ICANN"), the entity responsible for coordinating unique identifiers used for Internet communications, or Tucows, Inc., the register through which Spamhaus obtained its domain name. Neither of these outfits are parties to this case. Though more circumscribed than the preceding request, this relief is still too broad to be warranted in this case. First, there has been no indication that ICANN or Tucows are not independent entitites, thus preventing a conclusion that either is acting in concert with Spamhaus to such a level that they could be brought within the ambit of Fed. R. Civ. P. 65(d). Though our ability to enforce an injunction is not necessarily coterminous with the rule, the limitations on its scope inform an exercise of our power to address contempt. See, e.g., Rockwell Graphics Systems, Inc. v. DEV Industries, Inc., 91 F.3 914, 920 (7th Cir. 1996). Second, the suspension would cut off all lawful online activities of Spamhaus via its existing domain name, not just those that are in contravention of this court's order. While we will not condone or tolerate noncompliance with a valid order of this court, neither will we impose a sanction that does not correspond to the gravity of the offending conduct.

Accordingly, the motion for a rule to show cause is denied without prejudice.

The order is dated October 19 and signed by U.S. District Court Judge Charles P. Kocoras. Spamhaus filed on October 13 a notice of appeal [PDF] in the Seventh Circuit, seeking review of the default judgment [PDF] against it. So, they are in the US court system now, for sure.

The order also mentions something that provides us a little insight into what is happening. e360's motion papers [PDF] asked "that the court order that accessing Defendant's technology within the United States to be improper and unlawful until such time as Defendant complies with the Order." It asked for per diem money damages against Spamhaus "for each day of Defendant's continued non-compliance", but it went further. If enforcement proved necessary, it wanted to be allowed to notify any ISPs using Spamhaus' technology "for the improper purposes and contrary to the Order" of the "improper nature of such continued use" and they also asked for leave to file an amended complaint in the action to name any "non-complying ISPs as additional defendants in this case, and further allowing Plaintiffs to seek an immediate TRO, without notice or bond, expedited discovery and an expedited hearing for a preliminary injunction against such non-complying ISP's." Sheesh. Talk about overplaying your hand.

The judge noticed something about the proposed order [PDF] e360 sent in. It didn't ask for this same relief. Normally, your memorandum in support will match the relief in any proposed order. Instead, this proposed order asked that "a suspension, or client hold, shall be placed on defendants website..." and that ICANN and Tucows be ordered to "suspend or place on client hold" the Spamhaus domain. Well, the judge is no dummy. He can read between the lines and figure out what it might mean if your moving papers and your proposed order don't match. And he just told e360 to forgeddaboud it. I'm sure it also didn't hurt that ICANN stood up and said it wasn't a party to the litigation and couldn't suspend any domain name, since it lacked the authority to do so. That's something I think e360s lawyers probably ought to have researched before asking for the relief they did.

That isn't the end of the story, because there will be an appeal of the original judgment, but it tells me that the picture is starting to come into focus.


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