[cc-humanrights] NZ Domain Name Commission preliminary injunction against Domain Tools

Raphaël Beauregard-Lacroix rbeauregardlacroix at gmail.com
Sun Sep 23 21:45:26 UTC 2018

Dear all,

This case was mentioned during the call on Friday. I had not had the time
to read it thoroughly then but I have done so now I would like to highlight
a few points, to make sure that we interpret this case according to what it
actually rules on (and not what it could have, may in the future, or should
have ruled on)

In this case the injunction is granted on the basis of a "likely to
succeed" breach of contract, the contract in question being the terms of
use DNC sends or displays in connection with queries directed to .nz

The main point of the case is thus whether there was a contract between DT
and DNC. What made the case in DNC's favour is that DT repeatedly accessed
DNC's .nz registry over several years, and that there was thus indeed
enough "intention to be bound" by DNC's ToUs on DT's part. The precedent
the court uses here is the Registry.com case dating from 2004.

Under US law a preliminary injunction can be issued following a 4-pronged
test, one of these prongs being that there must be in the interest of the
public in the issuance of the injunction. DT asserted that not being able
to provide its service, as far as .nz is concerned, would harm the public.
It happens that .nz registrant info can be obtained from DNC directly, so
their point was already quite moot. Moreover, the privacy .nz seeks to
maintain is in the interest of their registrants. Hence, overall, there is
a public interest in issuing the injunction.

Also, DT being incorporated in Washington (the state, not DC), DNC reached
out to the federal court of their domicile in order to get the injunction.
Possibly more costly than staying in NZ, but certainly much more effective.

Finally, there will be a full decision on the merits later, and in the
meantime, who knows, maybe more injunctions coming up against DT. It is not
certain that DNC will win on the merits (i.e. whether there was indeed a
breach of contract) but we can conclude at this point that it is likely.

The case itself and the press release from DNC have been circulated already
on various lists (and maybe this one too), but I re-attach for convenience.

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