more on ICANN NOT ordered by Illinois court to suspend spamhaus.org

[David Farber <dave () farber net>]

Begin forwarded message:

From: Jonathan Zittrain <zittrain () law harvard edu>
Date: October 8, 2006 5:05:04 PM EDT
To: dave () farber net
Subject: more on ICANN NOT ordered by Illinois court to suspend  
spamhaus.org

Dave and IP,

I don't see cause for panic on the Spamhaus lawsuit.

1/ The subject line of this thread is puzzling, since the document at  
<http://www.spamhaus.org/archive/legal/e360/kocoras_order_6_10.pdf>  
is merely a proposed order, no doubt put forward by the plaintiff.   
The plaintiff is welcome to file proposed paperwork with the judge,  
but that doesn't make it an order until the judge signs it.

2/ An alert judge would not sign this document.  There are specific  
state practices (and often statutes) about how default judgments are  
handled, and about how any sort of judgment translates into anything  
that binds a party outside of the case.  For example, banks can  
sometimes be ministerially ordered to attach wages or seize accounts  
of people who owe money in lawsuits, or land can be auctioned.  But  
something like a domain name is a far cry from a bank account or a  
house, and the registrar would have plenty to say about what to do  
with what is more a contractual relationship than a sum of money or a  
piece of real property.

3/ If the judge isn't alert and just signs, the registrar would have  
plenty of interventions to make if it chose -- and indeed it may not  
even be under the jurisdiction of the court.

There's some chance this could turn out to be more than mildly  
interesting, but I don't see any reason to think it's some grave  
event for cyberspace.  ...JZ



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