TABLE OF CONTENTS

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

The relief sought by pgMedia is limited and narrowly tailored. Plaintiff asks only that defendant NSI add pgMedia’s TLDs to the root zone server file, something that experts agree, and NSI has repeatedly conceded, raises no technical or functional barriers. Plaintiff does not challenge the legality of NSI’s monopoly over domain name registration, does not seek access to NSI’s proprietary information or technology, and is not asking to alter the status quo of NSI’s monopoly on registrations in the well-known ".com," ".org" and ".net" TLDs. Nothing in this motion threatens either the technical stability of the global Internet or NSI’s status as the monopoly provider of domain name registrations in the Internet’s current TLDs. Plaintiff challenges only NSI’s use of its market power to refuse to deal with competitors, not the legality of NSI’s monopoly in the first instance.

The relief sought against NSI sounds squarely in the settled "essential facilities" doctrine of Section 2 of the Sherman Act, an antitrust rule in place since 1912 which prohibits a monopolist that controls a facility essential to competition from denying reasonable, nondiscriminatory access to competitors. See Section III(A), infra. There is no exception in either Section 2 or the essential facilities doctrine for a monopolist that, like NSI, controls an essential facility by virtue of a government contract. To the contrary (and even if the "cooperative agreement" gave defendant NSF the right to control the root servers, which it does not) no statute authorizes defendant NSF to immunize NSI’s conduct from antitrust liability. See Section III(B), infra.

Moreover, because the Internet is a worldwide medium, the United States government lacks jurisdiction under international law to unilaterally restrict the use of global Internet resources, such as the root server and generic TLDs. Even if the United States and NSF had such authority, however, it is clear that TLDs and Internet domain names are a form of speech protected by the First Amendment. To the extent that NSI’s own actions may somehow be immune from civil liability due to its relationship with defendant NSF, then the relief requested in this motion is fully supported by the settled line of precedent precluding the United States government from engaging in "prior restraint" of constitutionally protected expression. See Section IV, infra.

pgMedia is more than substantially likely to prevail on its claims under the Sherman Act and the First Amendment. Competition is impossible for domain registrations using alternative Internet TLDs unless they are first included in the "bottleneck" root zone file controlled by NSI. No express or implied antitrust immunity shields NSI’s abuse of its monopoly power to refuse to deal with pgMedia. There is no question, as defendant NSI itself concedes, that expansion of the root server file is technically feasible and that domain names constitute protected First Amendment speech. The irreparable injury that defendants’ actions will cause pgMedia, the first substantial competitor to NSI in the Internet domain registration market, is clear because the product pgMedia sells -- Internet domain name registrations in new TLDs -- is virtually worthless without the universal interconnectivity that makes the Internet the global, seamless network that it is. Plaintiff is therefore entitled to a preliminary injunction.

The facts relevant to this motion, as discussed in further detail in the accompanying declarations and the exhibits thereto, are neither complicated nor in material dispute.

The Internet is a global network of computers,2/ each of which has its own unique address, that operates under a common set of protocols allowing the computers and their users to interact and communicate with each other. Garrin Dec. ¶ 3.3/ Because an Internet address is a relatively long string of numbers ( e.g., 13.42.987.65) that is difficult to remember, Internet users rely on domain names, memorable and sometimes catchy words corresponding to these numbers, in order to use electronic mail ("e-mail") and to connect to Internet sites on the World Wide Web.4/ But to engage in Internet communications, these domain names need to be translated into the actual numeric addresses (known as "IP numbers" since they use the "Internet Protocol") that identify each computer on the Internet. "These IP numbers are converted into a more user-friendly, letter based format known as a ‘domain name’ by specialized computers called ‘domain name servers.’" Jews for Jesus v. Brodsky, 1998 WL 111676, *1 n.3 (D.N.J. Mar. 6, 1998). The root zone server effectively functions as the "traffic cop" for this translation process, providing a single, authoritative set of references used by all domain name servers worldwide to convert, or "resolve," any Internet domain name into the corresponding numeric IP address. Garrin. Dec. ¶ 7.

A domain name "consists of two parts: a host and a domain." Interstellar Starship Servs., Ltd. v. Epix, Inc., 983 F. Supp. 1331, 1335 (D. Or. 1997). Technically, the letters to the right of the "dot" are referred to as Top Level Domains ("TLDs"), while hosts -- computers with assigned IP numbers that are listed in specific TLD "registries" -- are known as "second-level domains." Garrin. Dec. ¶ 6. For the domain name "technologylaw.com," therefore, ".com" is the TLD and "technologylaw" is the second-level domain. TLDs are known as "top level" domains because they comprise the highest-order name space available on the Internet. Second-level domains, as well as third-level domains (such as "home.netscape.com"), are subsidiary to TLDs in the hierarchy of the Internet’s Domain Name System ("DNS").

There can be only one root server (or one set of consistent, coordinated root servers) for the Internet to achieve universal resolvability and for Internet users worldwide to enjoy the benefit of seamless interconnectivity. Garrin Dec. ¶ 7. NSI concedes that "[f]or the Internet to be connected and to function, there can be only one ‘dot’ and one set of root servers." NSI White Paper at 9. This single point of central authority, however, also creates a potential for abuse. "To a large extent, whoever controls the DNS -- and the root server, the holy temple in which all names are housed -- also controls the Internet." D. Diamond, Whose Internet Is It, Anyway?, Wired, April 1998, at 172. As noted below, NSI controls and administers the "holy temple" of the root server

Defendant NSF has a long relationship with the Internet. NSF supported development of the Internet Protocol and funded development in the mid-1980s of NSFNet, one of the high-speed computer networks that evolved into the "network of networks" that is now called the Internet. Digital Tornado at 13. Defendant NSI, a corporation listed on the NASDAQ exchange with a market valuation exceeding $60 million, operates the ".com," ".net," ".org" and ".edu" TLD registries pursuant to a contract, referred to as a "cooperative agreement" (the "Cooperative Agreement"), with NSF. This agreement, originally executed in 1993, was later amended and extended through September 1998. Only NSI is permitted to register second-level domains in these TLDs.

There is no question that defendant NSI has control of the root server and is responsible for the addition of all new TLDs on the Internet worldwide. NSI’s Chief Executive Officer has conceded, in contemporaneous antitrust litigation in the United States District Court for the District of Columbia, that:

The Company [NSI] has two business segments -- Domain Name Registration Services, its core business, and Intra-Net Consulting Services. The Company’s responsibilities with respect to the Internet Domain Name System ("DNS") include: (a) management of the Root.Zone of the Internet and the primary, or "A," root server; (b) addition of all new top level domains (TLDs) on the Internet worldwide.

NSI Battitsta Dec. ¶ 7 (Manishin Dec. Exh. 2).7/ There is also no question that NSF does not regulate NSI. Defendant NSF testified in the Washington, D.C. litigation that "NSF does not regulate NSI."8/ The NSI Battitsta Declaration in that case makes no claim that NSF controls NSI’s management of the root zone file or the addition of new TLDs. And according to NSI’s filings with the Securities and Exchange Commission, NSI "is not currently subject to direct regulation other than federal and state regulation applicable to businesses generally."9/ This is in complete accord with the universally recognized view that no single entity or government controls or regulates the Internet.10/

Nothing in the Cooperative Agreement provides that NSF can direct NSI whether, when or in what number to add new TLDs to the root. The Cooperative Agreement expressly provides that, except for "imposition of a user based fee structure," such changes in the DNS system may be made by NSI without the approval or ratification of NSF.11/ NSF has explained that the Cooperative Agreement requires NSI to "follow the policy guidance of a non-governmental body, the Internet Engineering Task Force (‘IETF’) . . . in consultation with the Internet Assigned Numbers Authority (‘IANA’), another non-governmental entity."12/ NSF Mitchell Dec. ¶ 5. But there is no language in the Cooperative Agreement that requires NSI to follow the dictates of NSF in maintaining or administering the root servers. Indeed, the Cooperative Agreement provides flatly that "[t]o the extent NSF does not reserve specific responsibility . . . all such responsibilities remain with the awardee." Cooperative Agreement at § I, Art. 6.A. There is no "specific" reservation of responsibility for managing the root zone file or for adding additional TLDs in the Cooperative Agreement.

In order to compete in the market for Internet domain name registrations, however, pgMedia requires that these TLDs be listed in the root server controlled by NSI, because without access to the root, pgMedia’s second-level domains cannot be resolved by other Internet users. Garrin Dec. ¶ 16. There is no technical constraint on expansion of the root server file to include pgMedia’s TLDs. Defendant NSI has conceded publicly that "[t]here is no technical reason why the number of worldwide TLDs needs to be limited. . . . There can be as many TLDs are there are potential second- and third-level domains."13/

The reason why new TLDs are technically unlimited is simple. The root zone file is merely a text (ASCII) file of no more than 500KB in size, smaller than most popular computer applications, such as Microsoft Word, and far smaller than the current size of the name server files for current TLDs. For instance, the ".com" TLD presently has a name server file that comprises nearly two million second-level domains. Garrin Dec. ¶ 14. As NSI boasts, "[t]he current operation of the domain name registration system has demonstrated an ability to handle incredible growth,"14/ and "[d]omains are equally scalable at all levels of the DNS."15/ Accordingly, because these TLD name servers have proven easily capable of "scaling" to a huge size without any technical or functional degradation whatsoever, there is no question that the root server can support at least as many entries. Garrin Dec. ¶ 14.

Rebuffed in its efforts to have IANA sanction its refusal to deal with pgMedia, NSI then changed its tune. First, NSI explained in an April 17, 1997 public report that it favored "enhanced competition" in domain name registrations. NSI White Paper at 1. Nonetheless, NSI still refused to add pgMedia’s TLDs to the root server. Second, NSI for the first time claimed that the government, specifically NSF, is responsible for determining whether to add new TLDs to the root of the Internet. On June 10, 1997, NSI then wrote to NSF, purporting to seek NSF’s concurrence that NSI could accept applications to include new TLDs in the root zone file. NSI June 10, 1997 Letter, at 2 (Manishin Dec. Exh. 12)[confidential per stipulation; filed only under seal]. A "staff associate" at NSF replied that it was "premature" for NSI to add new TLDs until the government concluded a policy analysis of DNS, and directed NSI to "take NO action to create additional TLDs or to add any other new TLDs to the Internet root zone file." NSF June 25, 1997 Letter, at 1 (Manishin Dec. Exh. 13). NSF cited no statutory authority in this so-called "directive" to NSI, but rather indicated that "until NSF, in consultation with other U.S. government agencies, has completed its deliberations in this area," NSF was not "able to provide further guidance."16/

NSI’s refusal to add pgMedia’s TLDs to the root file also has caused adverse competitive effects in the market for Internet domain name registrations. Today, any firm desiring to compete with NSI must rely on NSI to register second-level domains in the ".com" and other generic TLDs, i.e., by "reselling" NSI’s registration services. This has severely limited price competition for domain names by making NSI’s fees a "floor" for all registrations, and by preventing other firms from offering different and improved services.20/ Plaintiff pgMedia, on the other hand, has pioneered technical innovations in domain registration offered commercially for nearly two years. For example, plaintiff was the first to provide on-line, real-time domain name registrations, during a period when NSI’s own registrations required nearly four weeks. Garrin Dec. ¶ 15.

Significantly, instead of adding plaintiff’s TLDs to the root server, and thus facing new competition, NSI has instead "partnered" with other private firms to offer country code TLDs as new "generic" TLDs. For instance, TABNet, one of NSI’s "Premier Gold Partners,"21/ offers second-level registrations in the ".cc" (Cocos Keeling Islands) and ".to" (Kingdom of Tonga) domains -- without regard to nationality -- to U.S. consumers, on the following basis:

There are well over one and a half million names currently registered in .COM. Most desirable names are already taken.

To relieve the chronic shortage of names in the .COM, .ORG, and .NET domains, TABNet is now making available the .CC and .TO top-level domain for web sites and email. Unlike alternative domain names, the .CC and .TO names are now fully operational in all name servers worldwide, exactly like the .COM names.

Manishin Dec. Exh. 18 (emphasis supplied). In short, NSI and its partners are now using lack of universal resolvability of "alternative domains" like plaintiff’s to commercialize new TLDs, for profit and in direct contradiction to NSF’s purported 1997 "directive" not to alter the root servers, while denying pgMedia the same right to compete.

The preliminary relief requested by plaintiff in this motion is narrowly tailored and extremely limited. Plaintiff asks that this Court take action to (1) prohibit defendant NSI from refusing to deal with pgMedia; (2) prohibit defendants NSI and NSF from continuing to refuse to add any of plaintiff pgMedia’s TLDs to the root zone server; and (3) require that NSI include pgMedia’s TLDs in the root zone server on such reasonable and non-discriminatory terms as the parties shall agree within 30 days, subject to the Court’s continuing jurisdiction. This relief is necessary to prevent irreparable injury to pgMedia from its more than one-year exclusion from the Internet domain name registration market as a result of defendant NSI’s unlawful use of it monopoly control of the essential facility of the Internet’s "root." However, the relief sought by pgMedia will have no effect on operation of the Internet or on NSI’s existing monopoly over registrations under the Cooperative Agreement. NSI and its partners will still have exclusive rights to register ".com" second-level domains, and all users of the Internet worldwide will still be able to reach any TLD included in the root servers. Such relief also will not affect the government’s plans to establish a policy framework for the DNS system, except that the government may not restrict TLDs and thus exclude pgMedia from the market.

The standard for issuing a preliminary injunction in this Circuit is well-established. There must be a showing of "(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Jackson Diary, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2nd Cir. 1979)(per curiam). A plaintiff may also be required to make a "substantial" showing of likelihood of success where "(i) an injunction will alter rather than maintain the status quo, or (ii) an injunction will provide the movant with substantially all the relief sought and that relief cannot be undone even if the defendant prevails at a trial on the merits." Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27 (2nd Cir. 1995). Under these standards, plaintiff is plainly entitled to a preliminary injunction.

"The Second Circuit has consistently held that ‘perhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered.’" Ortho Diagnostic Systems, Inc. v. Abbott Labs., Inc., 822 F. Supp. 145, 150 (S.D.N.Y. 1993). (quoting Bell & Howell: Mamiya Co. v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir. 1983)).

NSI’s refusal to allow pgMedia access to the root server has already caused pgMedia substantial harm and, undoubtedly, will cause irreparable injury to pgMedia prior to the commencement of a trial. The denial of access prevents pgMedia from offering a viable commercial service because the essence of the Internet, universal interconnectivity, is unavailable for registrants of plaintiff’s second-level domains. So long as NSI refuses to add pgMedia’s TLDs to the root, pgMedia cannot compete in the Internet domain name registration market and will continue to suffer destruction of its business and good will. Jack Kahn Music Co. v. Baldwin Piano and Organ Co., 604 F.2d 755, 762-63 (2d Cir. 1979); Jessup v. American Kennel Club, 862 F. Supp. 1122 (S.D.N.Y. 1994).

A "substantial likelihood of success on the merits" means that, as a practical matter, a movant’s "cause is considerably more likely to succeed than to fail." Abdul Wali v. Coughlin, 745 F.2d 1015, 1026 (2d Cir. 1985). On the virtually undisputed facts of this case, as set forth above and in the accompanying declarations, there is no question that plaintiff is "substantially likely" to prevail on its Section 2 "essential facilities" claim against defendant NSI.

In order to establish liability under Section 2 of the Sherman Act, 15 U.S.C. § 2, pgMedia must demonstrate only (1) monopoly control of an essential facility by NSI; (2) the impracticability of duplicating that essential facility; (3) a denial of use of the essential facility by NSI; and (4) "the feasibility of providing the facility." Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 569 (2d Cir. 1990); Kramer v. Pollock-Krasner Found., 890 F. Supp. 250, 257 (S.D.N.Y.1995). Each of these elements is clear on the facts of record, and NSI has no plausible immunity or antitrust defense sanctioning its denial of access to root zone server. Congress has not accorded antitrust immunity to NSI, NSF has no statutory authority to immunize private conduct from antitrust scrutiny, and the existence of the Cooperative Agreement, a contract between a government agency and NSI, is legally irrelevant as a defense to pgMedia’s essential facilities claim.

Section 2 makes unlawful the acquisition, maintenance or use of monopoly power by anticompetitive or exclusionary means. E.g., Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985). The "essential facilities" or "bottleneck" doctrine, a type of monopolization claim, holds that a defendant may not use its monopoly power to deny competitors reasonable and non-discriminatory to a facility essential to competition. Twin Labs., 900 F. 2d at 569; MCI Communications Corp,. v. American Tel. & Tel. Co., 708 F.2d 1081, 1132-33 (7th Cir.). cert. denied, 464 U.S. 891 (1983).

This litigation is a classic essential facilities case. NSI enjoys a monopoly in the Internet domain name registration market for all "generic" TLDs and, under any measure of market power (market share, barriers to entry, etc.), holds monopoly power, i.e., the power to "control prices or exclude competition." United States v. E.I. du Pont de Nemours & Co., 384 U.S. 563, 570-71 (1966). NSI’s monopoly is government-authorized, resulting from its exclusive contract with NSF to register domain names in the ".com," ".net." ".org" and ".edu" TLDs. NSI accordingly concedes that it physically controls the root zone file and is responsible for the "addition of all new top level domains (TLDs) on the Internet worldwide." NSI Battista Dec. ¶ 7.

This root file is without doubt an essential facility. It is undisputed that there can be only on "root" for the Internet. NSI White Paper at 9. Essential facilities are those that are not merely helpful to a competitor, but rather are "vital to the claimant’s competitive viability." Cyber Promotions, Inc. v. America Online, Inc. 948 F. Supp. 456 (E.D. Pa 1996). The root file is vital to competition in "alternative" TLDs because without access to the root server, Internet communication cannot take place. The root zone file is thus the prototypical essential facility, absolutely indispensable for anyone seeking to compete in the Internet domain name registration market.

The seminal cases under the essential facilities doctrine illustrate how the NSI-controlled root server lies at the heart of competitive provision of DNS services on the global Internet. In United States v. Terminal R.R. Assn., 224 U.S. 383 (1912), the Supreme Court held that the defendant railroads, who controlled the only feasible terminal for cross-city railroad traffic, had to permit competing railroads access to that terminal. More recently, in MCI Communications v. AT&T, 708 F. 2d 1081 (7th Cir.), cert. denied, 464 U.S. 891 (1983), the 7th Circuit concluded that because AT&T’s former "Bell System" controlled the local communications facilities that were the only means for competitors to provide long-distance phone service, AT&T was required to grant MCI access to those facilities.

This point is uncontested. pgMedia asked that its TLDs be added to the root in March 1997, and to date NSI has not listed a single one of these TLDs in the root zone file.

Access to an essential facility must be "feasible." Twin Labs., 900 F.2d at 569. Again, this point is not disputed. First, as noted above, NSI and others have repeatedly and publicly admitted that there is no technical constraint on the addition of new TLDs. See also Garrin Dec. ¶ 14. Expansion of the root server to include pgMedia’s TLDs would have absolutely no effect on the functioning of existing TLDs or on the interconnectivity of the Internet. Id. Consequently, although some have voiced policy concerns if "too many" TLDs are added to the root, even if valid such policies are irrelevant as a legal matter (see Mueller Dec. ¶¶ 16-17) because there is no question that access to this NSI-controlled essential facility is feasible.

Implied antitrust immunity is found only where there is a "pervasive regulatory scheme," where an antitrust exemption is "necessary to make the [statute] work," and "even then only to the minimum extent necessary." Strobl v. New York Mercantile Exchange, 768 F.2d 22, 26 (2d Cir.), cert. denied, 474 U.S. 1006 (1985). This predicate for a claim of implied immunity is absent in this case because, as both NSF and NSI admit, "NSF does not regulate NSI." NSF Mitchell Dec. ¶ 3; NSI S-1 at 12 (NSI not subject to regulation). NSF is chartered to "foster and support access by the research and education communities to computer networks." 42 U.S.C. § 1862(g). But the agency has no statutory authority to regulate either NSI in specific or the Internet in general. Indeed, Congress has elsewhere declared that it is the "policy of the United States . . . to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services unfettered by Federal or state regulation." 47 U.S.C. § 230(b)(2).

The Cooperative Agreement does nothing to shield NSI’s conduct from antitrust liability. First, the plain terms of the contract grant NSI commercial discretion in determining whether and when to add new TLDs to the root server, as the Cooperative Agreement expressly contemplates that while a "user based fee structure" would require "the express direction/approval" of NSF, other "changes in the registration services, [such as] the use of alternate registration/numbering systems or schemes," would not. Supra, pp.6-7. Furthermore, where "NSF does not reserve specific responsibility," the agreement provides that "all such responsibilities" remain with NSI. Id. There is no reservation of "specific responsibility" for NSF to direct, control, approve or restrict expansion of TLDs on the Internet’s root server system.

Second, NSF’s purported 1997 "directive" to NSI under is legally irrelevant. "[G]overnment contracting officers do not have the power to grant immunity from the Sherman Act." Otter Tail Power Co. v. United States, 410 U.S. 366, 378-79 (1973); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 225-27 (1940)("Though employees of the government may have known of these programs and winked at them or tacitly approved them, no immunity would thereby have been obtained."). Thus, "[i]t is no defense that federal officials know of, approved or induced the challenged conduct when such conduct was not undertaken pursuant to statutory authority." 2 Antitrust Law Developments (Fourth) 1132 (1997)(collecting cases).

The settled nature of this rule cannot be debated. In Otter Tail, one of the leading essential facilities cases decided by the Supreme Court, an electric power company with monopoly control over the facilities necessary to "wheel" electricity was required to provide wheeling access to potential competitors, 410 U.S. at 368, notwithstanding the fact that its contract with a federal agency included restrictions against the practice. Id. at 374-75. And in Socony-Vacuum, the Supreme Court held that a resale price maintenance scheme was unlawful under the antitrust laws even though it was approved by federal officials and was "consistent with the general objectives and ends sought to be obtained" by the agency’s statute. 310 U.S. at 227-28. In the absence at least of statutory power to compel private conduct, the review and even express approval of a federal agency is thus "irrelevant to the legality under the Sherman Act." Id.; Williams Elec. Co. v. Honneywell, Inc., 772 F. Supp. 1225, 1231 (N.D. Fla. 1991)(specific regulations giving federal purchasing officials authority to require contractors to engage in challenged practices).

Although NSF has asserted the power to control the Internet root server (and by implication the power to compel NSI’s private conduct), no such authority is granted by the National Science Act. And although the Cooperative Agreement has been amended six times since it was first executed in 1993, nothing therein provides that NSI must follow NSF’s "directives" with respect to management or administration of the root. Even if that were the case, the facts show that NSF does not in fact control NSI’s administration of the root server. As discussed in detail above, NSI has added more than 10 TLDs since NSF’s purported June 1997 "directive" that NSF "take NO action" with respect to the root, and is currently using these TLDs for commercial purposes while boasting that "alternative domains" are unworkable. Supra, pp.11-12. Thus, NSF’s clarification that its June 1997 "request" to NSI is actually a "directive" is precatory at best. Defendants "cannot avoid liability for their actions because requested by come public official to do so. . . . Only Congress can lift the restrictions which find expression in the Sherman Act." Eugene Dietzgen Corp. v. FTC, 142 F.2d 321, 329 (7th Cir.), cert. denied, 323 U.S. 730 (1944); Consumers Union v. Rogers, 352 F. Supp. 1319, 1323 (D.D.C. 1973)(President cannot grant antitrust immunity without statutory authority).

If NSI is immune from antitrust liability by reason of defendant NSF’s "directive," then the government’s restriction on Internet TLDs must accord with the First Amendment. The Internet is "a unique and wholly new medium of worldwide human communication" that receives heightened protection under the First Amendment. Reno v. ACLU, 117 S. Ct. 2329, 2334 (1997). By directing NSI not to add pgMedia’s TLDs to the root server, NSF effected a prior restraint on speech in clear violation of settled First Amendment doctrine.

pgMedia’s new TLDs open the Internet to an unlimited source of personalized, unique second-level domains. These domain names constitute protected expression because they are not merely tools for resolving IP numbers, but convey communicative messages, including political views. Mueller Dec. ¶¶ 10-12. NSI itself asserts a First Amendment right as to domain names. Id. ¶ 10. And this Court has held that domain names are entitled to constitutional protection. Planned Parenthood of America v. Bucci, 1997 U.S. Dist. LEXIS 3338, *35-36 (S.D.N.Y. 1997) (constitutional bar to trademark liability for domain name used as "communicative message").

Communicative messages have "an expressive purpose such as commentary, comedy, parody, news reporting or criticism." United We Stand America v. United We Stand, America New York, 128 F.3d 86 (2d Cir. 1997). The TLDs and second-level domain names registered by pgMedia include core political speech, in such domains as "for.president" and "for.mayor," satirical phrases such as "microsoft.free. zone," and personal expression such as "beyond.hope." Garrin Dec. ¶ 9; see Mueller Dec. ¶ 10. The evident communicative content of these domains must therefore be accorded the highest measure of constitutional protection.

For all the foregoing reasons, this Court should grant plaintiff’s motion and enter a preliminary injunction precluding defendants NSI and NSF from refusing to deal with pgMedia and from refusing to add pgMedia TLDs to the Internet’s root zone server.

Dated: May 14, 1998