MySpace stripped of myspace.co.uk domain victory
Nominet elections feel the hand of Rupert Murdoch
UPDATED An independent appeals panel has overturned a heavily-criticised decision to hand control of the myspace.co.uk domain to Rupert Murdoch's Fox Interactive Media.
Nominet's Dispute Resolution Service (DRS), had ruled in favour of MySpace in January, despite the domain having been registered by a small British ISP six years before the US social network was founded.
Barring any possible further High Court action by MySpace accusing TWS of "passing off", the judgement, released on Thursday last week and passed to The Register today, means control of the address remains with Stockport's Total Web Solutions (TWS).
TWS managing director Paul Fallon said: "We refused to be bullied by one of the largest media organisations in the world. This has been a very stressful case for a legitimate medium sized ISP to have to take on – but we had to defend our reputation and to stand up for what was right."
A MySpace representative did not return a call requesting comment.
TWS originally registered myspace.co.uk in August 1997 to provide its clients with a cheap and easy-to-use homepage and email address in the early days of the web. It also registered bigspace.co.uk for the same purpose. 18 TWS customers still use @myspace.co.uk email addresses.
As domains and web design became cheaper, the services became redundant, and the domain was "parked" in or before July 2004 with Sedo, a company that targets advertising links on unused domains. The following year, with the explosion of popularity of social networking, and MySpace in particular, the Sedo algorithm began serving TWS' domain with ads for services such as "MySpace Friend Adder".
The panel rejected MySpace's claim that it had rights to the domain because it is wholly descriptive of its business. The appeal then turned on two key issues to determine whether TWS' registration and use of myspace.co.uk was "abusive".
Firstly, when was the use switched to ads based on the MySpace name? The Murdoch lawyers argued that TWS had begun exploiting it when Fox acquired the site for $580m in a blaze of publicity in July 2005. The panel said it had "grave suspicions" this may have been the case, but it "simply has no way of knowing", and "cannot do other than resolve this uncertainty in favour of the Respondent [TWS]".
Read on for the politics behind the battle...
Secondly, the panel considered the crucial (and more broadly relevant) question of how much control TWS had over what appeared on the parking site. It accepted that TWS had not interfered with the content of myspace.co.uk, including when ads relating to social networking began to appear. Rather, they had been generated and updated by Sedo's software, so it was natural that MySpace's rapid rise be reflected.
The judgement said: "The registration of domain names is still a first-come, first-served system and the panel is reluctant to place any duty on a registrant, who has merely had the good fortune (or maybe ill-fortune) to register a domain in good faith, which subsequently, through no fault of his own, provided he does nothing to actively exploit his position [appeals panel emphasis]."
TWS has been represented in the battle by solicitor Jim Davies, a veteran of domain name disputes. He is standing in this year's highly controversial elections to the Nominet board as one of the three candidates the current executive has told members not to vote for.
Part of Davies' platform is a call to spin the DRS complaints procedure out of Nominet. During the independent appeal process over myspace.co.uk, Davies accused Nominet of having improper contact with MySpace and then covering it up. TWS has now made a formal complaint against the registry.
TWS had called for the case to be dropped when it believed MySpace had paid its share of the independent panel's fee late. It later emerged that a cheque had been sent on time, but a mix up in Nominet meant it had not been recorded properly.
However, as part of the response to his call for dismissal, Davies was sent emails between Nominet and MySpace's lawyers Field Fisher Waterhouse that showed registry officials had encouraged MySpace's lawyers to ensure they met the deadline. Davies alleges that this was against the rules, but is more angry that his questions over the action were repeatedly ignored by Nominet, as shown in emails seen by The Register.
Davies said today: "I think what is worse is the cover up rather than the original email – but neither is ideal."
Davies accused Nominet of scaremongering over the imminent election, which could see the current board's control loosened. "They are trying to scare the members into thinking that I am part of some sort of takeover plot," he said. "That's not true - I just want to see better and more accountable structures put in place."
Neither Nominet nor its press representatives returned our calls today.
The Nominet elections close tomorrow. You can read the full myspace.co.uk appeal judgement here (pdf). ®
Emily Taylor, Nominet's director of legal and policy got in touch following the publication of this story to strenuously deny any allegation of a cover-up. "In a cover up you don't normally share all the correspondence with an independent third party, which is what we have done," she said.
"It is very disappointing that Mr Davies continues to make this allegation, which we take very seriously." She said that the adjudicator in the January decision on myspace.co.uk had considered Davies' charges of procedural irregularities and found no wrongdoing.
The complaint by TWS will be considered according to the normal Nominet process.