more used to good morning your honor is in may it please the court brian goldman fur domain tools and i'd like to reserve four minutes for about with i may preliminary injunction is aren't normally issued in contract disputes and this case should not have been an exception injunctions like this are rare even after judgment because the presumptive remedy for breach of contract is money damages so i'd like to start there with the lack of irreparable harm because if there hasn't been an adequate showing of harm then the court doesn't need to go any further as it said in center for food safety vs fell sack the n c l bore the burden here of putting on concrete evidence that it was a likely to suffer irreparable harm absent immediate relief but all d n c al has advanced is a hypothesis of reputational harm one that isn't backed by the record and doesn't even make sense because the only who is information that domain tools has is information that was public because d n c i'll put it online for everyone to see for over a decade for free after registries in the world is information that is public and that's because historically for decades the who is system has been understood as a critical of the set of public information that allows the internet to operate openly and when this was available over to anyone there's no password requirement there's no sign up requirement or anything of the like anyone had the ability to access this information over port forty three d n c l has imposed various terms of service over the years we have a couple of them in the record here we don't have the ones that were in place when domain tools st began accessing the dot and see who is server in two thousand and six that was before d n c i'll even existed so we that term certainly didn't look like this back then but the those terms are similar to terms that that define the standard norms in this industry which say that who is information is public and can be used for identifying purposes and for cyber security purposes the score of misuse of who is information has historically been solicitations and that's why that's called out both the means of collecting information for commercial solicitations and the act of commercial solicitations are called out in in the terms that's also reflected in what and fifty two and the r one hundred and fifty five says your information will be available to all as a matter of public record that means law enforcement can use it but commercial solicitors won't be able to use it similarly that was the fact pattern in register dot com versus very the harm that verio was committing was sending out commercial solicitations to new domain name registrants who had used register dot com and that was causing irritation and people to think that register dot com was sending them spam and it's not a coincidence that you see commercial solicitations continuing to pop up because that has been the restriction that has understood to apply in this context the problem with the way that d n c l is reading is its terms is that it would bar the very purpose that who has information has served for decades in in this field and under washington law terms have to be understood in context but let me just take a step back here and say obviously we're here on a policeman arion junction and ford b n c l to get specific performance at the end of that case there would need to be quote no doubt is the standard under washington law cruise and hedges are the best cases there no doubt that that a contract was formed and b that the before d m c al has even been put to its proof there certainly isn't the clear entitle me to relief on the facts and the law that garcia vs google requires for an injunction like this and the same is true with respect to irreparable harm what adidas establishes most recently is that there must be concrete evidence of harm there cannot be pure speculation or hypothesis there has to be actual tangible evidence and i think it's helpful to look at disney vs witing joel and adidas as two examples of what suffices and what doesn't suffice with respect to irreparable harm what disney versus video says is you can draw one inferential stat from the evidence that's in the record so there it was that disney had received complaints from its legitimate licensees about the fact that there were unlicensed services also streaming disney content and it was one very simple logical inferential step to say you've received complaints about unlicensed services what about the harm to the registrants the people who's in for who the whole direct markets st st just by way of clarification there is no allegation that registrants here are receiving commercial solicitations and the like on account of their information being out there at all let alone on account of who's the plane if you're d n c i was not trying to assert rd party standing on behalf of the registrants i don't think the registrants themselves would have a cause of action against domain tools so any allegation about harm to regist ants can be relevant only when viewed through the lens of does that affect the reputation of d n c apple and that's why they offer this rather controller does affect the reputation of the n c l to the extent that they're not able to the record leap one is that they want to say that the advent of the earth but zero in response to those complaints was a critical piece of bolstering d n c ells reputation i think even that is unfounded because they offer only a small handful of complaints and the actual solution they offered in the earth is much less privacy protective than what the customers were even asking for so there isn't reason to think that bolstered their reputation but even if we spot them that  is saying that domain tools has undermined the promise of the earth bow and this reputational boost that the earth has provided but the district court expressly found that i had made no such promise  no promise with respect to prior already public information that that would somehow be clawed back or that public disclosure would be negated d n c ells own statements to registrants show that as well so those statements to registrants st promise only that new query results will be protected and will be public record even now that's one hundred and fifty two dollars which is the post statement  complied with that but it says nothing to registrants about clawing back information that's already public and we know that registrants understood that that information couldn't be clawed back because even as they were asking for greater privacy protections they said we don't want our information out there in the st place because once it's posted online there is no getting it back and it isn't that the up of bull harm you can correct it went from a sense out there and the reputation made whole but my point your honor is that the only information that we're talking about here is information that was already made public it was made to the because the only information we have is information that was already broadcast to the public so this you're taking it and you're it's made public by one person searching but when your company goes in they take massive amounts  at a time put it it could go on another registry and then disseminated which the harm is different than the one person going in and taking you know information on one person versus thousands of people well i disagree that it's different for two reasons st is that we are not the only party out there that collects who is information this is historically how cyber security professionals across the world have operated to protect to protect banks to protect retail institutions that are trying to protect customers social security numbers and credit card numbers and so we are one of many services that has this information similarly the again this information was broadcast for all to see we don't know how many people have downloaded any amount of it and what protects your argument because everybody does it than the to ok well pieces of information that exists in the anonymous expanse of the internet and it provides a critical tool and there are examples in the record i think are two thousand and five is a really good example of how the existence of this information has allowed intellectual property owners and companies and law enforcement to crack the case and both solve cyber crimes but i think even more importantly to stop cyber attacks before they even happen by recognizing that there are threats originating from particular domains and intervening to bar access before a hack can occur or even be completed and let me just emphasize that  pardon me domain tools has very close relationships with hundreds of the top level domains around the world our work depends on our ability to access this information when we are cut off which has almost never happened but as the n c l did here we of course respect that and we can no longer gather that information but we have every reason to work closely with the top level domains that manage this information and we do and the reason that this whole ecosystem works and the reason that d n c al is the outlier that has taken action against this is because it has been understood for decades that this is the one critical public piece of internet identifying new concept that they have shut or import forty three to information that they already sent to us for over a decade in response to who is queries if i could reserve my last minute m c terms of use prohibit what the record shows is that domain tools surreptitiously downloaded ninety four percent ninety four percent of d n c ells database it created a shadow database in clear violation of the terms of use and then it used that database to do things that d n c terms of use flatly prohibit and it's here today because it wants to review me doing those things even though we had knows the terms of use flatly prohibited and so this raises a very fundamental question which is who controls the use of the registrant out for dot and z new zealand domains is it d n c l a new zealand non profit corporation that maintains the data that has protection of registrants interests in the registrant data as its mission and that flatly prohibits the creation of a secondary database or is it domain tools a for profit focusing on is the fact that they were using the database that was improperly created in the st place to publish historical data and that d n c yells terms of use specifically and flatly prohibit the publication of historical data and there's good reasons for that because once you build up a secondary database and you use it to publish historical or non current data essentially you'd then become the controller of the interests of the registrants right because you can prevent for example all did here which is they developed an individual register privacy auction that allowed people to say you know what i don't want my data to become public and yet because the domain tools databases out there that's secondary databases out there they can undermine that by publishing historical data that people have now said we want to be private and it's just last month found that is simply sabotaging what dns feels mission wise and so i think it's principally that the injunction was targeted at the publication i think you're judged i think did not order them to take down the information even though the maintenance of the secondary registry is also against the terms of use and so i i think principally is directed at what they do with their data as opposed to their making use of the data because we did not ask them at the end of the day we initially on the motion asked them to take the data out of their database but at the end of the day the request was to money well it's interesting your honor i think that your honor has characterized what mr goldman said correctly but i don't think what mr goldman said is actually backed up by the full scope of his argument and here's what i mean by that  definitely said that the n c l had not established irreparable harm but i did not actually hear him identify how the adverse effects on the n c l could be remedied by money damages and i'll explain in a minute how that is so but let's start with how night looked at this judge last night was aware because of the extensive evidence that was presented to the declaration of mr kerry that new zealand had gone through an extensive consultative process as to what sort of who is da should be disclosed when it should be disclosed and in what circumstances and to whom it should be disclosed that lasted over twenty months starting in october of two thousand and fifteen public meetings throughout new zealand cities and so we know that through that community of dot n z domains whose data is managed by the n c l we know that through that community the privacy and security of that data is important when judge last minute concluded was given that given that importance given the the core the core importance of that to this community if he can't enforce its terms of use and can't maintain control over its data that is likely to eversley affect its ability to obtain and retain registries and by the way let me pause for a moment before i continue that answer it's a long answer i know but but i want to pause and point out that all of the terms of use here are focused on allowing  yele to continue to be the manager of the data and not let somebody else take it over what do i mean by that the terms of use prevent the secondary registry right prevent somebody from coming in and taking it and building their own registry prevent somebody from using historical data publishing historical data that means that we manage it we only have the correct data and that's what we supply prevent somebody from publishing in bulk prevent people essentially from doing those things that resident apartment registrants which is essentially equivalent to saying injury to goodwill goodwill historically has been the category of damages or loss or injury under contract that is deemed not in damages there's a long line of court cases from this court holding that including in particular the adidas vs schedulers case i believe its author discussed in a video in june and so those are circumstances that constitute irreparable injury and i might add since mr goldman referenced the video in your case that was a case where loss of control and remember here we're talking about loss of control of the data loss of control with central to what was found to be the irreparable injury because there it was a question of losing control over distribution of copyrighted material from disney and what their trial court found in this court affirmed and i believe judge greer that you were on that panel was that interference with the basic right to control and through what channels this content was released was irreparable injury so to hear interference with the basic right to control what happens with the data that has been entrusted to the n c l is irreparable injury now it is true as mr goldman says that we cannot point you to a specific customer that's been lost of specific registrant that says i'm not going to be doing business with you but that misses the point because the requirement is not to show that we have already suffered injury the requirement is to show that we are likely to suffer injury if there has not been an injunction and the evidence of the evidence on that your honor is largely consists of what i just described your honor in terms of the consultative process and the importance of these issues to d n c l and the fact that the fact that if we lose control over our data we no longer can make assurances to our registrants as we historically have that we control the data we can determine how it's released and those assurances are implemented and effectuated through our terms of use which ensure that the data remains in our control so once you take that control away that as if it angel and other cases have held that is the sort of thing that amounts to irreparable injury and i would add your honor that there was also i think imbedded within judges as an opinion and equally important irreparable injury and that is the damage to  mission this is another consideration that this court has found to constitute rise to of versus whiting a case where there was found your reparable injury based upon a damage to a nonprofit organization like the n c l to which central organizational mission and there are district courts across the circuit that have a clue applied soul to find damage to organizational mission as a sufficient irreparable injury and here here we have judged as an explicitly finding that that domain tools conduct here was sabotaging the efforts to implement a new device for protection of privacy or registrant data undermining undermining one of the central missions because d n c always mission is to protect regist rights it's implemented if you look at section twenty one point two of the operations and procedures that's it your q e d to it's undermining its mission which is described there and i quote to protect the security of the data in the register from unauthorized or abusive use that is one of the purposes for which this nonprofit organization exists and control of registrant data is central to that mission because if you lose control you no longer are able deliver on that promise to your constituency and that's why the terms of use focus on preventing rd party control through downloads were secondary registers and absent an injunction absent an injunction what will happen is that domain tools because it now has a ninety five percent of the data domain tools will get to make that judgment make the call make the decisions as to what happens to the data that was intrusted not to demean tools but to watch and i think it's important understand your honour's because domain tools hoax itself in this mantle of protecting internet security i think it's important understand when you think about how it undermines this mission how it got this data because it didn't come through the front door and i believe your honor dr mark has i think you asked mr goldman a question about you know could they go and get the data in both it didn't knock on the front door and say d n c l we you give us all the dot in the z data it didn't do that it didn't do that because it knew that wasn't permissible and that d n c you know would not give up control over the data that was central to its mission so what it did and this is that if you look at basically two places in the record either to fifty they actually took steps to circumvent controls that the n c l put on access to port forty three that were put there specifically to prevent what they did they circumvented controls by creating a distributed network so we wouldn't recognize their repeated searches and they use those repeated searches not to query the network or partly not to query that who is service to get information is specific domains but to call what that information and create their own database they weren't responding to customer needs what mr clancy says in his declaration he calls it our collection system so essentially they were out harvesting data surreptitiously knowing that it wasn't something we would voluntarily give and in doing so they were undermining a central mission of dnd c l so reversing the injunction of the owners will not simply harm d n c ells mission it will essentially that mission it will make it so it cannot be accomplished because we will no longer be able to call the shots as to what happens to the data that registrants have been trusted to us now that's essentially what i had to say on a reputable farm but i do want to make a couple of points with respect to one of the things that mr goldman repeatedly said and i believe that the way he expressed it to the court was to say that this information isn't worthy of protection because i think he used the word widely available it had been widely available for decades that's not quite true to me widely available means that it's published you go to a website you scroll through the website here's the information that's not true what is true is that this information was available for look up on the who is service so if you as as your honor pointed out you know the point of this is to allow people to check into domains find out whether a domain is available find out if there's an issue with the doma so you could go to a service you could plug in a domain name you could get who is data back privately it was not publicly available in the sense that it was published to the world and there is no evidence in the record suggesting that of the seven hundred thousand roughly domains on the dot in the z domain there's no evidence on the record that all of those have been subject to search in fact the likelihood is a relatively small fraction ambien and the high likelihood is that in this shadow database that d c apartment that domain tools has created there are likely domains and registering data in there that have never seen the light of day except for them harvesting it to create their own shadow database that they never were supposed to have in the st place and fifty six when he says we had controls in place to try and prevent this sort of ball harvesting but what our investigation showed and d n c old department domain tools did not deny this what our investigation showed was that domain tools use what's called a distributed network which means that they used a network of computers all around the world to it to colin so that you don't see a pattern so that you don't see them doing this harvesting because they know it's wrong and that's why it is it is ironic that they now cloak themselves in the mantle of needing to be in front of the court to protect internet security when what they did was nothing more than what i had who would do it to get into the system and so that that is a deep irony of this case your honor i only have a couple of seconds left so i would simply ask at this point that the court affirm the preliminary injunction that was entered with good reason by judge laughing thank you  respect to the cross court shoe in the this case which is some concrete evidence other than an employee of the plaintiff's own say so that connects the alleged harm to the conduct of the defendant so what would they have had to show here it would be some evidence that dot n z registrants either left the domain or were even mad at d n c after the implementation of the urco on account of the has implemented so the comments that they point to expressing displeasure with d n c al are all before that program was implemented and but their whole premise the hook of their argument is that they say the earth promised regist would protect the privacy of this data including going back in time to when it had previously been made public they say at page fifty four dollars of their brief that that's the reason why they didn't why it's not fair to say that they delayed in bringing the suit evidence that was found insufficient with respect to the cross court shoe in adidas that was found insufficient in her breed and i think tightness light shop which is an unpublished case offers the most vivid illustration of that where there was a wonderful fury that had been spun out by the plaintiff but no i actual evidence to back up why that harm was likely and d n c l made the choice to come to court on a complaint without taking the time to build a record but this information three is the front door this is what has historically been used to get this information and that's why there is no access restriction on it with respect to mr ramage a suggestion of somehow surreptitiously evading that we have been absolutely forthright about how we collect information we do it in a way so as not to clog the channels of port forty three by proceeding to obtain that information slowly we are upfront about that with as we are with hundreds of registrars around pardon me registries around the world who are very aware of how this information all fits together we ask the court to reverse think both counsel who are interesting