PILLSBURY MADISON & SUTRO
RANDOLF J. RICE #083712
BARBARA R. SHUFRO #128857
MELISSA A. BURKE #171710
Ten Almaden Boulevard
San Jose, CA 95113-2226
Telephone: (408) 947-4000
Attorneys for Defendant
NETCOM ON-LINE COMMUNICATION SERVICES, INC.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
No. C95-20091 RMW
RELIGIOUS TECHNOLOGY CENTER, a DECLARATION OF RICK
California non-profit corporation; FRANCIS IN SUPPORT OF
and BRIDGE PUBLICATIONS, INC., a DEFENDANT NETCOM'S
California non-profit corporation, OPPOSITION TO PLAINTIFFS'
REQUEST FOR INJUNCTIVE
NETCOM ON-LINE COMMUNICATION Date: February 21, 1995
SERVICES, INC., a Delaware Time: 9:00 a.m..
corporation; DENNIS ERLICH, an Courtroom: 6
individual; and TOM KLEMESRUD, an Before the Honorable
individual, dba CLEARWOOD DATA Ronald Whyte
I, RICK FRANCIS, declare as follows:
1. I am the Vice President of Software Engineering for
defendant NETCOM On-Line Communication Services, Inc. ("NETCOM").
If called as a witness, I could and would testify competently as
2. NETCOM is an "access provider" to the Internet.
3. The Internet is a worldwide network of private and
public computer networks that link universities, government
agencies, commercial entities, individuals and other users having
disparate computer systems and networks, by means of a common
communications standard. The computer networks that comprise the
Internet communicate through an open, nonproprietary
communications protocol known as TCP/IP (Transmission Control
Protocol/Internet Protocol), which determines addressing
mechanisms and the routing of information. The Internet's
networks are connected in a variety of ways, including regular
phone lines, high speed dedicated leased lines, and fiber optic
links. Nonprofit consortiums, including the Commercial Internet
eXchange Association, provide central gateways where the networks
of commercial Internet access providers, telecommunications
companies and government-subsidized entities interconnect.
Policies regulating the Internet are made by the Internet Society
Operating Committee, a voluntary membership organization
dedicated to promoting networking technologies.
4. Use of the Internet has grown rapidly since the
commercialization of the Internet in the early 1990's. According
to International Data Corporation, there were approximately 16
million Internet users as of the end of 1993, with the number of
users expected to more than double to approximately 36 million by
the end of 1994.
5. Applications of the Internet include the following:
Electronic Mail: E-mail is an Internet application by which
an Internet user can exchange messages with any other user who
has an E-mail address. Messages can be sent almost instantly to
designated individuals or groups on a mailing list.
USENET Newsgroups: USENET is a network of thousands of
computers attached to the Internet that provide forums, or
newsgroups, which allow users to exchange information on a
variety of topics of shared interest. Internet users can seek or
provide information on diverse topics ranging from sports or
other hobbies to job opportunities to restaurant and travel
suggestions. USENET postings are distributed world-wide within a
matter of hours. There are tens of thousands of USENET
participants. A "newsgroup" is simply a way of categorizing the
information on USENET into various categories of interest.
World Wide Web: The World Wide Web is a browsing and
searching system comprised of thousands of computer servers,
referred to as home pages, each linked by a special
communications protocol called Hypertext Transport Protocol
(HTTP). This open protocol allows Internet users to view and
access text, graphics, video and audio resident on a home page or
to leap instantaneously to further or related information on the
same server or other home pages. This information, which can
include text, graphics, video or audio, is linked to other home
pages, allowing a user to jump instantly from one server to
another with information on a similar topic.
Databases and Public Domain Software: Many of the computers
connected to the Internet are repositories for vast amounts of
data, graphics, public domain software and other programs that
have been made available to the public. For example, with an
Internet connection, one can access commercial, educational and
government databases, newspapers, magazines, library card
catalogs, industry newsletters, weather updates, and other
Data and File Transfer: The Internet can be easily used to
move electronic files (including data, programs or text) from one
computer to another. This can be very useful for parties that
collaborate on data files where the parties are separated by
great distances. Unlike a fax machine, information transferred
over the Internet remains in digital format and does not need to
be re-entered by a receiving party; it can be manipulated and
then re-transmitted to other Internet users.
6. A number of companies have emerged to provide Internet
connectivity services. These access providers vary widely in the
number and type of subscribers, geographic coverage, and levels
and quality of Internet connectivity provided to subscribers.
Direct Internet access, which permits access to the full range of
the Internet's resources, requires a telecommunications network
configured to support the Internet Protocol such as SLIP (Serial
Line Interface Protocol) or PPP (Point to Point Protocol). Many
Universities offer access to the university community or to the
public. It is possible for experienced "hackers" to gain access
to the Internet through a number of means.
7. NETCOM is an Internet connectivity provider. As an
access provider, NETCOM provides its subscribers with a means of
connecting with the Internet. Using a computer equipped with a
modem or dedicated phone line, a NETCOM subscriber can obtain
access to the Internet's communication, information,
entertainment and computer resources, as well as its commercial
applications, for a monthly subscription fee. All of NETCOM's
Internet connectivity services utilize the Company's national
telecommunications network comprised of a backbone of leased high
speed dedicated data lines (T-3 and T-1 lines), computer software
and hardware, and local access points (called points of presence
or "POPs") in more than 30 major metropolitan areas. NETCOM's
POPs allow its subscribers in these metropolitan areas to access
the Internet through a local telephone call. NETCOM's
subscribers pay a monthly subscription fee and are entitled to
unlimited access time through NETCOM's Internet connection.
8. Many people access the internet through a Bulletin
Board Service (BBS). A BBS can range in size from a single
personal computer with few transmission lines, whose information
is only available to subscribers, to a CompuServe or Prodigy
content provider service.
9. Many Bulletin Board Services are participants in
USENET, a world-wide distribution chain for local postings.
NETCOM is a USENET participant, therefore, all NETCOM subscribers
have access to USENET. Postings on a particular BBS can be
accessed from any computer in the Internet through USENET, if
that BBS is a USENET participant. As described earlier, there
are tens of thousands of USENET participants on the Internet.
10. As an Internet connectivity provider, NETCOM provides
its customers with access to the Internet through the Company's
telecommunications network. While NETCOM provides full access to
the resources of the Internet, the Company is not involved in any
way in determining content of the information available on the
internet and the Company has no control over the information that
may be accessed. A number of the major on-line service
providers, such as CompuServe and America Online, Inc., utilize
closed host computer systems using proprietary communications
protocols and provide more limited access to the Internet. These
on-line services generally offer their subscribers a specified
slate of content, E-mail and other services. NETCOM does not
offer such content-based services. NETCOM functions as a
conduit to the information available on the Internet.
11. NETCOM merely provides its subscribers with the ability
to connect to the Internet and access its resources. NETCOM is
not involved in operating or maintaining any of the applications
of the Internet. NETCOM does maintain communication with its
subscribers about NETCOM's services through a newsgroup service,
and allows its subscribers to communicate in an unmoderated
fashion, but otherwise does not maintain or supervise any
12. NETCOM does not have the capability to monitor in
advance the content of messages transmitted by the Company's
subscribers over the Internet. In addition, the Company has no
editorial control over the content of the messages transmitted
over the Internet. The average amount of information carried
over the Internet through NETCOM is 150 megabytes or 150 Million
key strokes per day. It would be impossible to read and monitor
or exercise editorial control over the content of this amount of
13. Defendant Tom Klemesrud is a NETCOM subscriber. Mr.
Klemesrud has a "unix shell account" which allows him access to
900 newsgroups for his subscribers and propagate their
information to USENET. NETCOM has approximately 2000 customers
with similar accounts.
14. Through his BBS, Klemesrud allows his individual
subscribers to gain access to the Internet via the connection he
maintains with NETCOM. Defendant Dennis Erlich is apparently one
of Klemesrud's 500 reported subscribers. Erlich can "dial-up"
Klemesrud's computer and cause messages to be generated by
Klemesrud's computer which are posted to any number of newsgroup
categories on the USENET. Any material posted to a USENET
newsgroup will eventually end up being transmitted to everyone on
the USENET system, no matter where the message is posted from.
15. Because Erlich is not a direct subscriber to NETCOM,
NETCOM has no way to discretely terminate his access to the
Internet even if it wanted to. Rather, the only way for NETCOM
to cut off Erlich's access to the Internet is by dropping
Klemesrud as a subscriber and simultaneously terminating the
Internet access of all 500 of Klemesrud's individual subscribers.
As a result, all of these users of a bulletin board service will
be uniformly denied access to the Internet because of the alleged
misconduct of one.
Declared under penalty of perjury under the laws of the
State of California.
Executed this /17th/ day of February 1995, at San Jose,