First, even thoroughly prepared trial lawyers and judges, and as a lawyer I feel confident saying this, may not really understand the technology behind domain name disputes they are litigating.

Heh, some domain lawyers I know will attest to that.

I think you raise an interesting point. So much so, in fact, that I wrote my own blog post about it this past summer on the Dynamic Discourse – http://dynamicnetworkservices.com/journal/DomainNameOwnership. In my post I make pretty clear that I agree with the Virginia Supreme Court’s conclusion regarding the matter. A domain name registrant has rights in his or her (or its) domain registration contract, but nothing more. The courts really shouldn’t be treating domain names as pieces of virtual dirt. However, its easy to understand why courts have come to the alternative conclusion.

First, even thoroughly prepared trial lawyers and judges, and as a lawyer I feel confident saying this, may not really understand the technology behind domain name disputes they are litigating. Given that they might not understand the technology, it is easy to imagine why they might get confused when determining which theory of rights is appropriate to apply in the case they are confronted with.

Second, disputes over domain names are really rooted (pardon the pun) in what is almost uniformly referred to as the ‘cybersquatting’ phenomenon. Given this lexicographical choice, the argument regarding the nature of the right at issue was largely over before it began. The term ‘cybersquatting’ assumes without examination or debate that a domain name is something which can be ‘squatted’ upon, or in other words, that a domain name is akin to tangible property (e.g., a house or a plot of land). As such, hidden or missed from the very beginning was that a domain name should not be analogized to a house or a piece of dirt, but rather a telephone number.

In any event, thanks Michael for getting this discussion going in this forum. As a side note, I am currently writing an article on the subject for the Duke Law and Technology Review and will post a link to it back here when it gets published.

I agree this is a healthy discussion. It is good to see differences of opinion welcomed here. I am happy to praticipate, but I refrain from taking a side until the members have established a clearer preference. I think that the problem is that though there are many times that having property rights would benefit domainers. There are also cases like this one in KY where the registrants are arguing that domains are not property.

What everyone does agree about is that registrants have rights, whether those rights rise to property rights or not, and ICA should help protect those rights. Our hands are not tied while this discussion goes forward.

Given the .com and .net Registry is in Virginia, and their Supreme Court’s ruling on Umbro, their decision practically takes “precedence” over others on this specific thing. Although the Kentucky court ruled this case as such, it’s up to the other registrars if they want to comply with it or not.

That’s why I said good luck to Kentucky on how to enforce that order. I won’t be surprised if the other registrars finally obey it, although they can always comply with another court order for such filed either in their respective jurisdictions or in Virginia.

Besides, people dispute other people’s rights every other day. What’s really a question is what to do if/when that happens, and how far one’s willing to go.

BTW, MB posted an update at his blog:

http://www.thedomains.com/2008/10/23/gaming-group-asks-appeals-court-to-throw-out-kentucky-domain-seziure-order/

This Kentucky decision practically says domain names are property for the purpose of seizure under their gambling law. Yet, other states’ courts define them as so-called property for their respective cases, and Michael Collins’ bits from their amicus briefs give further answers to this.

Like Michael Castello’s subtle warning here, for the last 15 years I’ve been warning my friends, until they were gagging me everytime I spoke, that in the near future our freedoms were going to be removed by laws created in order to enforce political and financial agendas, and to displace power from the people and give them to the few. Forget the “morality” bullsh*t argument the lawmakers make when they passed such “laws”, look behind the real intent of why the law is created.

I try to start every analysis of a situation with a “root” issue. Start with that issue, and watch “slippery slope” sub-issues become another “root” issue, still connected with the original root issue.

In the Kentucky case regarding these 141 gambling-poker domains, the root issue is first “FREEDOM”.

Second issue is “FREEDOM OF EXPRESSION” and “FREEDOM OF SPEECH”

Third issue is “FREEDOM TO THE PURSUIT OF HAPPINESS”

From that point, the sub-issues begin to materialize, depending on the “hidden intent” behind the lawmakers. Laws against porn, laws against drug use, laws based on enforcing a certain vision of “morality”, then laws to inhibit USA citizens from exercising their basic…. here it comes, back to the ROOT ISSUE: Freedoms.

Way down on this slippery slope is this Kentucky based case where an idiot politician creates a huge juggernaut of potential loss of rights for “freedom of speech” > “internet communications. This isn’t one freakish case out of the blue, it isn’t that freaky at all. It started because none of us except a few, almost 2 decades ago, saw that “freedom” in America was turning into a convenient catchphrase. Ultimately that catchphrase “freedom” ended up being tossed around by the current President in fascist-style nationalistic speeches to endorse a preemptive war that enriches his cronies and his family everyday.

What I’m saying isn’t some lame conspiracy nutjob warning. It is exactly where we’ve come in the last 50 years or more, starting with McCarthyism in the 1950′s, the Drug War in the 70′s, and then government spying on its citizens without due process in the 90′s forward.

For this Kentucky judge to rule HE has power to allow a STATE in the USA to stop his constituent’s freedom of speech and expression by controlling domain names owned by people not within his jurisdiction is more ominous than just how it will affect the domain industry.

Some of my Republican “hard on crime” friends, who argued that we’d always be protected as Americans by “checks and balances” in our government back in the 90′s, are now looking at me like I am some sort of fortune-teller with a crystal ball. They’re freaked out.

All it took was to look beyond the facade of why many laws are enacted. I’ve been watching it come in many forms for the last 15 years.

And the new “spy on Americans” laws, meant to stop “terrorism”, are laughingly being with glee by law enforcement to push beyond those borders into easier “gonna getchya for something” techniques .

Now, circle this argument around to the 141 domains “shockingly” being locked down by a judge in some backwoods state that LOVES to —– gamble on horse-racing, the State of Kentucky’s pride.

Back in the Sixties, Janis Joplin sang a few words in a verse “freedom is just another word for nothing left to lose” and ironically, the lyrics also include “Kentucky coal mines…” Look it up.

I’m an old schooler, and I bet you that all the other old schoolers will agree with me that never before have we seen this country so far from the dream of being “The Land of the Free”.

This is only the beginning. Question is now, what are we going to do, and how are we going to do it?

Also ICANN has mentioned that where a domain is taken the owner should not lose financially, if that domainer has paid large sums for the domain or any amount over straight out reg that acknowledges “rights”.

The fact that a valuable secondary market exists indicates rights.

However, domains don’t have the obligations of other intellectual properties. In fact the owners have not contributed anything that society should award them rights for (content yes, domain no).

I think domains are property, but a weak form, the legal system is probably loath to allowing domains higher status as that would open other “instruments” to the claims of property.

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