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06|17|2008 02:11 am EDT

Whois Does Not Establish Domain Name Ownership

by Adam Strong in Categories: Legal Issues

Domain Name News was forwarded a copy of a 2007 Federal Court decision that seems to be a wake up call to after-market domain name buyers to be wary of who they are buying domain names from. The California Federal Court decision should make it crystal clear to would-be domain name purchasers that true ownership of a domain name is not based on what is in the whois records.

The courts decision, which can be seen in entirety here, notes that a domain name whois record is not equivalent to title of ownership. The court makes no mention of what would be equivalent for a domain name, but it can be assumed that proof of purchase or contractual records with the registry would suffice. The judgement states :

“Defendants’ arguments rest on changes to the Whois records and the registration contact information for the domain name. Such records, however, are not the equivalent of statutorily-created title systems. They are privately maintained systems for providing contact information and keeping records for domain names.

and then later:

Changes to the registration information do not constitute a transfer of ownership”

In the decision, domainer Greg Ricks was stripped of the domain name Express.com . According to court documents the domain name whois record was changed slightly in 2004. Ricks claims he purchased the domain name through Escrow.com for $150,000. He claims there was no reason to doubt that he was dealing with anyone other than the owner of the domain. Court documents have found that the money ended up in a bank account in Lithuania. It’s safe to assume that the domain name was hijacked from Express Media Group and then sold to Ricks by a third party. Ricks was found guilty of conversion and ordered to transfer the domain name to Express Media Group.

The Internet Library comments by attorney Martin Samson on the case provide some valuable insight to the decision. It is also interesting to note in Samson’s article that he mentions “The Ninth Circuit has held that a domain name is property capable of being converted.”

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12 Comments

David J Castello

June 17, 2008 @ 2:48 am EDT

May be time for Title Insurance when buying domain names.

Drew

June 17, 2008 @ 5:31 am EDT

Time for Registrars to offer “Domain ownership certificates” with the name of the account owner and a list of domains held in that account and fully paid for?

David

June 17, 2008 @ 7:15 am EDT

Time for Registrars to offer

jn

June 17, 2008 @ 2:50 pm EDT

As a former employee of a relatively large registrar, I thought it was generally understood that WHOIS records are not authoritative. This comes into play especially with TLDs where the contact information is only stored in the registrars’ own databases and each registrar maintains their own WHOIS server. You can find whois records on registrar A’s whois server for domains that actually were transferred to regisrar B. This is common and you have to make sure you are pulling a WHOIS record from the correct WHOIS server (domaintools and other public whois web sites usually handle this automatically).

I think title insurance and also ownership certificates would be great (and profitable) products for a registrar or aftermarket service to offer.

While I am not familiar with the case above and all its details, it seems like escrow.com dropped the ball and their ownership verification process is not as rock solid as they might want you to believe.

Having used escrow.com in the past I was somewhat alarmed at how easy it would be to fool their systems and even manual verifications.

Escrow.com – if you are reading this feel free to reach out to me for consulting services on how you could make the process ROCK solid – my rates are relatively low :) I have over 8 years of operations experience at a large registrar, designing many of their registrar systems.

Charles Carreon

June 17, 2008 @ 4:56 pm EDT

The law is slowly emerging from the fog that was created by years of spurious litigation in which the dangerous notion that “domains are not personal property” interfered with the proper operation of Adam Smith’s “invisible hand.” Now we just need to realize that property laws are needed for cyber-real-estate, just as they are for good old acreage. Someday, we’ll even have cyber-mortgages, and bubbles to go with them. What a bright future!

Steve M

June 17, 2008 @ 10:29 pm EDT

jn makes an important point. Time to be extra careful when using escrow.com and other such domain “escrow” companies.

Especially with higher-value sales, it may be best for us all to actually speak with any “buyers” before transferring names to anyone we don’t already know and trust.

E-mail contact alone is not sufficient.

Adam Strong

June 17, 2008 @ 11:10 pm EDT

Is it the escrow agents job/business to verify the ownership of a domain name ?
Also it is fairly straight forward to have a contract written and do due diligence to verify ownership . . . and still use Escrow.com, Moniker or any other provider as the escrow agent. All they are doing is making sure the domain and money end up in the right hands.

Paul W

June 18, 2008 @ 9:45 pm EDT

“Is it the escrow agents job/business to verify the ownership of a domain name?”

escrow.com explicitly lists “ability to confirm domain ownership directly with the registrar” as one of their buyer benefits. In fact, part of escrow.com’s whole pitch is that they are “like having an insurance policy that protects you against fraud, deception and irresponsibility.”

Miguel Salcido

June 20, 2008 @ 2:20 pm EDT

So what is failed to mention here is a very critical question! How does one transfer ownership of a domain to someone else????? Obviously simply giving them access to the domain account to change whois info is not enough.

john andrews

June 21, 2008 @ 3:40 am EDT

Next time I’m only dealing direct. No funny business. Come alone. Bring the domain in a brown paper bag, and I’ll bring plain, unmarked bills, for a hand-off.

Seriously.. this raises so many more questions than answers, no?

Frank Michlick

June 21, 2008 @ 9:44 am EDT

Miguel, there’s no clear answer to that – in any case, a written contract seems to be the best method to have proof of a transfer of ownership. However this doesn’t mean that you actually have verified ownership beforehand.

And btw, I am not a lawyer and this is not professional advice ;-)

But what about ICANN? It can oblige accredited registrars to let at least changing whois record, the wors, they just let you play (changing contact, admin infos) which is 0 protection

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