Judge Holds Domain Names are Not Property
Date: Tuesday August 14 2001, @03:57AM
Topic: Uniform Dispute Resolution Policy (UDRP)

Following a growing trend in US courts, a judge of the Supreme Court of the State of New York ( which is actually the court of first instance, not the highest court in the state) has held that a registrant's rights in a domain name sound in contract, not property. Whether the registrant's interest in a domain name is classed as contractual or property has relevance to a number of questions that interest lawyers, such as whether a government deprivation would be a ‘taking' of property or merely a due process issue.

Although the NY decision seems fair enough, it and other such holdings create a slight but not insurmountable incongruity with the recent Anti-Cybersquatting Consumer Protection Act (ACPA), which creates an in rem jurisdiction over domain names. Previously, in rem jurisdiction had been limited to cases where "property" was in the jurisdiction, but its owner wasn't, or wasn't locatable. While it would be simpler to say domain names were property since ACPA treats them as such, the courts could also read ACPA to create a "property-like" right over non-property. This, however, would strengthen the hand of those who say that ACPA extends US jurisdiction to some transactions lacking the "minimum contacts" with the US required by the US Constitution -- contacts that would be supplied by the presence of "property" but not necessarily by a single domain name registration transaction.

Were that argument, which is currently being litigated, to prevail, ACAP wouldn't apply to non-US domain registrants whose only contact with the US was the registration of the domain name, or the holding of the name in a US-based registry.

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Re: Judge Holds Domain Names are Not Property
by dtobias (dan@tobias.name) on Tuesday August 14 2001, @05:06AM (#1819)
User #2967 Info | http://domains.dan.info/

The judge made the right decision here. Domain names are not, strictly speaking, property of the registrants -- the fact that you must renew them indicates that they are really being rented rather than owned. You, as a registrant, gain some contractual rights over the name in question, but not true "ownership". In fact, RFC 1591, the closest thing that exists to an "official" statement of what the creators of the domain name system intended, has the rather idealistic statement: "Concerns about "rights" and "ownership" of domains are inappropriate. It is appropriate to be concerned about "responsibilities" and "service" to the community." This sentiment came from the notion that the domain namespace was a resource for the community, not property to be speculated in, which unfortunately has a quaintly archaic ring these days.

At any rate, the issue in that particular case was that somebody was suing a registrar for putting the registrar's default page, with ads for the registrar and its sponsors, on the website reachable by the domain registered by the plaintiff, which he claimed was a violation of his ownership rights to the domain. This is a really silly suit, since if he had paid the slightest attention to where the domain was pointed when he registered it, and subsequently, he could have easily made it go to anywhere else he desired; the registrar page was merely the default, not a mandatory page. It seems he's asking the court to punish the registrar for the registrant's own technical ignorance.

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Re: Judge Holds Domain Names are Not Property
by ANNODOMINI2000 (reversethis-{KU.OC.OOHAY} {ta} {D0002DA}) on Monday May 13 2002, @02:09AM (#6274)
User #3359 Info | http://www.ad2000d.co.uk/
This is really stupid.

Something OWNED (ie, PURCHASED) by somebody is THEIR PROPERTY.

Some of these Judges and Panelists need their heads examining!
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Re: Judge Holds Domain Names are Not Property
by ANNODOMINI2000 (reversethis-{KU.OC.OOHAY} {ta} {D0002DA}) on Tuesday June 04 2002, @11:28PM (#6838)
User #3359 Info | http://www.ad2000d.co.uk/
Has the judge never heard of INTELLECTUAL P-R-O-P-E-R-T-Y or domain-name real estate...?

Does he even know what the word D-O-M-A-I-N means...??

Land. Estate. Possession. Property.

That Judge should clearly be either disbarred or made to eat his words!
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  • This article comes from ICANNWatch
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