RE: [gnso-raa-b] Is there any revision to the US supreme court ruling of 2000 that "Internet domain names are a new form of intellectual property"?

[Phil Corwin <pcorwin@xxxxxxxxxxxxxxxxxx>]

To be clear: There has been no US Supreme Court decision on the legal status of 
domains.

If there ever is, it will apply to domains over which US courts have 
jurisdiction -- that is, those in which the registrar (e.g., Network Solutions) 
or registry operator (e.g., VeriSign) are located within the US. It would also 
be applicable to .us domains, since that is the ccTLD for the US. 

As for domains that are ccTLDs of other nations, or where the registrar or 
registry operator is located outside the US. while laws such as the ACPA may 
assert in rem jurisdiction and one might get a US court to issue a judgment, 
enforcing it would be quite another matter.

As ccTLDs continue to constitute a growing portion of total domains, and when 
new gTLDs crop up with the registry operator outside the US, the jurisdiction 
of US courts over the total domain space will decrease.

As for internal ICANN administrative remedies such as UDRP, it applies to all 
gTLDs regardless of primary locus but is not applicable to any ccTLD (although 
some ccTLDs have, on their own, adopted UDRP-like processes to deal with 
alleged rights infringement).



Philip S. Corwin
Partner
Butera & Andrews
1301 Pennsylvania Ave., NW
Suite 500
Washington, DC 20004
202-347-6875 (office)
202-347-6876 (fax)
202-255-6172 (cell)
"Luck is the residue of design." -- Branch Rickey
________________________________________
From: owner-gnso-raa-b@xxxxxxxxx [owner-gnso-raa-b@xxxxxxxxx] on behalf of 
Michele Neylon :: Blacknight [michele@xxxxxxxxxxxxx]
Sent: Friday, August 20, 2010 7:43 AM
To: Sivasubramanian M
Cc: Hammock, Statton; <gnso-raa-b@xxxxxxxxx>
Subject: Re: [gnso-raa-b] Is there any revision to the US supreme court ruling 
of 2000 that "Internet domain names are a new form of intellectual property"?

On 20 Aug 2010, at 12:14, Sivasubramanian M wrote:

> Dear Statton Hammock,
>
> My message earlier and my response now aren't as much about Network 
> Solutions' practices, as much as it is about Authority on Domain Names 
> (Whether it is ICANN, the Registry or Registrar) and about the Jurisdiction 
> of the US Supreme Court (whether it is binding on individual users and 
> businesses all over the world etc. )
>
> My response to various points in this conversation is as below:
>
> On Fri, Aug 20, 2010 at 2:46 AM, Hammock, Statton 
> <shammock@xxxxxxxxxxxxxxxxxxxx> wrote:
> Siva,
>
>
> I’ll try to answer your question.
>
>
> A domain name is not property of any sort – it is a contract right that does 
> not exist separate and apart from the services performed by a registrar.
>
>
> Is it implied here that a domain name is a 'contract right' that exists in 
> relation to the 'services performed by a Registrar' ?  That should make a 
> Registrar some sort of an authority over a domain name. Isn't a Registrar's 
> contact with a Registrant entirely an agreement for INTERMEDIARY services? A 
> Registrar is between ICANN/the Registry and the Domain Registrant, in effect, 
> between a Domain Name and the Domain Registrant. A Registrar does not have 
> legitimacy over a domain name and does not have any implicit proprietary, 
> authoritarian or any other form of derived rights over the domain name for 
> which he merely provides intermediary registration services.  I am puzzled by 
> your statement that implies 'services performed by a registrar' as according 
> a Registrar right to concede contractual rights to a Registrant over the 
> domain name. Any actual contract over a domain name can only be between ICANN 
> and the Registrant, or between the Registry and the Registrant. Is this point!
  missed by the Registrars?


Um no

In the gTLD world the contract is between registrant and registrar. The 
registry cannot have any direct contact with the registrant under normal 
circumstances

in cctlds it's a totally different matter

>
> Wornow v. Register.com, Inc., 2004 N.Y. Slip. Op. 04776 (App. Div., June 8, 
> 2004) (citing Network Solutions, Inc. v. Umbro Int’l, Inc., 259 Va. 759, 770, 
> 529 S.E.2d 80, 86 (2000)).  Other court decisions have held that a domain 
> name is simply an address.
>
>
> These and other Court rulings cited are US lower or Supreme Court rulings. 
> Are these rulings rulings over 'Domain names' or about .com and .US names?

.us is a cctld


>  Even .com is a gTLD name in use worldwide, not merely in the US, so how does 
> US courts rule for the whole world?

I don't think anyone said that they did .. unless you're saying that they did?


> I am a Registrant for isolatednetwork.com

Which is registered via an American registrar, so you're going to be bound by 
US law ..


> and I want to challenge the Domain Names Authority by arguing that this name 
> is a) my property, or, at least,  b) a time bound right for me with the right 
> of first refusal. I, as the Registrant and a citizen of another country am 
> prone to argue that I am not bound by the rulings of the US Supreme Court. 
> Even if it is argued that Verisign is the Registry for .com over which US 
> Supreme Court has jurisdiction  and by virtue of the fact that my name is 
> registered by Verisign, I am bound by this ruling, why am I bound by the same 
> ruling for .asia or .music or .in or .tel? What if I ask my law firm to 
> challenge the .in Registry in India and the .asia registry in an Asian court 
> and manage to get a ruling that my .in and .asia names are my intellectual 
> properties over which I have a time-bound right and the right of first 
> refusal? Then we would be faced with a situation where .com names are not 
> intellectual property, but .in and .asia and .tel names are.  Or we have a 
> situation wh!
 ere all domain names by individuals and corporations under US Supreme Court 
Jurisdiction not considered intellectual property, whereas all domain names by 
individuals and corporations under some non-US jurisdictions considered 
intellectual property.
>
> Any ruling about all domain names all over the world should come from an 
> International Court.

No - you're completely missing what the guys have been talking about. You asked 
about some US rulings - they answered. You've now made a leap from one specific 
set of case law to some insane global thing - which makes zero sense to me


> I am uncomfortable with the jurisdiction of the US Supreme Court over my 
> domain names as a Registrant from another country,

So register domains with a registrar in your jurisdiction

> and I would be equally or more resistant to US Supreme Court's 
> extra-territorial jurisdiction if I were a Reseller or a Registrar in any 
> country other than the USA.

Don't mix the two up

A registrar is a contracted party - a reseller could be anything ..

We are a registrar in Ireland. While our legal counsel will examine US case law 
we will always look to Irish and EU law, as we are an Irish company .. 
Obviously if were sued in the US by a US registrant / registry we'd have to 
deal with it there I guess, but that hasn't happened yet.

However a US based registrar CANNOT ignore the US courts as they ARE binding on 
them

>
>
> It is valueless apart from the content or goodwill to which it is attached.  
> A domain name that is not a trademark entails only contract, not property 
> rights.  Thus, a domain name registration is the product of a contract for 
> services between the registrar and registrant.
>
>
> 'Domain name registration is a product of a contract for services between the 
> registrar and the registrant'?  The contract with the Registrar is a contract 
> for intermediary services, in such a manner that the Registrar has NO 
> authority over the domain name.
>
> Dorer v. Arel, 60 F. Supp. 2d 558, 561 (E.D. Va. 1999).  When the contract 
> between a registrar and registrant expires or terminates, the domain name 
> ceases to exist.
>
>
> Property, on the other hand, does not cease to exist merely because services 
> associated with the property come to an end.
>
>
>             Because a domain name is a product of a contract for services, 
> the disposition of the domain name is a function of the terms of the 
> contract.  For instance, Network Solutions’ current Service Agreement with 
> registrants provides:
>
> 10. TERMINATION.
>
> a. By You. You may terminate this Agreement upon at least thirty (30) days 
> written notice to Network Solutions for any reason.
>
> b. By Us. We may terminate this Agreement or any part of the Network 
> Solutions services at any time in the event you breach any obligation 
> hereunder, fail to respond within ten (10) calendar days to an inquiry from 
> us concerning the accuracy or completeness of the information referred to in 
> Section 4 of this Agreement, if we determine in our sole discretion that you 
> have violated the Network Solutions Acceptable Use Policy, which is located 
> on our Website at http://www.networksolutions.com/legal/aup.jsp and is 
> incorporated herein and made part of this Agreement by reference, or upon 
> thirty (30) days prior written notice if we terminate or significantly alter 
> a product or service offering.
>
>
> A Registrar who has issues with a Registrant may terminate his contract for 
> services to the Registrant, but a clause like this shouldn't accord the 
> Registrar any power to take away the domain name from the Registrant. At 
> worst, a Registry may have the right to recall a domain name from a 
> Registrant, not a Registrar. Even for a Registry to recall a domain name, 
> there must be a due process with ample room for the Registrant to challenge.


Again - disagree

You're ignoring all sorts of abuses, scams, frauds etc.,

Applying your logic we'd have to extend all sorts of crazy "due process" to 
scumbags who abuse the domain name system

And you're also forgetting, as registrants tend to do, that registrars end up 
spending a stupid amount of money dealing with all sorts of crazy spurious 
claims from 3rd parties in relation to domain names. (We were recently told 
that we had to block all instances of $brand from being registered in domain 
names OR used in email addresses! )



>
>
> Thus, Network Solutions has the power and authority to terminate its 
> registration services, under some circumstances, as provided in its Service 
> Agreement.
>
>
> The language from the Network Solutions agreement you cited is more than ten 
> years old and is very much out of date.
>
>
> Thank you again for the response. As I have stated earlier this isn't about 
> Network Solutions in particular.
>
> Sivasubramanian M
>
>
> I hope this is helpful.
>
>
>  Statton Hammock
>  Sr. Director, Law, Policy & Business Affairs
>
> <image001.gif>
>
> P 703-668-5515  M 703-624-5031 www.networksolutions.com
>
>
>
> From: owner-gnso-raa-b@xxxxxxxxx [mailto:owner-gnso-raa-b@xxxxxxxxx] On 
> Behalf Of Sivasubramanian M
> Sent: Thursday, August 19, 2010 4:34 PM
> To: gnso-raa-b@xxxxxxxxx
> Subject: [gnso-raa-b] Is there any revision to the US supreme court ruling of 
> 2000 that "Internet domain names are a new form of intellectual property"?
>
>
> Hello
>
>
> There is a very old report at page http://news.cnet.com/2010-1071-281311.html 
> that says that in the year 2000, the US supreme court reversed a 1999 circuit 
> court ruling that "Internet domain names are a new form of intellectual 
> property".
>
>
> 1)  Is there any revision on this US supreme court ruling that domain names 
> are not intellectual property ? Is ICANN's position on ownership of a domain 
> name entirely governed by the US Supreme Court decision of 2000 or later, if 
> revised?
>
>
> 2) This report also says that Network Solutions revised its Domain 
> Registration Agreement (based on the Supreme Court ruling ??? ) in Nov 1999 
> which gave the company sweeping rights such as. The agreement states:
>
>
> • NSI may terminate "domain name registration services" if the registrant 
> uses them for "any improper purpose, as determined in our sole discretion." 
> The term "improper" is left open for NSI to interpret.
>
>
> Ten years later, in 2010, is this power to terminate a domain name with the 
> Registrar, Registry or with ICANN ?
>
>
> Sivasubramanian M
> http://www.isocmadras.com
> facebook: http://is.gd/x8Sh
> LinkedIn: http://is.gd/x8U6
> Twitter: http://is.gd/x8Vz
>
>

Mr Michele Neylon
Blacknight Solutions
Hosting & Colocation, Brand Protection
ICANN Accredited Registrar
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