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"?

["Hammock, Statton" <shammock@xxxxxxxxxxxxxxxxxxxx>]

Siva, 

 

When I read through your last comments I counted 8 separate questions,
some of them hypothetical some not. My apologies, but I simply can't
spare the time to address each and every one of them.

 

Let me just affirm that the use of a domain name is a contract right
which arises from an agreement between a registrar and registrant. I
suppose from one perspective the registrar is an "intermediary" in the
sense that it has the right to provide registration services only
because it has been granted those rights pursuant to its agreement with
a registry, who ultimately controls the zone files for all domains in
the TLD registry. 

 

I do not disagree with the replies from Michele and Phil on certain
other points that you had made in your last comment. 

 

Again, my apologies for not being able to engage in a back and forth
discussion at this time.  Perhaps we can set a time next week to discuss
over the phone. 

 

Best Regards, 

 

Statton 

 

 Statton Hammock 
 Sr. Director, Law, Policy & Business Affairs 

 

P 703-668-5515  M 703-624-5031 www.networksolutions.com

 

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From: Sivasubramanian M [mailto:isolatedn@xxxxxxxxx] 
Sent: Friday, August 20, 2010 7:14 AM
To: Hammock, Statton
Cc: 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"?

 

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?

 

        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?  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 am a Registrant
for isolatednetwork.com 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 where 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. I am uncomfortable with the jurisdiction of the US
Supreme Court over my domain names as a Registrant from another country,
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. 

 

 

        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.

 

         

        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 



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
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