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"?

[Sivasubramanian M <isolatedn@xxxxxxxxx>]

Dear Michele


On Fri, Aug 20, 2010 at 5:13 PM, Michele Neylon :: Blacknight <
michele@xxxxxxxxxxxxx> wrote:

>
> 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
>

Of course I know this.

>
>
> >  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 didn't say anyone said so, nor did I say 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 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.
>
> 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
>

Insane global thing? No doubt this is a global issue, but why would you call
this an 'insane global' thing ?  This is a group that examines Registrar
Accreditation Agreement, and at the heart of the RAA topic is the question
of domain ownership.  On domain ownership and domain name rights, US Courts
have ruled, and these rulings are cited as rulings over Domain Names, not as
rulings over Domain Names registered in the USA or as rulings over Domain
Names registered by US registrants, not even as rulings over domain Names
controlled by US business corporations. The rulings appeared universal, it
sounded like rulings over all domain names without being specific about
whether the names in question are ccTLDs are gTLDs. So I raised this
question.

And this is quite pertinent to the topic of this working group.

Sivasubramanian M


>
>
> > 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
> http://www.blacknight.com/
> http://blog.blacknight.com/
> http://blacknight.mobi/
> http://mneylon.tel
> Intl. +353 (0) 59  9183072
> US: 213-233-1612
> UK: 0844 484 9361
> Locall: 1850 929 929
> Direct Dial: +353 (0)59 9183090
> Twitter: http://twitter.com/mneylon
>
> PS: Check out our latest offers on domains & hosting:
> http://domainoffers.me/
> -------------------------------
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> Road,Graiguecullen,Carlow,Ireland  Company No.: 370845
>
>