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 Statton Hammock,

On Fri, Aug 20, 2010 at 7:31 PM, Hammock, Statton <
shammock@xxxxxxxxxxxxxxxxxxxx> wrote:

>  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.
>

This is part of what I have pointed out.

>
>
> 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.
>

As I said these are comments about some general points and not
NetworkSolutions-specific. All of what I have said were seen as 'reactions'
to what you have written. On the role of a Registrar and the registration
process, my comments were in response to some of your observations. But my
general comments about the jurisdiction of US judicial positions are not to
be seen as 'reactions' to what you have written, though I have raised my
comments in the context of your message.

The spirit of my comments about the US court rulings is completely missed
(especially by Michele). The summary my comment is that domain names can't
strictly be confined to a national space even if the Registry / Registrar
are identifiable as from that nation. Due to the global nature of domain
names, for the sake of uniformity and universality, it requires an
international judicial position to decide on the ownership aspects / rights
of a domain name.  This is possibly a topic for the ICANN community and the
GAC to examine.

Sivasubramanian M

>
>
> Best Regards,
>
>
>
> Statton
>
>
>
> * Statton Hammock
> * Sr. Director, Law, Policy & Business Affairs
>
> [image: http://www.networksolutionsretail.com/signature/netsollogo09.gif]
>
> *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
>
> [image: http://www.networksolutionsretail.com/signature/netsollogo09.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
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>
>
>