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>]

Completely agree with Marc's response.

Also, as regards your statement -
"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."-
I would respectfully disagree.

ICANN is the technical manager/coordinator of the DNS and, while an arbitration 
system for trademark disputes relating to domains (the UDRP) has been part of 
its mission statement since day one, ICANN is not a legislative or judicial 
body and therefore is not the place in which the question of whether or not a 
domain constitutes a form of property should be resolved.

As I recently wrote on a  related topic 
(http://www.circleid.com/posts/google_ebay_keywords_domains_icann/ ):

ICANN has a responsibility to upheld established trademark law in the DNS. But 
ICANN also has a responsibility to see that rights protections in the DNS are 
informed by and are consistent with an evolving legal landscape. Indeed, ICANN 
lacks any authority to establish DNS rights protections that are not firmly 
grounded in established law as ICANN has no legislative powers to promulgate 
new trademark policy.


That is, just as I believe that the rights to be protected by any new RPMs must 
be limited to trademark rights established by national legislatures as 
interpreted by the courts (or by international treaty or agreement), ICANN 
similarly lacks any authority to establish the legal status of domains as 
property, or not.


From: owner-gnso-raa-b@xxxxxxxxx [mailto:owner-gnso-raa-b@xxxxxxxxx] On Behalf 
Of Trachtenberg, Marc H.
Sent: Friday, August 20, 2010 2:59 PM
To: Sivasubramanian M; 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"?

Siva,

In response to your statement that "domain names can't strictly be confined to 
a national space even if the Registry / Registrar are identifiable as from that 
nation," I think you are missing the point being made here and confusing the 
effect, reach, and interest in domain names with their ultimate control.  While 
it may be true that domain names cannot be STRICTLY confined to a national 
space, from a practical perspective, one national space has ultimate control 
over all domains in any TLD where the registry is located in that national 
space.

For example, the registrant of a particular domain name could be located in a 
county other than where the registrar/registry is located.  That registrant 
would be subject to that country's law.  Accordingly, the registrant could be 
legally compelled by a court in that country to transfer a domain name or take 
another action with regard to a domain name even if the registry/registrar is 
located in a different country.  However, if that registrant refused to comply, 
the court in that country would have no ability to enforce its judgment on the 
registar/registry in another country.

The registry for a TLD is in the ultimate position of control of all domain 
names in that TLD, and since that registry will always be subject to the law of 
the jurisdiction in which it sits, laws and court orders in that jurisdiction 
will always trump actions outside that jurisdiction.  So, ultimately what is 
most important for domain names in that TLD is that law of the jurisdiction 
where the registry sits, because the domain name can always be reached there.  
While you may not like this or agree with it philosophically, and you may think 
that there should be another system, hopefully you can see that in some sense, 
while the effect or reach of domain names may not be confined to a single 
national space, control of the domain names and their ultimate disposition CAN 
be confined to a national space and always will be able to be so confined, 
unless the registry is located somewhere that is outside of any jurisdictional 
control (perhaps outer space?).

Best regards,

Marc H. Trachtenberg

Winston & Strawn LLP
35 W. Wacker Drive
Chicago, IL 60601-9703

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[Winston & Strawn LLP]
From: owner-gnso-raa-b@xxxxxxxxx [mailto:owner-gnso-raa-b@xxxxxxxxx] On Behalf 
Of Sivasubramanian M
Sent: Friday, August 20, 2010 1:28 PM
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,
On Fri, Aug 20, 2010 at 7:31 PM, Hammock, Statton 
<shammock@xxxxxxxxxxxxxxxxxxxx<mailto: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
[http://www.networksolutionsretail.com/signature/netsollogo09.gif]

P 703-668-5515  M 703-624-5031 
www.networksolutions.com<http://www.networksolutions.com>


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From: Sivasubramanian M [mailto:isolatedn@xxxxxxxxx<mailto:isolatedn@xxxxxxxxx>]
Sent: Friday, August 20, 2010 7:14 AM
To: Hammock, Statton
Cc: gnso-raa-b@xxxxxxxxx<mailto: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<mailto: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<http://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
[http://www.networksolutionsretail.com/signature/netsollogo09.gif]

P 703-668-5515  M 703-624-5031 
www.networksolutions.com<http://www.networksolutions.com>



From: owner-gnso-raa-b@xxxxxxxxx<mailto:owner-gnso-raa-b@xxxxxxxxx> 
[mailto: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<mailto: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




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