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>]

I agree completely with Marc and Phil's explanations, comments, and analysis. 
Thank you both for your input and replies to Siva's questions.

Statton

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

________________________________

From: Phil Corwin 
To: Trachtenberg, Marc H. ; Sivasubramanian M ; Hammock, Statton 
Cc: gnso-raa-b@xxxxxxxxx 
Sent: Fri Aug 20 15:10:37 2010
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"? 


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

D: +1 (312) 558-7964

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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> 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

 

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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 

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
                facebook: http://is.gd/x8Sh
                LinkedIn: http://is.gd/x8U6
                Twitter: http://is.gd/x8Vz

         

 



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