Here are some things for domainers to consider now that the Kentucky case has been overturned.
The Kentucky Court of Appeals has overturned a trial court’s ruling that the state could seize domain names associated with online gambling. The Court of Appeals ruled that domain names weren’t “gambling devices”, which was part of the statute used to justify seizing the domains.
As Michael Berkens pointed out, this is a narrow victory. Electronic Frontier Foundation writes that the ruling suggests to the Kentucky legislature that it can change the definition of “gambling device”, but it still believes the case will be without merit because “In addition to this type of domain name seizure still raising serious First Amendment, due process, and other constitutional problems, Kentucky courts (as pointed out in our joint amicus brief) also lack the authority to directly order out-of-state registrars to turn over customer domain names.”
The Kentucky domain seizure case prompted a lot of cries to move domain names to domain name registrars located outside the United States. As I’ve written before, I don’t think this is a good idea. For a number of reasons, I think the United States is one of the safest places to keep your domains. In fact, U.S.-based Geo domainers who own foreign city and country names will keep the domains under the ownership of a U.S. company and lease them to a foreign subsidiary. And it seems that foreign interests in ICANN are mostly concerned with whether particular domain names and new TLDs are “moral”.
To be sure, there are some countries that may provide more protection for your domain names. If nothing else, these countries will stall efforts to seize domain names.
If you’ve been thinking about moving your domain names (or other aspects of your business) offshore, you should consider going to Domainer Mardi Gras next month. The entire agenda is about risk mitigation. I will be on a panel about moving offshore.
HOWARD says
The 2 registrars that turned the domains over to the State of Kentucky (eNom and GoDaddy) are now in the embarrassing position of trying to get them back. The problem is not so much “should I go to an offshore registrar?” but rather, can I trust my registrar wherever it may be to look out for its customer’s interests rather than its own.
Andrew Allemann says
Howard – you’re correct. With regards to GoDaddy, I don’t think they handed the domains over. They just gave the “registrar certificate”.
HOWARD says
Andrew – you are also correct. However, if you look up the terms of a “registrar certificate” you will see that it is tantamount to giving Kentucky the domains.
Andrew Allemann says
Howard – in this case it was even worse, since the court used GoDaddy’s registrar certificates as proof that it had jurisdiction.
Not Over Yet says
Kentucky plans to appeal the appellate court decision. This isn’t over yet, folks.
Mario Koch says
“For a number of reasons, I think the United States is one of the safest places to keep your domains. In fact, U.S.-based Geo domainers who own foreign city and country names will keep the domains under the ownership of a U.S. company and lease them to a foreign subsidiary.”
Thats just wrong and spreading wrong fear.
You can keep the city domain in any country if not the country where the city is located. Nothing will happen. Domain owners should learn a lesson from Kentucky and Cuba cases. Your domains domains are not safe in the US!
Andrew Allemann says
@ Mario – for Geo domains, there’s plenty of case history in the U.S. I’m not familiar with other countries with case history.