Some good news came out of the Kentucky domain hearings yesterday.
Internet Commerce Association, which defends the rights of domain owners, sent Executive Director Michael Collins to Kentucky for the “Domaingate” hearings. You can read his synopsis on the ICA’s web site.
The most interesting news is that Network Solutions appeared to be the only registrar to send representatives to fight the illegal and unprecedented transfer of domain names to the Commonwealth of Kentucky. Although other representatives may have been in the court room, only Network Solutions’ representatives addressed the court. Whereas some registrars just handed the domains over without a fight, and others later acquiesced, Network Solutions is making the effort to fight it. That’s a smart move. If this seizure goes forward, domain registrars are going to face mounting legal bills in the future from registrants who’s domains are handed over based simply on ill-founded court orders.
Other interesting points from Collins:
– Plaintiff’s counsel argued for the position that a domain name/website is subject to jurisdiction anywhere in the world from which it can be viewed. He said domain names are virtual “property†and that they are anywhere and everywhere. (Note: This is an absurd position and contrary to US case law.)
– Defense argued that the domains are not in Kentucky and that they are not property, that they are just letters and numbers that enable people to find websites, like the letters and numbers that make up the address of a house. Taking away the address doesn’t take away the house or the ability for someone to visit it to gamble.
– Lawrence Walters addressed one of the most important issues to most of our members, since I don’t know of any ICA members are operating gambling sites. He addressed the fact that many of the domain in the seizure order were not operating gambling sites, but were being seized only because they contained advertising for online gambling. He characterized this use as constitutionally protected commercial speech that this seizure is in violation of First Amendment rights. By the way, I have long admired Walter’s domain name, FirstAmendment.com.
The judge said he’ll need seven days to decide whether to move forward with the seizure.
Claude says
I think we should all thank Networks Solutions for this brave and costly move of support.
For what it is worth, I have had nothing but extremely positive experiences with this registrar. They reward me with lower fees, they are 100% secure and offer a host of services.
Thought that they deserved a positive post.
Thanks,
Claude
Jeff Schneider says
We would like to know Oversee.nets position on releasing certicates to Renegade thieves on our domain names at Moniker? We think we know the answer, but it would be nice to have some assurances right about now.
Scott Roberts says
I wonder if arguing domains are “not property” is the best move long term. Property has a lot of protections built up in case law. Not a lawyer, just wondering…
Johnny says
There have already been rulings that domains are property.
Ken says
“He characterized this use as constitutionally protected commercial speech that this seizure is in violation of First Amendment rights.”
Freedom of speech is one thing; advertising the services or products of another is entirely different. If the advertisements go against laws or morals or ethics merely for the purpose of profit through PPC or other means, then that’s not protected by the first amendment. It would be irresponsible and damaging to the protections the First Amendment grants all of us to use that shield to such ends.
In some ways domains operate like property and in others they do not. It’s an argument that will take many more years and cases such as this to set the precedent. One minute the ICA supports domains as property and the next they don’t. They want it both ways depending on what suits them for the moment.
In the end (years)I believe domain names will become property but the way they currently function domains are not. Kentucky is wrong here. They’re operating like any other business in their attempt to use any means possible to stifle competition. That’s all this is about. Something else was going on there behind the scenes before we ever saw this case filed (agenda).
Michael Collins says
Hi,
To be clear, ICA filed an amicus brief in this case, stating that it is not clear that domains are property. There have been decisions both that domains are property and that they are not. This fact is mentioned in our brief, but it is not the main basis for our request to dismiss the seizure order.
Not only is there not clear legislation or case law in the US regarding whether domain names are property, there is not a clear preference on this issue among domain owners. Truely, it depends upon the circumstance. Sometimes as in this case, it is not good for domains to be consider property “subject to seizure”, but in other cases it might be different.
The property issue is worthy of discussion, but takes away from the bigger issue in this case, which is jurisdiction. How can Kentucky seize a domain name and in effect close a business operating legally and regulated in its home jurisdiction? This is expecially disturbing considering that it seems to be done to protect an instate gambling site, TwinSpires.com, from competition.
Ken says
“This is expecially disturbing considering that it seems to be done to protect an instate gambling site, TwinSpires.com, from competition.”
It is not surprising at all. What is disturbing is the use of public funds and a government organization to perpetuate this as some legitimate action.
It’s business as usual, eliminate the competition and “capitalize” on laws that can be interpreted and weaknesses in your opponents position. We see this case as noteworthy because the defendants are well enough monetized to put up a fight against this. Yet this sort of heavy handedness is happening everyday in America and in courts. It’s how the system has structured. If you’re not monetized then stay out of the court system.
The issue of property is just as important, if not more, in this case because if the domains are not property then jurisdiction doesn’t even matter because there is nothing to seize. At worst it would become a cease and desist of their activities Kentucky would consider in violation.
Ken says
Update:
It appears that Domaining.com (an ICA professional member) has deleted my account with them for no legitimate reason. I can only surmise that this is in response to my decent and questioning of the policies and tactics used by the ICA. This is unfortunate but only further shows the lack of transparency by this organization which is supposed to represent “domain name owners”. Notice their slogan does not stat “all”.
ICA is a limited representation. The general domain owner populous only benefits from the trickle down left from what they do for themselves.
Time to go back to RSS feeds.
KS says
D@mn, it so helps being a Registrar. If I were even a slightly bigger domainer than I am, I’d have been one.