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[ga-tm] Courts say domains are property? Or not?

  • To: "John Berryhill Ph.D. J.D." <john@JOHNBERRYHILL.COM>
  • Subject: [ga-tm] Courts say domains are property? Or not?
  • From: "Patrick Corliss" <patrick@corliss.net>
  • Date: Tue, 1 May 2001 05:47:54 +1000
  • Cc: "[ga-tm]" <ga-tm@dnso.org>
  • References: <20010423182221.67312D52A@ns1.vrx.net> <20010423124245.A21424@songbird.com> <020701c0cc3b$1bd5b120$3401010a@ddhs.com>
  • Sender: owner-ga-tm@dnso.org

I think this posting from John Berryhill is worth repeating here.

But can anyone tell me why it matters how domains are defined?

That could be one item off the agenda real quick ;-)

Patrick Corliss

----- Original Message -----
From: John Berryhill Ph.D. J.D. <john@JOHNBERRYHILL.COM>
Sent: Tuesday, April 24, 2001 7:16 AM
Subject: Re: Courts say domains are property? Or not?

From: "Kent Crispin" <kent@SONGBIRD.COM>
> On Mon, Apr 23, 2001 at 02:22:21PM -0400, Richard J. Sexton wrote:
> >
> > Didn't this court say they were?
> >
> > http://vrx.net/alternic/courtorder/nicjud07.gif
> Nope.
> That court order just transfers any property rights that may exist,
> without specifying in greater detail what they are, or indeed whether
> they exist at all.

Bang on target.  The issue of whether there were any "property" rights was
not before that court.  It assigns any property rights or "use rights" or
whatever.  The phrasing seems to be a catch-all provision in order to
a certain practical result, regardless of how one views the status of the
subject matter at hand.

The discussion of whether domain names "are property" or "are not property"
is IMHO largely unhelpful, since the term "property" itself doesn't
a single consistent thing.  What I have seen are disputes wherein one party
or another desires for domain names to have some particular attribute
normally lumped into "property" rights.  For this reason, the decisions that
folks cite for the proposition that domain names "are property" or "are not
property" bear some close reading.

The term "property" can refer to a variety of rights.  Can you rent it...
if you break the "lease" would the "lessor" have a claim enforcible against
the registrar?  Can you leave it to your heirs?  Can it be stolen?  Can your
creditors in bankruptcy claim it?  A first-semester property law class
generally begins with the professor stating that "property" is a bundle of
rights, and not a single right per se.

Some of the questions above have been answered in various cases.  For
example, there is a VA state court decision that says domain names are not
property subject to a creditor's claim in bankruptcy.  There is a CA federal
court decision that says domain names are not property subject to a
conversion claim in tort (the civil flavor of theft).  But these decisions
generally don't say domain names "are property" or "are not property".  What
they say is domain names do or do not have a particular attribute within the
bundle of attributes collectively referred to as "property" for the purpose
of the litigation at hand.

Now, some people think that domain names "are property" because they can be
"bought" and "sold".  But I'm not entirely sure that is correct.  If one
takes the view that domain names are merely registration service contracts,
then all of this "buying" and "selling" more closely resembles a contract
operation called a "novation".  Initially, there is a contract between a
first registrant and a registrar.  In order to transfer a domain name, the
second registrant must independently establish a contractual relationship
with the registrar, and the registrar must relieve the first registrant of
its duties in order to recognize the second registrant and establish
essentially the same registration contract with the second registrant, thus
forming a "new" contract for registration of the domain name.  The
willingness on the part of registrars to establish novations of registration
contracts makes it seem as if the domain names are being bought and sold,
since the practical effect among the parties is roughly similar.  But the
legal implications are different.  For example, if the first registrant
breaches a contract for the sale of a domain name, the registrar is not
to care and the "buyer" is not going to be able to force the registrar to
care.  All domain name contracts include a "non-assignability" clause, for
the very reason that registrars have no interest in getting involved in
disputes between the registrants and third parties who may have been
various things by the registrants.

Another argument I've seen is that domain names "are property" due to the
rem_ provisions of the ACPA.  Without getting into the recent federal court
decision in Massachusetts dismissing these provisions as unconstitutional,
this argument is IMHO very weak.  After all, if it were beyond question that
domain names _were_ a form of property, then there would have been no need
include a provision for _in rem_ jurisdiction in the statute in the first
instance.  What the statute says to me is, "under certain circumstances, we
will allow a plaintiff to proceed with the suit AS IF the domain name were
property".  That's a procedural provision, not a substantive one -
essentially the statute says that we'll pretend that domain names are
property under certain circumstances, in order to allow one to do various
procedural things.  Again, the fact that the provision was expressly put
the statute should lead one to the conclusion that domain names "are not"
property, rather than the other way around.

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