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California Supremes To Decide If Domains Are Property
Richard W.M. Jones writes "Are domain names property like plots of land? The California
Supreme Court has been
asked to rule in the case of
sex.com which was
transferred using a forged letter to Network
Solutions.
Wired news also has the story."
What exactly are domain registrars selling if not property? If the Supreme Court decides that domain names are not property, it'd be fun to start a class action against ... hmmm... Verisign to recover the millions spent on domain names which are apparently not actually "property" at all.
Sig for sale or rent. One previous user. Inquire within.
Thinking about it, we're only renting domains. We pay for a term of usage for the domain, say 2, 4, 10 or 100 years. I consider myself the 'owner' of my domain though. Its mine, I paid for it, I can do what I want with it.
but what kind of property are domain names? Intellectual property? Trademarks? Or plain old real-estate type of property? This ruling will be an ideal acid test to see how the (U.S.) laws perceived domain names to be.
IMHO, it's interesting because it is very hard to specifically categorize domains as property in the sense of the word. It's intangible and value (or price if you prefer to put it that way) differ for every single domain. In the past the value of domain names are judged by the popularity of the site using the name, catchiness of the name, and whether the name is associated with any popular goods or services.
I'll be keeping a watch on this one.
Welley Corporation - SLM Scammers
On the other hand, this could result in more difficulties for owners of domain names that are related to trademarked names. Stronger protection could result in more support for the trademark owner.
As usual, either way, the lawyers win.
Patrick
Ancient Anguish: Free, fun, open-ended.
The only person who can own any kind of "name" is the company or person who trademarked the name.
For instance General Motors owns the name "General Motors" and we cannot use it for any purpose, including as a domain name (at least under US copyright law, which is generally enforced in any industrialized country).
Stanley Feinbaum, professional journalist and master debater! God bless the USA!
Reading the opinion, the question presented is quite different from the suggestion in the heading. The California Supreme Court is being asked by the 9th Circuit whether, under California law, the tort of conversion applies to intangible personal property.
Conversion is a theft-tort related to the taking and use of personal property of another, even if the property is later returned. An example might be joyriding your car, returning it in perfect condition to the place you were.
It is an old tort, steeped in common law. At common law, it did not apply to anything but physical, tangible personal property. Then came the bank note cases, and the bond cases and the stock cases -- here, where only paper was converted, the argument is that the damages were the value of the paper (the personal property that was tangible) rather than the value of the instrument (the intangible obligation represented by the property).
Under the old rules, conversion didn't give a remedy for the conversion of a contract right or other intangible. Most states have poked holes in that, primarily in negotiable instrument cases. The question is whether California permits an action for conversion for the imposition on the contract rights of another, in this case, a domain name.
The facts entailed the obviously fraudulent taking of a domain name and Varisign's failure to make a single phone call, taking a ridiculous (laughable) forgery instead. The jury found conversion, among other things, and a massive judgment -- and now the case is on appeal.
Of course it is a massive judgment -- the domain is sex.com!
When I was involved with settling an estate a couple years ago, I would have been grateful to have some legal answers about what to do with the three domains owned by the deceased. None of the lawyers and tax accountants involved had any idea how to handle that situation, and the service through which they were registered didn't have an answer either. If domain names are governed under some kind of property law, it will greatly help in these situations.
Where's the forest? And what are all these trees doing here?
I completely agree. However, a leasehold agreement seems to fit better with me - you tend to pay upfront for a 2 year lease which you have first refusal on renewal. You can sell on the remaining term of your lease to 3rd parties at any time.
I would say a domain is a property, and should be considered the same as a highstreet store (a mall shopfront if you prefer). The "owner" of the shop has leased the property, and for all reasonable purposes can treat it as if they own it. With a bricks&mortars lease you know when you've been evicted, but when you lose your domain, the first you know of it may be when people stop coming into your store.
The agreement between you and the registrar is that they will direct people to your web site, and will continue to do so until your agreement ends or you tell them otherwise. Anything else is a breach of the agreement on their part. If a they act on a letter from a 3rd party saying "I now own this site, give it to me" then that's a breach of their agreement with you. Whether the 3rd party committed fraud is between the registrar and the 3rd party - now that's a court case I would like to see, I'm sure even judges like to see a nice farce now and then!
If the court decides that domains aren't property, then every registrar out there can be done for false advertising, as they are stating that you are buying property, then everyone that has a domain registered can claim that they did not get what was advertised. Sounds like a nice big class action suit.
If on the other hand the court decides that the domains are property, then we get into an interesting grey area of trespass etc.
IANAL, but I would guess that the reason the court was asked to sort out this distinction is that the original owner needs to be able to work out whether they are arguing about theft of property by deception, or something else if it is a service. It's like the distinction if someone steals your cable box vs someone hooks into your service.
The letter was ludicrous -- it purported to be from an internet services vendor explaining that they wanted the third party to tell NSI, since they didn't have internet access. Hmmmmmm....
Yet NSI, through their unreaonable conduct, transferred the domain name anyway. Breach of contract? Sure. Conversion? That's the issue.
the reason why NSI was a defendant is that they were there. The plaintiff will NEVER collect a cent against the judgment proof individual, who is a big sleaze. NSI, or varisign, on the other hand is quite collectible.
IANAL, but the type of property (i.e., tangible, intangible, or intellectual) has some impact on the way the original owner can recover his loses. It also affects how third parties should treat the transaction. For example, certain types of property can be transferred by oral contract, other types require a written contract. I believe most, if not all, states require a written contract for real estate transactions. In contrast, movies deals involving intellectual property are routinely based upon oral contracts and handshakes. Therefore, the degree to which Verisign is responsible, the due diligence that Verisign should have taken, and thus how much they are legally responsible for the original owner's loses are at stake.
I assume money is some sort of property. Regular ol' "stuff" kind of property. Like my computer or my car, or even this chair I'm sitting on.
But last time I checked, about 98% of money exists only as bits in a computer somewhere. Not paper currency or anything, just bits.
Which is basically what domain names are. Bits in a computer. So it seems to stand to reason that domain names are regular ol' property.
--
#include <malloc.h>
free(your.mind);
Umm, it isn't the 9th District Court or even the 9th Circuit Court. It is California's Supreme Court. If you get your news from Faux or some of the other far right lunatics, they will slander the 9th as being ultra liberal but it isn't true and their reversal rate is not much different than any other court on the Federal Circuit.
In this case, the 9th Circuit Court of Appeals kicked the question to the California Supreme Court. If the California Supreme Court decides to answer it, then the answer goes back to the 9th Circuit which will give then kick it back to the Federal District Court with what amounts to instructions to 'do what the California Supremes said.'
Since this is a state law question, the California Supreme Court is the final arbiter. The US Supreme Court cannot overrule the California Supreme Court on a question of California state law. Unless of course they are willing to commit a constitional coup like when they told the Florida Supreme Court what Florida law on elections should be.
I run my own DNS server, so they aren't selling me that.
I can take it to another provider.
A good analogy is that they are selling me an easy to remember phone number, or perhaps a listing in a very popular business directory.
If someone writes to the telephone company, forging a letter saying that I want to give up my 800-sex-com number, I have a good right to be annoyed if the telephone company believes the letter and doesn't even bother to make a follow-up call to me.
Rich.
libguestfs - tools for accessing and modifying virtual machine disk images
A "Hell Yeah" they're property. You pay money for the domain and the domain is registered in your name. It should be treated no differently than any other property. The physical property associated with the domain name is that little SERVER that's the actual target in the DNS records. While the owner of the domain doesn't actually OWN the server, this shouldn't matter. When you RENT a P.O. Box, its your property (the contents, at least and it cannot be opened without a court order) until you either turn over the keys or stop paying for it.
Cruising the internet on my TI-99/4A @ a whopping 300 baud!
You answered your own question. If domain names aren't property, Verisign is still selling a service.
For example, imagine if you pay me $10 to stand on a street corner for an hour and tell anyone who asks about Soporific that his Slashdot uid is 595477. 5 people come up and ask about you, and I answer them all. There's no property I've sold there (and I certainly have no control over your Slashdot handle or its uid), but I've still performed a service.
Now imagine you pay $70 to Verisign so that during the next two years, when anyone asks about soporific.com, they tell those people what the IP addresses for some DNS servers that happen to answer questions about soporific.com.
Two fairly similar services, which don't require the notion of property to work. Of course all that being said, I do believe that domain names are a sort of property. It's just that Verisign's legitimacy isn't predicated on them having to be property.
--there are two issues here, one is fraud with the letter, the other one is "what is a domain?".
There's been several good analogies in the thread, here's mine: Domains are "more similar" to a government allowed frequency monopoly that the FCC grants to a broadcaster. Broadcaster pays x amount of money per year for this license, and also must follow a set of rules. In this case switch FCC as a governmental agency to a private company that has similar powers "subcontracted" to them. We do this now in a big way inside the US in the prison system, a lot of them are privately owned and run (wackenhut for instance). I don't like that, but it's current reality,a very important public governmental *thing* being subbed out to a private definetly for-profit concern can lead to a lot abuses, IMO.
Where it is different is that there isn't any total exclusivity to this particular subcontractor,although they are *very big and very known and quite well used*, all they have going for them is inertia and size, as other forms of registration exist-albeit small and not used much-and it's international in scope, just not within a single state or nation.
The FCC can "grant" a license to someone to broadcast on such and such freq, outside their jurisdiction in another nation that doesn't mean a thing, and two signals can and frequently are on the same freq, or pointing at a similar place to follow the analogy. Happens all the time in radio. There's various international *almost-rules* but in fact there is no absolute enforcement short of warfare.
here's another way to look at it
The basic reality is, although it *appears* to be a property rights issue as to the word address represented as the domain "name", the "rights" involved don't actually exist because the REAL property itself doesn't exist, only the temporarily placed digital SIGN that POINTS TO where a temporarily installed digitial numeric address exists, and it's quite possible to have any number of signs, all saying different things, that will point to the same address.
If it was REAL property you could own it forever if you chose to, like a trademark, car, or house. It would be unique, and "yours".
The IP number and actual computer where the content is hosted, and any copyrighted content served therein and from is the real "property" in the classic sense of property, the sign giving directions to it is just an advertising and direction finding convenience and a separate thing, although still a "sort-of" property,it isn't absolute in any sense, it can never be "owned" forever, therefore isn't property in any other sense compared to any other sort of property in past historical common law.
These signs-pointing-to the real property have varying levels of advertising effectiveness in attracting "travelers" on the road that are looking for addresses to stop at. In that case the signs themselves are a separate piece of "sort of property" from the IP address and content served, and the people who build and set out the signs-the domain registrars-own all of them as if you don't pay them off you lose it, so you never "own" them as property, you temporarily lease them with limited rights. And you can still put your own signs out and use other sign companies if you want to, just one has currently more advertising impact.
So there's two pieces of property-so now you have to ask which is more valuable and who actually owns each piece of property. The website creator and host sort out with themselves who owns what over there, but any "word" domain name you can't ever, ever "own" unless you "do it yourself" with your own domain server, and it still can't stop anyone from doing it themselves and copying the same wording and pointing at their property, so it gets down to who has a better advertising company and who will use your advertising directions over some other fellow's constructs. Both are legal in other words, no one over the other in toto is possible, although currently it is more highly probable that one will get used a lot more than the other.
Now how you contract that with another sign pointing company because you realise doing it yourself isn't real effective and you want to go with the current entrenched "bigdog" in the sign pointing business is a variable, if you choose to keep renting their advertising signs that give directions to your 'real' property that you can own forever that's an easier issue. In that case you have a tort action if they fail to fulfill their side of the contract, so that part to me seems like a slam dunk for the website originator and whomever paid the loot first to the sign pointing company that stuck the signs out. That's really easy to see. In this particular case the sign pointing company screwed up because they were lamers and didn't verify who was who effectively,so they should lose in the first case, BUT, they themselves have a civil tort-potential against the letter sender, who also may suffer an additional criminal action if the state (and feds actually) chooses to prosecute.
Law gets easier to understand if you first sort out the differences between dealing in "real property" and "commerce" and tangibles you can own forever and temporary intangibles.