Still More Sex.com

mark_wilkins writes "This morning the 9th Circuit Court of Appeals overturned a district court's dismissal of his claims against Network Solutions as a part of Kremen v. Cohen, Et Al.. This is the case in which Gary Kremen, the original owner of sex.com, sued Stephen Cohen and Network Solutions for transferring the sex.com domain to Cohen in response to Cohen's obviously fraudulent letter. While Cohen has fled the country, Network Solutions is still very much here and available to offer up any damages that might be rewarded. The case is going back to the district court for further hearings."

Comments

Yes, but...

[dacarr]

Let's never mind that this could set a precedent in naming standards, can't we just watch this fscking case end? NS is not responsible, the perpetrator is. Send the award to the federal level, let the Internal Revenue Service hunt him down and levy his check as if it were taxes. If he wants to protest, too bad - he may be out of the country now, but he was in the US then, IIRC, and that is how you base the penalty part.

Re:Yes, but...

[MImeKillEr]

IIRC, NS didn't bother contacting the original (read: rightful) owner of the domain before transferring to Cohen. As such, NS *is* responsible.

To put it another way: You drop your car off at a mechanic. Someone comes in claiming to be you and wants to pick up the car. A second mechanic doesn't bother verifying the identity of the person picking up the car & hands over the keys. Wouldn't the shop be at least partially responsible to make restitution?

Re:Yes, but...

[Randolpho]

Given that the letter was forged with Gary Kremen's stationary, a better example would be the second mechanic being handed a fake ID and being unable to determine that it was fake.

Under different circumstances, I'd be inclined to agree, but in this case, I'd say NS is not responsible.

One thing I'm concerned about... I was unable to determine if sex.com was actually returned to Gary Kremen. Was it? Network Solutions should certainly be able to take care of that.

Re:Yes, but...

[crow]

Network Solutions may be responsible for two reasons:

First, their security may have been so poor as to be considered negligent.

Second, they appear to have failed to take corrective action upon being notified of the problem.

Re:Yes, but...

[Rares Marian]

I'm sorry if this Internet TV show is so boring for you... why bother commenting?

When ISPs shut your service down when you aren't even distributing DeCSS (there was a stylesheet remover by that name as a way of protesting the DeCSS lawsuits.) without proper notification even though the DMCA requires it, you'd probably hold the ISP responsible.

Why not Network Solutions?

Re:Yes, but...

[MImeKillEr]

Under different circumstances, I'd be inclined to agree, but in this case, I'd say NS is not responsible.

How do you figure? They didn't bother to verify the change in ownership.

Re:Yes, but...

[dozer]

Given that the letter was forged with Gary Kremen's stationary, a better example would be the second mechanic being handed a fake ID and being unable to determine that it was fake.

That's a terrible analogy. Letterhead != Authorized ID. It's like the second mechanic being handed a letter on the original owner's stationary, and then NOT so much as calling the original owner before letting the car go.

Hell yes you'd hold the garage accountable for the loss of the car.

Re:Yes, but...

[jon787]

Registrant:
Kremen, Gary (SEX452-DOM)

Yep it was

Re:Yes, but...

[bobKali]

IF Network Solutions had corrected the problem immediately after being notified that they should not have transfered the domain name, THEN I think they should be in the clear. BUT, they didn't. After being told that the domain transfer was fraudulent, it appears to me that they did nothing to correct the problem. As I recall, it was like this for YEARS while it worked its way through the courts. No reason NS couldn't have investigated the original transfer order and properly returned the domain to its rightful owner.

Good. Network solutions is whorable.

[BoomerSooner]

I hope they shut down. I cannot stand network solutions.

stillmoresex.com?

[Alethes]

Most of us would be happy to just get started with anysexatall.com.

Re:stillmoresex.com?

[Lost Penguin]

"Doing Open Source Software without SCO is like going to war without France." SCO = Steal Code of Opensource

hehe

[Dave2 Wickham]

Your Rights Online: Still More Sex.com

( Read More... | 6 of 9 comments | yro.slashdot.org )

Yeah yeah, not funny, I know. No Karma Bonus for me!

Re:hehe

[Liselle]

Not a great loss. It wouldn't do you any good even if it WAS funny, so says the almighty FAQ.

Re:hehe

[Dave2 Wickham]

I meant as in posting at +2 (like this post will be as an example) when you have excellent karma. Yup, this karma is going to burn ;).

Re:hehe

[Antisthenes]

Being Funny doesn't help your karma now: read the FAQ lately?

Note that being moderated Funny doesn't help your karma. You have to be smart, not just a smart-ass.

Answered by: CmdrTaco
Last Modified: 6/03/03

I can see where Taco is coming from: (Score:5, Funny) comments are often unoriginal and unintelligent. But some of them are outstandingly funny, AND Insightful/Informative to boot, so I still think it sucks.

We moderators can, of course, mod up these hybrids as something other than Funny, if they are truly worthy of other positive descriptors and the resultant karma boost. Some of the shallower humor is still dang funny (to me anyway), and it still deserves attention, but a distinct way to reward clever humor would be cool. I doubt that we could convince the powers that be to institute any new descriptors, such as "Insightfully Funny" or "Informatively Funny." I don't know if any of us would want any schema that barbarous (my names are at least outright barbarous. ;-)) Seriously, that plan doesn't sound very appealing to me, but it's the best attempt at a feeble try I can come up with at the moment. Any ideas, Slashdotters?

Of course, maybe I'm just miffed because I found out the day I got modded up as Funny (that particular comment was neither informative nor insightful, and not all that Funny anyway ;-)).

[While we're at it, maybe we can add "Karma Whore" for all those 1337 masters of cut-and-paste ;-) (which is not to say that I don't find them useful).]

Re:hehe

[Anonymous Coward]

/me points to his other comment on this

Re:hehe

[Antisthenes]

Yeah, yeah. I saw it.

Re:hehe

[Anonymous Coward]

That's another change.

Why don't they just change the Karma system to Sith, Padawan and Jedi for -/0/+.

Decision has interesting implications

[Beryllium Sphere(tm)]

The 9th Circuit only reversed one of the district court's conclusions. The district court said that a domain name wasn't property because it's intangible. The appeals court said that intangible property is still property (leaving out some legal byways involving documents). If a domain name is property, then the good guy can sue for having it mishandled.

I'm sure an actual lawyer would have a dozen reasons for disagreeing, but as I understand "conversion" is the civil law's equivalent of theft.

What did the 9th Circuit cite as precedent for considering something intangible to be property? They used some copyright cases.

In other words, they're telling us that "intellectual property" will get treated under the law like physical property.

I hope there's a real lawyer reading this who can tell everyone how far off I am.

Re:Decision has interesting implications

[travail_jgd]

"In other words, they're telling us that "intellectual property" will get treated under the law like physical property."

In this case, intellectual property has the same restrictions as physical property. Excluding non-standard name servers like OpenNIC, there can only be one "sex.com".

Re:Decision has interesting implications

[ArsonPanda]

The district court said that a domain name wasn't property because it's intangible

Damn, coulda had interesting ramifications for the RIAA...

Re:Decision has interesting implications

[kaltkalt]

Well, IANAL, but I am taking the bar exam tomorrow :) I should be studying, but ya know, I'm burnt the fuck out at this point, so I'm just gonna relax today and screw around on the computer, eat twinkies, and smoke a few cigars.

The district court nevertheless rejected Kremen's conversion claim. It held that domain names, although a form of property, are intangibles not subject to conversion. This rationale derives from a distinction tort law once drew between tangible and intangible property: Conversion was originally a remedy for the wrongful taking of another's lost goods, so it applied only to tangible property.

So, the district court didn't say it wasn't property, but that it was intangible property that the tort of conversion doesn't apply to. [incidentally, conversion doesn't only apply to the taking of someone's "lost" goods... yeah, they are "lost" after they are taken, but that's an awkward, if not stupid, way for the district court to have put it.]

The common law tort of conversion is somewhat like stealing... it is the act of interfering with the ownership of another's movable or personal property without authorization or justification, especially depriving them the use and possession of such property. The big thing here was that some courts and the Restatement 2nd of Torts seem to imply that an intangible can be converted ONLY IF it is embodied in a 'writing' somewhere. But most courts don't follow that logic, and those who do follow it do it illogically. Judge Kozinski (so glad he wrote this!) cited the example of the court that said laundry delivery routes are not subject to conversion. Ok, but they were probably written down somewhere. Anyway, this case is only saying that intangible property can be converted, regardless of whether it is written down on a peice of paper (or in a rolodex - several pieces of paper).

Yes, there is the copyright case cited here, A & M Records, Inc. v. Heilman, 75 Cal. App. 3d 554 (1977), which applied the tort to a defendant who sold bootlegged copies of musical recordings. The court held broadly that "such misappropriation and sale of the intangible property of another without authority from the owner is conversion." This is the only copyright case cited in the case, and by no means does the case base its holding on this logic. In that case the guy was selling bootlegs. Surely that interferes with the ownership rights of the copyright holder. Is downloading a song of kazaa conversion? I don't think so, and would argue most certainly not, but regardless, that's not what that case was about.

... In rejecting the tangibility requirement, FMC echoes Payne's holding that personal property of any species may be converted.

Basically, Judge Kazinski (who is about the only Judge out there who knows what he's talking about when it comes to tech stuff) is saying property doesn't have to be a pure chattel to be converted. You've always been able to convert a promissory note, for example. That's somewhat intangible, as it's merely a negotiable instrument. Most courts have thrown out the old "tangibile property only" requirement for a conversion claim. The ONLY holding of this case is that a domain name can be converted, whether you want to call it tangible, intangible, or intangible embodied in a writing somewhere. The converter, therefore, can be held liable. Here, Network Solutions is liable as the converter.

In my opinion, this is just like being able to sue your bank for conversion (which you can) if it pays one of your checks to a person who is not entitled to enforce the instrument (i.e. a thief). This is basically what happened in this case. Network solutions was the bank, Cohen was the forger, and The plaintiff, Kremen, should be able to sue Network Solutions in conversion.

StillMoreSex.com

[dankow]

I wonder how many people are rushing to register www.StillMoreSex.com right now?

Re:StillMoreSex.com

[RobertB-DC]

Well, I took your suggestion. According to whois.sc, nobody has ever thought of "stillmoresex.com" as their dot-com brainstorm idea.

I couldn't resist the temptation... I went to Gandi and registered the domain. How could I pass it up?

I'll probably redirect it to the URL of this thread. I've registered it with a unique Gandi ID, so it's up for grabs for whoever wants it. Mention Slashdot, and I'll let ya have it pretty much at cost. Send a note to robert b at dixie dash chicks dot com and we'll go over the details.

Usually, I grab interesting domains to keep them from becoming porn portals! Now, I guess I've gone from Karma Whoring to Domain Whoring. So much for the purity of my Slashdot experience!

Boring or not, this is a *major* setback for NSI

[mark_wilkins]

To the poster who said that this was just another stop along the way in a multi-year court case, that's not true -- the case would be DEAD except for this. Honestly, as a domain name owner myself, I have a great interest in seeing NSI held accountable for this. Domain name dispute and transfer procedures, including NSI's implementation of them, are nutty and need fixing, and only this kind of case will make it happen.

Bipolar moderators, again

[RobertB-DC]

Now, come on, guys/gals... parent comment is at *least* as deserving of a "+1, Funny" as the next one.

That said, I *love* Bipolar Moderation (and have said so in public). But please, don't waste mod points modding me down... instead, mod parent back up!