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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."
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?
Cruising the internet on my TI-99/4A @ a whopping 300 baud!
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.
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.
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.
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.