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Canadian Judge Rules Domain Names Are Property
farrellj writes "A recent decision in the Ontario Appeals court has ruled in favour of Tucows, saying that domain names are considered property, rather than being a license. This has major ramifications for a people both inside and outside Canada, doubly so since Tucows is a major domain registrar. This ruling comes from a very high court, which means that any appeal must go to the Supreme Court of Canada. So there is a good chance this ruling will stand."
Who owns the domain name?
The Tao of math: The numbers you can count are not the real numbers.
I guess it depends on who owns the domain name. Since I don't know the entities mentioned int he article, nor the case it speaks about, I can't tell. Now if the domain name is property of ICANN or the registrar, I guess not much changes. However if the domain name is owned by whoever registered it, I don't see how the registrar could legally reclaim the domain name, or demand continued payment for it.
The Tao of math: The numbers you can count are not the real numbers.
and then it should also mean if i attach an ip to said domain that all the protections of law regarding my private home must be observed aka you must have a warrant to enter or view anything that iis behind my domain....THIS will really put a crimp in the lawfull access law that wants warrantless search and seizure of internet ....home users i suggest you get a static ip and point a domain at your ip....
but what sort of effect would such a ruling have? ie: why the fuck should we care?
Well, among other minor matters, it would tend to suggest that your registrar is more in the position of a landlord than of a software-licensor(ie. he doesn't have complete power to fuck you over arbitrarily) and it would also tend to suggest that your friendly local feds would be bound by whatever pitiful shreds of procedural protection govern seizing property, rather than something even weaker...
TFA explains that it was a panel of three judges, so it was the Court of Appeal for Ontario's decision, not the decision of a single judge.
The pursuit of absolute tolerance leads to the most rigorous and ludicrous intolerance. - REX MURPHY
The Ultimate Collection of Winsock Software is registering domains? Man I'm old. Has Flint Michigan done so bad that we gave it to Canada?
Next you're going to tell me Minnesota Mining and Manufacturing Company has stopped selling stuff for my mine.
If it does go to the Supreme Court in Canada, oral arguments will be watchable. In the US, the Supreme Court does not allow cameras in the Courtroom (although you can still hear the audio).
-- IANAL, this isn't legal advice, and definitely isn't legal advice for you. Also, Squee!
Yes. They have the internets. Power, on the other hand... they have it, but it costs an arm and a leg. Literally.
-- IANAL, this isn't legal advice, and definitely isn't legal advice for you. Also, Squee!
If I were to create some new kind of network, and start assigning a system of names to things that people on the network had control over, no one would think that such names were property at first.
But if they were to start making money on those resources, eventually, the assigned names would be considered 'property', in the sense of legal ownership? On a shared network? Seems odd.
It seems that whenever people start to depend on a resource, they start clamoring for exclusive ownership to be imposed on that resource.
From thoughts and ideas, to physical objects, to living creatures, and to entire genders and classes of people, we've had a LOT of odd ownership systems come and go.
I just don't see what the purpose of this system of legal property is. It's there already effective consequences for hijacked domain names? Does it have to be tied up in the mess that is legal ownership, what names are assigned in a DNS system?
Ryan Fenton
By this ruling, if you were to lapse on payment for your domain registration, your registrar could "purchase" (by way of "paying" themselves) it for themselves and it would become their own property forever. They could sell it to you for an inflated price, or never sell it to you again if they felt so inclined.
And of course, they would likely list the registration of what used to be your domain through an obfuscation service, so that it would be unclear who the new owner is - which would then result in you having to pay multiple companies to get back what used to be yours.
Damn_registrars has no butt-hole. Damn_registrars has no use for a butt-hole.
You'd think they'd be more like trademark than property, in that respect?
I don't really see how a domain name can be property any moreso than a mailing address?
I work for the Department of Redundancy Department.
If as the court has ruled that a domain anme is "property" that means as long as it is maintained, it requires a court order to seize it, and that a business with a domain name is entitled to all the rights and privileges or a "real" business(actual court orders to search or read domain email without holders permission, ect.) A very interesting judgement, I imagine this may go all the way to the Supreme Court of Canada. In the area of property, ISPs would not be able to take your site down without a court order as long as your paying for hosting. Just as a business can't be evicted as long as it pays the rent, without a court order. You would be able to sue in court for loss of access due to outages, as if the landlord blocked a door to a store. Or if you are hosting your domain on your own equipment, a real court order would be required to block DNS records. I imagine this has huge implications to Intellectual Property rights, Copyright, and legal copying/file sharing under Canadian Law. I imagine the US and the EU are going to have an apoplectic fit once the lawyers start really discussing this.
Domain names are extremely similar to company names. There already exists legal precedent to consider your company name the legal property of the company.
For example: that large company up in Redmond is called Microsoft. Some guy named John Microsoft brings them to court, claiming that he has the legal right to the company name of "Microsoft", since it is his legal name. The courts would disagree, and rule that the name "Microsoft" belongs to Bill Gates & co.
A similar case has been going on for many, many years here, over the domain name nissan.com. Details here.
I first read the domain name as "canadians exacts" and wondered if there's also a canadiansapproximates.org :-) ...
Then I noted that you can also split it in three words, and it started to make sense
The Tao of math: The numbers you can count are not the real numbers.
It's hard to know exactly what the judge had in mind (yes, I read the article).
I was reading the actual judgement, but it was too long.
This brings up some interesting points: if you have a property interest in a domain, then what do you pay the yearly fee for?
It must only be for server usage. By that standard, a registrar shouldn't be able to seize your domain if you don't pay the fee.
Or, perhaps, in order to recover their fee, they could auction the domain, and take their cut ($9). The rest is your money. So if a domain sells for $100k, you get $99,991.
I'm not a lawyer, but I play one on the Internet. Blog
Good point... at first I kinda liked the idea that domain names could be "owned" by the person that registers them (assuming registrar can still charge maintenance fees like a Co-Op landlord), but that last phrase of yours made me think of something...
...in a DNS system
What about other DNS systems? Anyone can setup their own root-server. For more cases, "somedomain.com" is a unique property on the net, but that's not technically accurate - it's only a unique property on a given DNS server (or possibly extended to that DNS network, though any server can hijack the name somewhat legitimately). Domain name hijacking is one of the techniques that parental control systems use... would that be a violation?
>You'd think they'd be more like trademark than property, in that respect? //
Trademarks are [intellectual] property and can be sold, rented, etc..
What? Just because this case may (almost certainly) will go to the Supreme Court of Canada means exactly nothing. The Supreme court will not, and does not, simply uphold lower court rulings as a matter of course. That's just speculative nonsense.
Power, on the other hand... they have it, but it costs an arm and a leg. Literally.
Where did you get that impression? I pay 5.9c/kWh off peak and 10.7 on peak (60% of my usage was offpeak, only 25% of my usage is peak).
This site http://www.ppinys.org/reports/jtf/electricprices.html shows the average US citizen pays a lot more than that.
Tesla was a genius. Edison however was a overrated hack who liked to torture puppies.
If you're now the owner of a particular domain, that means that there is no way that the registration can be stripped or a means of a registrar seizing the domain if payment is withheld.
The owner of a piece of real estate still has to pay property tax to the state.
No, you do not have it right. You have made the common error of imagining that it is the copyrighted work that is "intellectual property", the thing that is owned by the copyright owner. Actually, what is owned is the copyright itself, that is, the exclusive right to authorize copying of the work.
The analog of car theft would be not infringement, but the act of assuming the ownership of a copyright without the consent of the rightful owner. This could happen if a person were to fraudulently convince the state agency that administers copyrights that the owner of the copyright has assigned it to him.
Infringement is more like a trespass -- like someone finding your car unlocked and sitting in it. The copyright owner is still recognized as owner and is still for the most part enjoying the state's enforcement of his monopoly.
Please do not misread me as a defender of the justice of copyright law. That is a question for another time.
Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.
This overall case would seem to have two elements:
One is the conflict between trademark protection and property right.
The second is the horribly messy jurisdictional overlaps that occur in Internet related legal disputes.
If I acquire the domain name Googler.com legitimately because someone from the big G forgot to register that variant,
I now have a property right to that domain name.
But Google also has a trademark right to it (easily confusable etc etc) so under trademark law they ought to be able to
prevent me from using Googler.com in association with trade (at least in computer/advertising/software related things.)
Except that maybe I bought Googler.com while residing in, say, Canada.
So I have Canadian property rights to the domain name, apparently, and also I might be able to set up the town of Parish Ontario Googler search engine,
because that's a local and foreign business, compared to google.com
Hopelessly confusing legal mess really.
It really boils down to which party owns a 737 that can be rigged up with air-to-surface missiles, doesn't it.
Where are we going and why are we in a handbasket?
Neil Young, Rush, John Candy... that's all you'll ever need to know about that country.
And .. Pamela Anderson, Dan Aykroyd, Justin Bieber, Jim Carrey, Tommy Chong, James Doohan (Scotty) William Shatner (Kirk), Erica Durance (Lois in Smallville), Brendan Fraser, Natasha Henstridge, Margot Kidder (Lois in Superman), Howie Mandel, Rick Moranis, Matthew Perry, Jason Priesly, Keanu Reeves, Martin Short, Eugene Levy, Keifer Sutherland, Amanda Tapping (my fave!), Fay Wray, Leslie Nielson, Meg Tilly, and hundreds of other actors generally thought of as American.
Also dont forget Canadians created all the robotics on the shuttle and space station, Superman, IMAX, insulin, sonar, timezones, roller skates, chocolate bars, the pacemaker, trivial pursuit, electric streetcars, football goalposts, and of course the Blackberry.
We also helped you name the whitehouse by setting fire to the original.
Tesla was a genius. Edison however was a overrated hack who liked to torture puppies.
I was quite eager (as in "Isn't the eager beaver our national mammal, eh?") to see explanations of the Reverse Rick Moranis, Montreal Meatpie, and Saskatoon Totem Pole. But alas, instead I was served some witty "our site is having trouble" messages. Damnation.
Obi-Wan: "I felt a great disturbance in the Force, as if millions of voices suddenly cried out in terror and were sudden
Will this at least put ICE domain seizures on hold (presuming American judges hold to the same logic)? Seizing property is generally held to be a pretty big deal.
This is my signature. There are many like it, but this one is mine.
This is Canadian. Canadian and UK law don't have as much baggage attached to the concept of "property" as the US does. Through an accident of legal history, that Blackstone's commentaries were more available in America than other writings on law, American law and the American constitution attaches undue weight to property rights. The "due process" clause in the U.S. Constitution limits due process to "life, liberty, and property", which is part of why it matters so much whether something is "property". A leasehold, for example, is not property.
The US never had feudalism, where the lords owned all the property, and thus never had to get rid of feudalism. In the European countries that did, when feudalism went down, so did the emphasis on property rights. This remains quite real today. In Britain, (but not Scotland) there is a "right to ramble", to walk over undeveloped, uncultivated private land. Squatters in abandoned buildings have rights. Penalties for trespass are very low by US standards. Conversely, the rights of renters are stronger in England than in the US.
Canada generally follows English precedent in this area. "Properly" is not an absolute; it's a bundle of rights established by law and precedent. So that domains are "property" means less than it would in the US.
What has Canada given the world?
Donald Sutherland, Keifer Sutherland (Donald's son, and grandson of the guy who brought universal medical care to Canada), Jim Carry, Cirque du Soleil, UN Peace Keepers (created by Nobel Laureate The Right Honourable Lester B. Pearson, past Prime Minister of Canada), Shania Twain, Norman Jewison, Long Distance Telephony (The first long distance transmission was made in August 1876, between Brantford and Paris Ontario.), Wayne Gretzky, The Light Bulb (Edison bought the patent from the two Canadian inventors), Joni Mitchell, The Guess Who/Bachman-Turner-Overdrive (BTO), Superman, William Shatner, James Doohan (Scotty!), Insulin (Frederick Banting), and Basketball.
So, yes, that's all you need to know about Canada...
ttyl
Farrell
CAN-CON 2019 - Ottawa's only book oriented Science Fiction Convention! October 18-20, Sheraton Hotel, Ottawa, Canada h
For games/movies, the issue isn't ownership - it's the ability of companies to take AWAY your right to play the game you sacrificed resources to obtain.
For art in general, it's more of a business model argument - that they should have a way to make money akin to another profession. Again, legal ownership is a proxy argument, not the key issue.
Licenses and ownership arguments are about setting defaults in other arguments, who gets to take what from who. The status of these legal agreements change over time... it's just strange to see these agreements starting to reach into what name gets assigned to which number on a computer network (DNS), in terms of "ownership".
Seems a strange realm of ownership. As in, I own this association, and all DNS machines now have to make this association on my behalf, by power of law.
Ryan Fenton
Oddly though, I think that
This could happen if a person were to fraudulently convince the state agency that administers copyrights that the owner of the copyright has assigned it to him.
sounds a lot more like registering a fraudulent title to the car.
Pure theft of the car would be far more like destroying all copies of the work the copyright owner has. The copyright owner is still lawfully regarded as the owner in that case, just like with the car theft case, but down must track down a copy in order to fully utilize their ownership rights.
The big difference is that with a car, there is only one that could be tracked down, while with a copyrighted work, there are potentially many, and the owner may be able to use any of them.
Stylish sheet to fix many problems in Slashdot's D3: https://gist.github.com/801524
I'm not sure your analysis is correct.
Just imagine a nickname on IRC or anywhere else for that matter. People claim to own it. It becomes part of their identity and is irrespective to money.
So it makes sense to me that domains would be treated the same or even the system of names in your "some kind of network".
We show geeks how to get their dream girl at EyesOfOdessa.com
Unless you count case law. In which case there's a crapton of it.
I work for the Department of Redundancy Department.
On the bill I am thinking of, power has gone up from 15c/KWh to 20 c/KWh recently. I am not sure offhand if that is before or after they multiply KWh by 1.1.
That is as expensive as it is in Hawaii, the most expensive state in the US. Only this bill is in Ontario, where power generation is a LOT cheaper than in Hawaii.
-- IANAL, this isn't legal advice, and definitely isn't legal advice for you. Also, Squee!
Note: those are actual costs, i.e. take the price, divide by KwH. Not Generation costs.
-- IANAL, this isn't legal advice, and definitely isn't legal advice for you. Also, Squee!
I really hope you don't have to explain who Doohan and Shatner are to people on Slashdot.
I think you are remembering wrong. The prices I quoted are in Ontario from the latest bill I have sitting in front of me. Ontario with over 50% nuclear power is among the cheapest places for power in north america.
Tesla was a genius. Edison however was a overrated hack who liked to torture puppies.
Yea. I was just being clear. Canada also has a famous Michael Jackson, except he's white.
Tesla was a genius. Edison however was a overrated hack who liked to torture puppies.
I am not remembering wrong. I am looking at the bill on hydroone. The prices you quoted are what they formally say prices are, which generally means generation bill up to a certain amount. Divide your total bill by your kilowatt-hours. Even then, distribution costs vary depending on where in Ontario you are. Debt retirement charges, the result of massive mismanagement for years, also go into it.
-- IANAL, this isn't legal advice, and definitely isn't legal advice for you. Also, Squee!
more like registering a fraudulent title to the car
You are perceptive to notice this difference; it arises from the fact that a car is physical, and so subject to a physical theft without transfer of title. But a copyright is not a physical object; it is a legal right enforced by the state. One could effectively steal it from its owner only by fraudulently convincing others, including the state, that one owns it, which under a registration regime would most effectively be accomplished by getting it registered in one's name.
I'm afraid you have run off the rails with all the talk about destroying and tracking down copies. Destroying a copy or copies of a work is a non-event from a copyright standpoint. It neither infringes nor steals the copyright. And a copyright owner need not track down or even possess copies of the work he owns the copyright in to exercise his exclusive rights with respect to the work.
Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.
Here's the Judgment on Canlii: Tucows.Com Co. v. Lojas Renner S.A., 2011 ONCA 548 (CanLII) .
This dispute is about the service of a Statement of Claim (the document that initiates a claim). Once a claim has been served, there is an obligation to respond - otherwise the defendant may be noted in default and lose the right to defend themselves. Service of a Statement of Claim may only be completed on a foreign company in certain circumstances, namely where (in principle) the allegations in the claim are related to something in Canada. In this case, the issue was whether the claim related to personal property in Canada - i.e. whether the domain name renner.com was personal property of a Canadian company.
The Statement of Claim in this case was issued by Tucows (a Canadian company), who allege that Lojas Renner S.A (a Brazilian company) does not have any right to renners.com (which has been registered by Tucows). Lojas Renner allege that they've trademarked "Renner" and Tucows is violating that trademark by using the domain name renner.com (and therefore Lojas has a right to take the domain name away from Tucows).
A lower Court ruled that the Statement of Claim was not served on Lojas because the allegations did not relate to personal property of someone in Ontario. The Court of Appeal overruled that decision.
The Court of Appeal commented on the lower Court's ruling as follows:
[20] The motions judge set aside the service of the statement of claim and stayed this action on the grounds that there was no real and substantial connection between the defendant and Ontario and as such rule 17.02 was not engaged. In particular, the motions judge held that a domain name was not âoepersonal propertyâ within the meaning of rule 17.02(a), and that, being intangible, it was not âoelocated in Ontarioâ. Thus, she held that there was no presumption of a âoereal and substantial connectionâ, and that Tucows had failed to establish that such a connection existed in the circumstances of the case.
(emphasis added)
The Court of Appeal determined as follows:
[68] Rule 17.02(a) gives the court jurisdiction to settle controversies with regard to rights or claims against personal property. Personal property consists of both tangible and intangible property: see Brian A. Garner, ed., Blackâ(TM)s Law Dictionary, 8th ed (St. Paul: West, 2004), at p. 1254. See also Metlakatla Ferry Service Ltd. v. British Columbia 1987 CanLII 2748 (BC CA), (1987), 37 D.L.R. (4th) 322 (B.C.C.A.), in which the court held at p. 325 that the term âoepersonal propertyâ in s. 87 of the Indian Act, R.S.C. 1985, c. I-5, included intangible property, in this case a lease and the debt owing under it. Intangible property refers to personal property that cannot actually be moved, touched or felt, but instead represents something of value such as good will. In Manitoba Fisheries Ltd. v. R., 1978 CanLII 22 (SCC), [1979] 1 S.C.R. 101, the Supreme Court held that although good will is intangible in character, it is part of the property of a business just as much as the premises, machinery and equipment employed in the production of the product whose quality engendered it. As such, there is a presumption of compensation for the regulatory taking of this property.
[69] It seems to me, as well, that for purposes of jurisdiction, a domain name is part of the intangible property of Tucowsâ(TM)s business. In Williams v. Canada, 1992 CanLII 98 (SCC), [1992] 1 S.C.R. 877, at pp. 891-93, the Supreme Court developed what is now referred to as the âoeconnecting factorsâ test,[10] in which the situs of intangible property is determined by where it has the strongest contacts: see Canada v. Folster, 1997 CanLII 6344 (FCA), [1997] 3 F.C. 269 (C.A.), at paras. 15-18. In this case, the domain n
The US never had feudalism, where the lords owned all the property, and thus never had to get rid of feudalism
Actually we still have feudalism in the US. In most States, most property is owned 'in fee simple'. You only ever own a title to the land, you don't own the land itself (in allodium, historically available in Nevada and a few other States). Most often, the State is the landowner, and effectively he can take it back whenever he wants to. If you don't pay him rent on his land, he'll seize the title and throw you off his land.
We never really made much progress - we just instituted State feudalism instead of Lording feudalism. Besides the rent, we have to pay him almost half of our harvest, or he'll put us in a cage. Technically we have a say in who the Lord uses as a foreman, but about half the time we don't even get that.
We sing songs about the plantation and tell our kids how great it is.
My God, it's Full of Source!
OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
Ok, divide my bill by my total use and I get 14c/kWh. Even if you pretend the US utilities don't include things like delivery in their bill (which is over 30% of my bill) the Ontario prices are still in line with the US.
Tesla was a genius. Edison however was a overrated hack who liked to torture puppies.
Not entirely off the rails.
With a stolen car, the owner cannot utilize nearly any their rights.
Without a copy of the copyrighted work, the copyright holder cannot utilize some of their rights. For example without a copy, the copyright holder can still go after infringes, but would experience great difficulty in licensing the work to others, since in addition to a license, most licensees require an initial copy of the work, and telling them to buy it from one of the other licensees is unlikely to go over very well, and may not even be possible. Not to mention that if you are suing for infringement you basically need to register the work, which requires a copy. For works of US origins it is officially a requirement, although it is plausible that a court would waive the requirement if registration were not possible, but you would face a greatly increased burden of proof, since you would need to prove that you created the work, purchased the rights, or commissioned the creation of the work under the works-for-hire doctrine in order to establish holding copyright on the work, plus the normal burden of showing infringement.
Both cases (stolen car and lack of a copy) can be resolved by re-obtaining the item in question, either the stolen car, or a copy of the work.
They are by no means an exact match, but there is a distinct similarity between them.
Stylish sheet to fix many problems in Slashdot's D3: https://gist.github.com/801524
Now the real question is, do I also own the IP the domain name is pointing to if I have a static IP address, or am I leasing it?
Police protection of land and the things on it is also a service, yet holders of title to land are entitled to it.
I find the ruling funny since it can not be Enforced against a .com .net ( and maybe a few others ) since the US Government has already dictated that they own and control it. believe it was handed over to the department of commerce back in 2002 or 2004.
We have seen the results of the above ruling by the act of the custom's serve in taking domains this year.
I can not find the ruling but I'm still searching.
if you see me, smile and say hello.
The passwords you set on the servers are completely independent of the domain name. You could as well put a password on a server only accessible via IP address. And if you lose the domain name, you don't lose the server.
You do not put your server's access permission into the domain name system. You put it on the server.
The Tao of math: The numbers you can count are not the real numbers.
Traffic=moving cars
There, preprocessed that for you. Now pls. start reading!
...a stunned silence fell upon the hall.
Bollocks. .com and .net are operated by Verisign, Inc. Formerly a hugely overpriced certificate authority until they sold off everything but registry operations to an overpriced bloated antivirus company.
For a site about things like basic rights, Slashdot users sure do like to censor "dissent".
The registrant, as listed in the admin contact would be the owner of the domain name. Any other legalities would be dictated by the registrants contract with anyone they gave rights to. This seems rather obvious.
I have to do this the long way, but let's start off with http://www.internic.net/ which is " InterNIC is a registered service mark of the U.S. Department of Commerce "
then we go to http://en.wikipedia.org/wiki/InterNIC look at the section internic and icann, again it's a contract agreement for services, the DOC retains control of it.
then we shoot over to the recent seizure warrant used by ICE, http://www.scribd.com/doc/45473003/ICE-affidavit-partial
I wish I had the note's where it's mentioned in the DOC that they own it lock stock and barrel. But the current circumstantial points that I might be correct.
if I find the correct documents I will reply again.
if you see me, smile and say hello.
You're cherry picking historical info just to make your point correct. Note the following from your Wiki article.
The Internet Network Information Center, known as InterNIC, was the Internet governing body primarily responsible for domain name and IP address allocations from 1972 until September 18, 1998 when this role was assumed by the Internet Corporation for Assigned Names and Numbers (ICANN)
And from interNIC.net.
InterNIC is a registered service mark of the U.S. Department of Commerce. It is licensed to the Internet Corporation for Assigned Names and Numbers, which operates this web site.
InterNIC is merely a service mark owned by DoC. They license it, the service mark, to ICANN, no contracting of any services - ICANN completely assumed control of the technical administration of the internet. The Department of Commerce has exactly zero control over it.
The US government has control over exactly one zone: . (No, that's not a typo. The zone is a fullstop). This means that the best the US government can do is knock an entire TLD out of the DNS. Like .com, or .br, or .ru. Even that zone they farm out to Verisign to maintain.
For a site about things like basic rights, Slashdot users sure do like to censor "dissent".