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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."
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...
Why do we need liquidity for domain names?
The Tao of math: The numbers you can count are not the real numbers.
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?
No, but bad enough that Tucows would want its head-quarters in Canada rather than there. From Wikipedia:
Tucows (originally an acronym for The Ultimate Collection of Winsock Software, a name which has long since been dropped) was formed in Flint, Michigan, USA in 1993. It incorporated in Pennsylvania and headquartered in Toronto, Ontario, Canada.
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!
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.
That's completely untrue. You need some speculators in the stock market because there's a lot of businesses that need the proceeds of stock sales before they're a reliable bet and during times of risk.
But this is a completely different matter. Domain names are for the purpose of not having to type an IP address in to access a site. Having people licensing sites with no intention of using the site does nothing helpful.
As for the ruling, as much as I typically like to see people sticking it to corporations this was an idiotic court decision that will have real consequences in the long term. 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.
By that ruling, Tucows owns it. They registered it previously, and the court says it is still theirs and theirs alone to do with as they please.
Actually the ruling says that Tucows as the register does not have to turn the domain name over to the person in Brazil, who demanded the domain(because the domain name is the same as his last name). The domain name was in use, and also hosted 14 active domain email addresses that did not have to be surrendered by the person that registered the name with Tucows. The court ruled that the domain name and the domain email have a "real value" which makes them equal to property(as in I can't demand you give me your car because my last name was ford).
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
>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.
By that ruling, Tucows owns it. They registered it previously, and the court says it is still theirs and theirs alone to do with as they please.
...The domain name was in use, and also hosted 14 active domain email addresses that did not have to be surrendered by the person that registered the name with Tucows.
The article also mentions :
Tucows acquired the domain name when it bought MailBank.
So the answer to the question of who owns it is still Tucows. Whether you want to call the original registration domain speculation or not, the end result is the same in that the registrar is in this case the owner as well. Hence at this point there is no "person that registered the name with Tucows", as the registrant and registrar are one and the same.
FWIW, there is a little more information on mailbank.com on the Tucows wikipedia entry.
Damn_registrars has no butt-hole. Damn_registrars has no use for a butt-hole.
Attaching an IP to the domain and opening up a web server could be implied invitation.
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.
Yes, but as often happens in cases where there is a panel, only one of them gave a judgment, the others just agreed.
If anyone is interested in what the ruling actually says, the judgment is here with the relevant part starting at [41]. The judge seems to have noted that in both the US and UK, domain names are already being treated as a form of intangible property in law (like patents, copyrights etc.), which could, as discussed elsewhere in the comments, lead to greater "rights" for those who have "bought" a domain name; making it more like renting than licensing.
The reason the court needed to consider this was due to jurisdictional issues; the claimants needed to show a "real and substantial connection with Ontario", i.e. that the case concerned property there. The case seems to be mainly about procedure rather than substantive law. [For the record IAALS]
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.
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.
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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.
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.
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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.
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OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
But domain names are not there for investment. They are there for simplifying access to internet resources.
The Tao of math: The numbers you can count are not the real numbers.