About three months ago there was a post on Slaw about a decision by a court in Kentucky to seize over 100 domain names used by Internet gambling enterprises, on the grounds that the domain names were illegal gaming devices.
This decision has just been overturned by the Kentucky Court of Appeals, which prohibited the enforcement of the order. The reasons for decision (16 pages) are available from the Electronic Frontier Foundation site [PDF] (EFF was an intervenor). EFF’s preliminary comment is here.
The enforcement of criminal and regulatory laws against organizations operating in cyberspace is a challenge for governments and law enforcement agencies everywhere. Many of them seek proxy enforcement against people or things that are within their physical grasp. The Kentucky case was a creative attempt that appears to have fallen short. Just as well, perhaps –- if KY could seize the domain names, why not any other jurisdiction in the world? And what can be done with them by the person seizing them? What does ‘seize’ mean anyway for a domain name?
Orders have been made in rem against domain names in the jurisdiction of the registrar, usually in cybersquatting disputes. In the case under discussion, Kentucky was not the jurisdiction of the registrar. And what happens in such cases is that the registrar is ordered to do something with the domain name compatible with its usual activities in respect of the name, like attributing it to X rather than Y.
We have just reviewed on the ULC-ECOMM email list whether domain names were property, and decided (I think) that whether or not they were property in a traditional legal sense, they could have a value recognizable in law when they were transferred (and that “transfer” has a meaning when applied to them). This case raises a different aspect of the property question, with a different result.
Does anyone think the result would have been different in Canada, or that it should have been different in Kentucky?
Is there much dispute in Canada whether a domain name is property? I've seen a few cases on it which seem to take it as a given that the domain name is a form of intangible property (e.g. Molson Breweries v. Kuettner (1999), 3 C.P.R. (4th) 479 (F.C.)), beyond its potential trade-mark value.
The Kentucky case seemed to involve quite specific statutory language, namely, whether a domain name was a "gambling device", rather than "property" as such.
Well, the CIRA agreement for the .ca domain expressly says that the domain name is not property. That the registration authority says so, or even that those who buy/lease/borrow/rent domain names agree that it is so, does not make it so, I suppose.