Help Please

[Dave Zan]

Hal, my point is the registrar doesn't really care if you think a domain name is
property or not. Their only obligation is to the contracting party, namely the
registrant or whoever signed up with them, and their contract likely has that
no-property-rights clause.

When you finally go and your loved one or whoever talks to the registrar, tells
them the circumstances, and wants to gain access to that domain name, the
registrar might have a process addressing that or, worse, tell him to go get a
court order. Whichever way that person takes, the registrar is not going to do
anything for him until he somehow satisfies that registrar's requirement/s.

Of course, if your loved one has the login details, then that should solve that
potentially bureaucratic problem.

[DaddyHalbucks]

Hal, my point is the registrar doesn't really care if you think a domain name is
property or not. Their only obligation is to the contracting party, namely the
registrant or whoever signed up with them, and their contract likely has that
no-property-rights clause.

When you finally go and your loved one or whoever talks to the registrar, tells
them the circumstances, and wants to gain access to that domain name, the
registrar might have a process addressing that or, worse, tell him to go get a
court order. Whichever way that person takes, the registrar is not going to do
anything for him until he somehow satisfies that registrar's requirement/s.

Of course, if your loved one has the login details, then that should solve that
potentially bureaucratic problem.

It's not simply my "opinion."

Courts have deemed domains property.

Separately, all domain owners should have their legal affairs in order with wills, up to date WhoIs info, and succession plans.

[DNQuest.com]

Hal, read this...

http://www.wired.com/politics/law/news/2000/08/38398

"There is simply no evidence establishing that a domain name, including sex.com," meets the definition of property "as required by the law of conversion," the judge wrote in his ruling, citing his own words from a May decision in a separate suit brought by sex.com's original owner, Gary Kremen, against domain registrar Network Solutions.

[DaddyHalbucks]

Read This:


21 Apr 2004

VeriSign settles Sex.com lawsuit

Chris O'Brien, San Jose Mercury News

VeriSign will pay about $15 million to settle a lawsuit that claims it improperly transferred the Sex.com domain name.

The settlement comes after a decade-long legal battle waged by entrepreneur Gary Kremen to prove he was the rightful owner of the lucrative Internet address. Perhaps more significantly, the case established the legal precedent that Internet domains were indeed property and that owners could sue to protect their rights. (Emphasis added)
...
http://sexdotcom.info/archive/articl...y-21-04-04.htm

Hal, read this...

http://www.wired.com/politics/law/news/2000/08/38398

[mediawizard]

Really interesting insights and articles. Thank you gentlemen.

While I'm not particularly convinced either way, I am of the opinion that providing immediate family to registrar logins is the best way forward.

Would that be an acceptable assumption?

[DNQuest.com]

...indeed property and...

Notice it says "property" and not "real property". This was established through conversion. I believe it was argued that sex.com was an intangible property subject to the conversion. Additionally, I think this was settled out of court, so there may not have been an official ruling in this matter. John or someone, could you clarify this please?

Domains will become real property once the IRS has a classification for domains, and when that happens, you can bet your bottom buck that the government will try to tax it. Imagine having to pay a sales tax on all you domians you buy or sell? Better yet, how about yearly "property tax" on the governments appraisal of the domain?

[Dave Zan]

Additionally, I think this was settled out of court

Yes it was. The last decision stated something along the lines of what you've
said.

It so happens that Mr. Carreon and other people have interpreted it based on
whatever they know (or maybe believe?). Of course, if those interpretations
don't coincide with Judge Kozinski's, well...

While I'm not particularly convinced either way, I am of the opinion that providing immediate family to registrar logins is the best way forward.

Would that be an acceptable assumption?

While not necessarily the "best", it can be the most practical. But if you're the
belt-and-suspenders type of person, then it won't hurt to have a will or so as
an extra measure.

Okay, okay, I'll simply say yes...

[DaddyHalbucks]

Really interesting insights and articles. Thank you gentlemen.

While I'm not particularly convinced either way, I am of the opinion that providing immediate family to registrar logins is the best way forward.

Would that be an acceptable assumption?

My guess is you would want to provide login info to your executor or your estate's lawyer.

Make sure to get a real legal opinion; I am not a lawyer.

[Brett Lewis]

NSI and Register.com could etch in stone that the Earth is flat, but it would not change the basic nature of the planet.

Not really a fair or accurate analogy. The Earth exists. It is empirically round.

A domain name is a creature of contract. To be registered, a registrant must agree to a set of terms and conditions that define a set of legal rights that the domain holder acquires through registration. The registration is subject to limits on use, payment, term, maintenance of accurate contact information and other factors. Without the Services Agreement, the domain name does not exist.

You are essentially arguing that, "a domain name is property, so saying it's something else does not change the fact that it is property." You are assuming a conclusion without proving it. The fact is that what a domain name is is decided by the courts.

In New York, and every other jurisdiction, save for the 9th Circuit, where the only decision is by a federal court interpreting a state law issue of first impression, i.e., Sex.com, a domain name is not considered by the courts to be property. In fact, seven judges on three different courts in New York, including the First Department Appellate Division, have unanimously agreed that domain names are creatures of contract, not property. Given NSI's registration services contract, which was not in effect at the time that <sex.com> was initially registered, most questions regarding the nature and scope of rights in and to domain names are governed by contract. As a result, no one should assume that domain names will be treated as "property" and passed by operation of law to surviving family members.

If a domain name is included in a Will, hopefully, a registrar would respect that choice, although legally, I am not sure that the registrar would have an obligation to renew the registration unless the registration agreement requires that it do so.

[Dale Hubbard]

Not really a fair or accurate analogy. The Earth exists. It is empirically round.

A domain name is a creature of contract. To be registered, a registrant must agree to a set of terms and conditions that define a set of legal rights that the domain holder acquires through registration. The registration is subject to limits on use, payment, term, maintenance of accurate contact information and other factors. Without the Services Agreement, the domain name does not exist.

You are essentially arguing that, "a domain name is property, so saying it's something else does not change the fact that it is property." You are assuming a conclusion without proving it. The fact is that what a domain name is is decided by the courts.

In New York, and every other jurisdiction, save for the 9th Circuit, where the only decision is by a federal court interpreting a state law issue of first impression, i.e., Sex.com, a domain name is not considered by the courts to be property. In fact, seven judges on three different courts in New York, including the First Department Appellate Division, have unanimously agreed that domain names are creatures of contract, not property. Given NSI's registration services contract, which was not in effect at the time that <sex.com> was initially registered, most questions regarding the nature and scope of rights in and to domain names are governed by contract. As a result, no one should assume that domain names will be treated as "property" and passed by operation of law to surviving family members.

If a domain name is included in a Will, hopefully, a registrar would respect that choice, although legally, I am not sure that the registrar would have an obligation to renew the registration unless the registration agreement requires that it do so.

Smack, bang; right on the money. Thanks Brett.

[jberryhill]

Good one, Brett.

What a lot of folks don't realize about the Sex.com case is that the federal appeals court put the question to the CA Supreme Court as what is called a "certified question". Basically, what that means is that the federal court had a novel issue that would be normally be determined by the law of that state - but there was no applicable precedent on the question.

The CA Supreme Court declined to answer, so the Ninth Circuit Court of Appeals went off and did their own thing, which any US lawyer knows, is something that the Ninth Circuit is best known for.

I would add to Brett's excellent points that when we are talking about "property", we are usually talking about one of a bundle of rights that we collectively and generally refer to as "property". As a word, "property" isn't very enlightening.

In the sex.com case the question was "can we treat a domain name as property for the purpose of a conversion claim" (conversion is the civil name for 'theft').

In other cases, such as the Umbro case in Virginia, the question was whether we can treat a domain name as property subject to seizure by a bankruptcy creditor. The VA Supreme Court was adamant that a domain name was an incident to a service contract, and thus was not property for that purpose.

You can't just wave around the decision of a federal appeals court which is only relevant to a couple of western states, and then only in federal cases, and say "Oh, here is some all-purpose precedent on the question of whether a domain name is property." The Virgina Supreme Court determines what is or is not property in Virginia, and the Ninth Circuit Court of Appeals most certainly does not.

Now, yes, in a particular situation, you can cite decisions from other jurisdictions as what is called "persuasive authority", but that Sex.com case is limited to (a) federal lawsuits in (b) the states with the number "9" on them in this drawing:

http://www.usdoj.gov/usao/eousa/kids...es/mapusct.gif

So, Hal, how much are you assessing your domain names for your state's property tax? How much state sales tax are you paying when you are buying and selling this "property" of yours?

[DaddyHalbucks]

I was wrong. I'll defer to the lawyers that domains are not property.

[Dave Zan]

John, Brett, is it okay if I rather "copy" both of your posts on this subject for
a future blog entry I'm writing? Just that they're both crystal clear, and even
trying to remotely paraphrase them is rather an exercise in futility.

While on the subject:

Given NSI's registration services contract, which was not in effect at the time that <sex.com> was initially registered

So the original NSI had no contractual obligations with Mr. Kremen when the
domain name was transferred to Mr. Cohen? If I understood that right, then...
sheesh...I'm scratching my head here...

[Brett Lewis]

Dave,

Correct. Back in 1994, or whenever it was that Mr. Kremen first registered <sex.com>, NSI did not have a services agreement.

You can copy.

[jberryhill]

I'll defer to the lawyers that domains are not property.

Don't get too carried away. The main point is that "tis property" or "taint property" is not a useful categorization. In fact, the entire "property" argument generally arises in a context devoid of practical consequences. This particular thread, involving inheritance and succession, is a rare exception.

When we talk about "property", we are talking about a bundle of rights, and not one thing. Whether you peel out a piece of that bundle and say "we are going to treat X as if it were property in this context" that doesn't make X "property" or "not property".

So... is a domain name "property" for the purpose of a conversion claim in the federal courts of the Ninth District? Yes. It is.

Is a domain name "property" for the purpose of a bankruptcy creditor's claim in the state of Virginia? No. It isn't.

The question here is whether a domain name is inheritable or descendible. The question is not whether a domain name is "property". The word only comes up because real and personal property is inheritable and descendible. (we use "inherit" and "descend" to distinguish between situations where there is or is not a will)

Can you lease it? Can you claim an easement in it? In what state is it located? Can your spouse claim it as a marital asset during your divorce? Where is your title document for it? If you have no heirs or successors, does the state get it? Can the state or the federal government claim it for public use under eminent domain?

I kid you not. There is an attorney for whom I have a great deal of respect who maintains, passionately, that if you don't renew your domain name, then it should become the property of the state where you live, just like any other abandoned property. On that point, I believe he's a complete loon. But he's otherwise a very bright and capable guy.

I know another lawyer who passionately maintains that domain names are "speech" subject to the First Amendment.

I believe the entire argument is pretty much a distraction, such as whether light consists of a wave phenomenon or a particle phenomenon. Determining whether any new thing fits into a pre-existing box is something of a waste of time, since many things are simply sui generis. As noted in, for example, the Tao Te Ching, Chapter 1 "The unnamable is the eternally real. Naming is the origin of all particular things."

The entire illusion of a universe of "different things" apart from the One originates in the naming of things. Any "thing" which is my property, does not possess a measureable or discernible characteristic which makes it "mine". It is only "mine" to the extent that I believe it is mine and you agree with me, but it is not inherent in the thing to be "mine", "yours", or anyone else's. The thing exists and does not know that it is owned.

(anything I post can be copied elsewhere, as far as I am concerned - I do not know whether there are any relevant terms of use of the forum, however)

To be registered, a registrant must agree to a set of terms and conditions that define a set of legal rights that the domain holder acquires through registration. The registration is subject to limits on use, payment, term, maintenance of accurate contact information and other factors. Without the Services Agreement, the domain name does not exist.

Compare and contrast to a "lease" - which is a property interest defined by a set of contractual terms.