DNForum - Domain Sales, Domain Forum, Domain Appraisals, Domain Registrars - View Single Post

**jberryhill** · 01-24-2008, 11:18 PM

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?

01-24-2008, 11:18 PM	#31 (permalink)
jberryhill Philadelphia Lawyer Last Online: 09-18-2009 01:17 AM iTrader: (1) Join Date: Oct 2002 Posts: 2,987 DNF$: 6,350	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? __________________ John Berryhill Ph.d., esq. John-AT-johnberryhill.com Please do not send private messages via dnforum.com, email me directly.