legal status of UK domains

[Whois-Search]

Anyone have any thoughts on this ?

http://www.legalweek.com/ViewItem.asp?id=29783


"The legal status of internet domain names in the UK is set for much-needed clarification ahead of a potentially far-reaching Court of Appeal ruling."

"One issue in the case was whether an internet domain name is an item of property and, in particular, whether interference with a domain name can give rise to a cause of action under the Torts (Interference with Goods) Act 1977."

"Nominet UK - which acts as the registry for around 4.9 million publicly available domain names ending '.uk' - is seeking permission to intervene in the appeal to assist the court in reviewing the legal issues in a technical and commercial context."

 

[bb99]

"One issue in the case was whether an internet domain name is an item of property and, in particular, whether interference with a domain name can give rise to a cause of action under the Torts (Interference with Goods) Act 1977."

Can someone legal translate this sentence in to layman's terms for me please - particularly the implications/relevance of this interference under the 1977 Act...

 

[tmsdomreg]

Anyone have any thoughts on this ?

http://www.legalweek.com/ViewItem.asp?id=29783

"One issue in the case was whether an internet domain name is an item of property and, in particular, whether interference with a domain name can give rise to a cause of action under the Torts (Interference with Goods) Act 1977."

When you register a UK domain name you agree to Nominet's T&Cs which include:

"...Nature of domain names and the register
10 A domain name is not an item of property and has no ‘owner’. It is an entry on our register database reflected by our nameservers which we provide as part of this contract..."

http://www.nic.uk/registrants/legal/terms/

However... as BB99 stated: "...Can someone legal translate this sentence in to layman's terms for me please - particularly the implications/relevance of this interference under the 1977 Act..."

Are you there, JAC ?

Peter

 

[Jac]

When you register a UK domain name you agree to Nominet's T&Cs which include:

"...Nature of domain names and the register
10 A domain name is not an item of property and has no ‘owner’. It is an entry on our register database reflected by our nameservers which we provide as part of this contract..."

http://www.nic.uk/registrants/legal/terms/

However... as BB99 stated: "...Can someone legal translate this sentence in to layman's terms for me please - particularly the implications/relevance of this interference under the 1977 Act..."

Are you there, JAC ?

Peter

You called?

As I keep saying IANAL but the implications of this appeal reach far beyond domain names. If the court were to decide that a domain name is 'goods' or property then this would undoubtedly overflow into other areas. Under "The Torts (Interference with Goods) Act 1977" a collective description "wrongful interference with goods" covers conversion, trespass to goods, negligence resulting in damage to goods or to an interest in goods.

But all of this would only apply if the Court actually finds that a domain name can be classified as "goods". We don't know yet, but it will be an interesting appeal. And as most courts don't seem to understand the nature of domain names or the DNS, it makes complete sense (to me anyway) for Nominet to seek permission to intervene in the appeal; to assist the court in reviewing the legal issues in a technical and commercial context.

As the particular article referred to states: "the implications of extending the law of conversion to wider categories of intangibles may reach beyond the operations of the internet — they might equally apply to analogous technologies, such as the allocation of telephone numbers."

Regards
James Conaghan

 

[grandin]

Nominet stance

ok jac...wahts Nominet stance...are they saying it should remain non property?

You:-

But all of this would only apply if the Court actually finds that a domain name can be classified as "goods". We don't know yet, but it will be an interesting appeal. And as most courts don't seem to understand the nature of domain names or the DNS, it makes complete sense (to me anyway) for Nominet to seek permission to intervene in the appeal; to assist the court in reviewing the legal issues in a technical and commercial context.

As the particular article referred to states: "the implications of extending the law of conversion to wider categories of intangibles may reach beyond the operations of the internet — they might equally apply to analogous technologies, such as the allocation of telephone numbers."

I write:- Value should imply property...why would anyone pay so much for things that they dont own...misrepresented i think

Some companies pay £100,000's for domain names and if they forget to renew they will lose it...instead of making it property why don't Nominet offer a lifetime renewal fee....like an annuity? Alternatively like a leasehold flat make it 999 years lease with a annual maintenance charge

Lee

 

[Whois-Search]

And as most courts don't seem to understand the nature of domain names or the DNS, it makes complete sense (to me anyway) for Nominet to seek permission to intervene in the appeal; to assist the court in reviewing the legal issues in a technical and commercial context.

How can Nominet review itself ? Maybe they should send Tony Willoughby along instead! Otherwise people will take more legal action against Nominet.

 

[bb99]

How can Nominet review itself ? Maybe they should send Tony Willoughby along instead! Otherwise people will take more legal action against Nominet.

I think Judge John Deed should be asked to look at this one... and the DRS as well

 

[olebean]

You called?

As I keep saying IANAL but the implications of this appeal reach far beyond domain names. If the court were to decide that a domain name is 'goods' or property then this would undoubtedly overflow into other areas. Under "The Torts (Interference with Goods) Act 1977" a collective description "wrongful interference with goods" covers conversion, trespass to goods, negligence resulting in damage to goods or to an interest in goods.

But all of this would only apply if the Court actually finds that a domain name can be classified as "goods". We don't know yet, but it will be an interesting appeal. And as most courts don't seem to understand the nature of domain names or the DNS, it makes complete sense (to me anyway) for Nominet to seek permission to intervene in the appeal; to assist the court in reviewing the legal issues in a technical and commercial context.

As the particular article referred to states: "the implications of extending the law of conversion to wider categories of intangibles may reach beyond the operations of the internet — they might equally apply to analogous technologies, such as the allocation of telephone numbers."

Regards
James Conaghan

I have to agree with much of what James writes.

Classifying domains as "property" may in some ways be reasonable for the industry.

Does that mean Nominet will change T & C to accommodate the ruling or will they attempt to adjust T & C in an attempt to bi-pass it?

As a personal issue, I do not welcome widening the categories beyond the operations of the internet. In doing so, it serves corporate more than consumers.

Hoey

You cannot reasonable expect Nominet not to attempt to "involve" themselves in the ruling. As we witnessed in the meeting, they appeared to struggle with some legal argument.

 

[grandin]

Property

Maybe things are meant to be...quite frankly I do not know how I have allowed myself to be side tracked from my business in respect to the DRS and trade mark rights BUT things are just meant to be.........My business will be launching in sept a number of seminars for my clients...investing in online property...domains. So to make the item property and potentially mortgageable would be the icing on the cake...

I will be touting for your help in return you may get some biz if you know your domain stuff

Lee

 

[Jac]

How can Nominet review itself ? Maybe they should send Tony Willoughby along instead! Otherwise people will take more legal action against Nominet.

I am not suggesting Nominet should review "itself" and I have never suggested Nominet should review itself. I am specifically suggesting that Nominet has a right to give its expert opinion to the Court so we may perhaps see some clarification of something the courts clearly do not have much expert knowledge of. The court (in this instance) will undoubtedly look at all aspects and recriminations before making its own decision in this specific case.

Personally, I would be happy to see some precedent set in the issue of 'property' in the courts, if only to stop the constant speculation on what a domain name is or isn't. But as I've said a fair few times before; be careful what you wish for; because for every one thing a court rules in favour of, it inevitably affects more than just that one specific thing. That's the law of cause and effect.

Regards
James Conaghan

 

[Jac]

On the issue of "value"...

I write:- Value should imply property...why would anyone pay so much for things that they dont own...misrepresented i think

Lee

There is 'value' per se in a telephone number - particularly if it brings in loads of sales enquiries - but the telephone number itself remains the property of the Telco provider; so it isn't 'property' in itself. IMO domain names are like telephone numbers; they are an entry on a database assigned or loaned to a specific subscriber or registrant. The 'value' in domain names (IMO) is only in what the buyer thinks they are worth, not what the seller wants for them. So, it seems reasonable to say it is a 'buyer's market'. The anomaly in all domain name sales is that you are not actually 'selling' a tangible asset, you are 'transferring' an intangible. At least, that's how it seems to stand at the moment.

Regards
James Conaghan

 

[olebean]

Lee

There is 'value' per se in a telephone number - particularly if it brings in loads of sales enquiries - but the telephone number itself remains the property of the Telco provider; so it isn't 'property' in itself. IMO domain names are like telephone numbers; they are an entry on a database assigned or loaned to a specific subscriber or registrant. The 'value' in domain names (IMO) is only in what the buyer thinks they are worth, not what the seller wants for them. So, it seems reasonable to say it is a 'buyer's market'. The anomaly in all domain name sales is that you are not actually 'selling' a tangible asset, you are 'transferring' an intangible. At least, that's how it seems to stand at the moment.

Regards
James Conaghan

James

I am not sure you can describe the amount and value of sales as anomilies.

Equally, I can subscribe to the view that in some ways a domain is like a telephone number, yet it is like many other assests (whether tangable or otherwise)

As for them being an entry on a database etc.. That is the creation of a domain, once created the history is kept in one form or another. As for the rules, I cannot agree that T&C should influence the decission in this case.

 

[sneezycheese]

In support of the appeal, the courts’ attention will no doubt be drawn to the Californian decision of the US Court of Appeals for the Ninth Circuit in Kremen v Cohen [2003], which held that a domain name registrant had an intangible property right susceptible to a claim for conversion.

Interesting reading...

http://caselaw.lp.findlaw.com/data2/circs/9th/0115899p.pdf

 

[olebean]

Interesting reading...

http://caselaw.lp.findlaw.com/data2/circs/9th/0115899p.pdf

Interesting article, I am not sure that would influence British courts

 

[Beasty]

Interesting reading...

http://caselaw.lp.findlaw.com/data2/circs/9th/0115899p.pdf

Spot on Sneezy - and it's no coincidence that the Defendant in this case was Network Solutions - whose role regarding .com at the time equates to Nominet's for .uk.

The impact was whether or not they would have to pay (a big out of court) settlement for falling for the forged documents that left Mr Kremen without the rather valuable sex.com domain. One wonders therefore how appropriate it would be for Nominet to hold themselves out as an impartial experts when this issue is being decided?

The comparison with telephone numbers made earlier in the thread holds some water, but in my view only a limited amount. To my mind a phone number equates more to an IP address. The domain name is more like the 1-800 FLOWERS etc. styling that seem more popular in the US than they do here. Put it another way, has there ever been a succesful TM infringment case in the UK over a phone number? Or a confusingly similar phone number? 1-800 FLOWERS was an unsuccesful claim - but I have never heard of a claim similar to say Phones4U/Phone4U - with the big corporate saying the little guy chose the number just because their number was similar to theirs. We all know wrong numbers are dialed - but the number alone is not (so far as I know) ever seen as a trade mark. Simply receiving a call from a wrong number would not be seen as a tort; whereas receiving traffic to a domain name has been - rightly or wrongly.

To my mind that is a crucial difference - if a domain can (of itself and without any associated use) be seen as an article of deception as in "One in a Million" - then that distinguishes it from a phone number. It also leads one towards a view that it is, of itself, property.

Likewise I am with Lee - if something has value and there is a market that makes that value reasonably predictable - then I am struggling to see why they should not be mortgagable in the same way that patents or trade marks are.

As I understood it from the LegalWeek article, LJ May has already referred to the sex.com case in considering whether to grant leave to appeal - so that would suggest that (hopefully) the Court of Appeal are going to look at the wider picture.

 

[Jac]

Are "rights" mortgagable?

Spot on Sneezy - and it's no coincidence that the Defendant in this case was Network Solutions - whose role regarding .com at the time equates to Nominet's for .uk.

I personally believe NetWork Solutions was completely at fault in accepting the forged letter of transfer in this particular case but that is more a moral judgement than a legal one (IANAL).

I just happen to believe it was wrong of them not to apply more diligence in that specific instance.

The comparison with telephone numbers made earlier in the thread holds some water, but in my view only a limited amount. To my mind a phone number equates more to an IP address.

For the sake of clarity, an IP address belongs to the ISP or provider too. IP numbers are only assigned/loaned/leased to the end user and the provider usually has a right to change it/them if necessary (usually for technical reasons).

To my mind that is a crucial difference - if a domain can (of itself and without any associated use) be seen as an article of deception as in "One in a Million" - then that distinguishes it from a phone number. It also leads one towards a view that it is, of itself, property.

Likewise I am with Lee - if something has value and there is a market that makes that value reasonably predictable - then I am struggling to see why they should not be mortgagable in the same way that patents or trade marks are.

I am of the opinion that one has "rights" in a domain name, even if (currently) they do not or cannot own it. This is why I believe 'rights' are the issue in the DRS as opposed to whether one has a right to ownership, as in property.

Do I believe all DRS decisions have been right? No, I don't. But then, neither do I believe all court decisions have been. The hard truth is that someone somewhere has to make these decisions and usually we have the right to appeal, and even if there is no apparent right to appeal, we can take our grievance to the House of Lords or the EU if necessary. The proviso already established in court seems to be that one must follow due process (eg: DRS) before approaching the courts for things like judicial review, and it is my understanding that judicial review can only be granted if the entity being complained about has not followed its own policy and procedures. (IANAL applies).

Regards
James Conaghan

 

[Beasty]

I personally believe NetWork Solutions was completely at fault in accepting the forged letter of transfer in this particular case but that is more a moral judgement than a legal one (IANAL).

I just happen to believe it was wrong of them not to apply more diligence in that specific instance.

Absolutely agree with you - when set out in a Court judgment it looks even more absurd.

For the sake of clarity, an IP address belongs to the ISP or provider too. IP numbers are only assigned/loaned/leased to the end user and the provider usually has a right to change it/them if necessary (usually for technical reasons).

I am of the opinion that one has "rights" in a domain name, even if (currently) they do not or cannot own it. This is why I believe 'rights' are the issue in the DRS as opposed to whether one has a right to ownership, as in property.

Do I believe all DRS decisions have been right? No, I don't. But then, neither do I believe all court decisions have been. The hard truth is that someone somewhere has to make these decisions and usually we have the right to appeal, and even if there is no apparent right to appeal, we can take our grievance to the House of Lords or the EU if necessary. The proviso already established in court seems to be that one must follow due process (eg: DRS) before approaching the courts for things like judicial review, and it is my understanding that judicial review can only be granted if the entity being complained about has not followed its own policy and procedures. (IANAL applies).

I'm not going to comment right now on the DRS if that's OK!

I was commenting on the wider law and how the Courts might see things. As Lee says, there is one immediate issue in relation to raising capital against domains as security. There may be further issues in relation to Nominet's contract with Registrants and possible issues of exposure to liabiity if they made a mistake. I hasten to add that I would not expect them to make one as crass as the one NS made in sex.com!

One interesting thing to notice on revisiting the sex.com Judgment is the number of "interested parties" who had representation at the hearing - essentially they seem to be domain registrant groups.

 

[Whois-Search]

Shall we request the transfer certificate for sex.co.uk and see if it comes ?

Better make my "domain name will" who am I going to leave all these .co.uk to ..........

 

[Jac]

I was commenting on the wider law and how the Courts might see things. As Lee says, there is one immediate issue in relation to raising capital against domains as security.

As a matter of history, there was a time around 1997/2000 when .com companies were wildly (and I mean wildly) exaggerated in worth by some over-enthusiastic and totally speculative market pundits. The .com bubble burst on 10th March 2000 and a lot of companies simply went out of business. The point is, I doubt very much if any market realist would now see a domain name, in itself, as a way of raising capital because there really is little or no security in them. IMO it is not the domain name that has an intrinsic value, it is what you do or have done with it.

One interesting thing to notice on revisiting the sex.com Judgment is the number of "interested parties" who had representation at the hearing - essentially they seem to be domain registrant groups.

I believe domain registrant groups (aka stakeholders) have a right to question and a right to expect an above average level of commitment and integrity from the UK Registry; but I also happen to believe that some of our expectations go far beyond what is reasonable at times, especially our criticisms of Nominet's policy and procedures as they are currently written. (Mea culpa.) By all means let's try and change them for the better, but let's also be righteous in our own demands of the systems which are created in good faith and in an attempt to be fair to all.

One will never please all of the people all of the time and some of the people are too quick to judge when they themselves have skeletons they would not want others to rattle as much as they rattle Nominet's. Nominet lives in a damned if you do and damned if you don't kinda world and I believe it is doing its best in the face of oftimes unreasonable criticisms.

Regards
James Conaghan

 

[Beasty]

As a matter of history, there was a time around 1997/2000 when .com companies were wildly (and I mean wildly) exaggerated in worth by some over-enthusiastic and totally speculative market pundits. The .com bubble burst on 10th March 2000 and a lot of companies simply went out of business. The point is, I doubt very much if any market realist would now see a domain name, in itself, as a way of raising capital because there really is little or no security in them. IMO it is not the domain name that has an intrinsic value, it is what you do or have done with it.

I can not say that I agree with you there. There are people who are more expert in this than I am - but somewhere on this site is a list of prices paid last year and in other years for .uk domains. Perhaps not the $12-14 million reportedly paid for sex.com - but it strikes me as domains (notably generics and short acronymns) have an intrinsic value often reaching 4 or 5 figures.

I believe domain registrant groups (aka stakeholders) have a right to question and a right to expect an above average level of commitment and integrity from the UK Registry; but I also happen to believe that some of our expectations go far beyond what is reasonable at times, especially our criticisms of Nominet's policy and procedures as they are currently written. (Mea culpa.) By all means let's try and change them for the better, but let's also be righteous in our own demands of the systems which are created in good faith and in an attempt to be fair to all.

One will never please all of the people all of the time and some of the people are too quick to judge when they themselves have skeletons they would not want others to rattle as much as they rattle Nominet's. Nominet lives in a damned if you do and damned if you don't kinda world and I believe it is doing its best in the face of oftimes unreasonable criticisms.

Again I'm a bit confused. I was refering to the fact that interested parties made their own representations in the sex.com case - sensibly realising that a registry can not be all things to all men and so taking responsibility for putting their own case. In this type of situation, Nominet will have a vested interest that can not always be the same as others who have an interest in the outcome.

I take your comments to mean people should not rely on Nominet to necesarily be able to look after their interests at all times - that at times they may fall short. I would agree - since I was not suggesting that anyone should rely on it to look after their interests. The rest of what you say leaves me a bit baffled.