Re: [ga] Domain names as observed (was Tucows Response to Cochet tiTransfer Letter)

[Jeff Williams <jwkckid1@ix.netcom.com>]

Leah and all assembly members,

L Gallegos wrote:

> On 28 Jul 2001, at 21:27, William S. Lovell wrote:
>
> >
> >
> > L Gallegos wrote:
> >
> > > Joop, may I say once again that there are no "property" rights in a
> > > domain name itself.  Rights in the use of the name are conferred by
> > > the registrar/registrant agreement and that is where a registrant
> > > should look prior to registering the domain.  However, just because
> > > a domain name is not property, per se, it does not mean that there
> > > are no rights in it.  Again, those rights are determined by the
> > > registration agreement and can differ from registry to registry.
> > >
> > > Leah
> >
> > I would have to disagree with this entirely.  To say that "rights in
> > the use of the name are conferred by the registrar/registrant
> > agreement" would imply that the registrar had rights to confer, which
> > it does not. Rights to the use of the registrar's facilities are what
> > are conferred by that agreement, without regard to the domain name
> > itself which, if created ("conceived," "invented," etc.) by the
> > registrant, could only be the intellectual property of that
> > registrant.   I realize, of course, that these agreements say
> > otherwise, but it is fundamental to the law that one cannot convey
> > what one does not own, so any portion of any document that pretends to
> > say otherwise would be null and void on its face.  Too bad no one has
> > the wherewithal (or the ***) to prove that.
>
> Since what you are contracting for is a registration (a service), the
> registry/registrar can set conditions for the use and term of that
> registration.

  No they can't entirely.  The use of any Domain Name and the content
that may be a part of that use is strictly the "Domain" of the registrant
under US law.

>  It is not ownership of the name itself in any case.  It
> is a service provided under certain conditions.  Whether that
> service can be cancelled for whatever reasons stated in the
> agreement is dependent on that agreement.

  That agreement must meet in the US anyway, any and all legal requirements
as proscribed by the GATT agreements, the NAFTA trade accords, civil
liberties statutes, as well as contract law.  ICANN's current registration
agreements are currently under some pressure in several of these
areas of law presently.  WIPO/ICANN's UDRp also has some
serious flaws along these lines as well in a international scope.

>  Cancellation of the
> service would amount to revokation of the use of the domain name.

  This is one of several reasons why we [INEGroup] are strong
believers if a SROOTS and Shared registry system where no single
registry or root structure could negatively impact ecommerce by way
of Domain Name revocation under these potential circumstances
from occurring.

>
>
> In any case, a registrant should not have to be concerned about
> whether he will have the use of the domain.  Unless the law has
> been broken in some way and and a court order is issued to revoke
> the use of the name, the legitimate registrant would have the use of
> the domain.
>
> A property manager for an apartment complex does not
> necessarily own the complex, but has the rights to lease
> apartments within that property.  The tenant does not own the
> apartment, but does have whatever rights are conferred under the
> lease agreement.  He may or may not be able to sublet the
> apartment, sell, will or trade his rights in the lease contract, use it
> for something other than his domicile, etc.  It would all depend on
> the lease contract.  As long as the tenant continues to pay his
> "rent" and/or fees and does not violate the terms of the lease
> agreement, he has the right to enjoy the use of that apartment.
>
> I don't see a registration as anything different, really, except that
> there is no physical property involved, but just a contract for a
> service.
>
> Leah
>
> >
> > IAAL; this is not legal advice but a scholarly observation.
> >
> > Bill Lovell
> >
> >
> > >
> > >
> > > On 29 Jul 2001, at 0:30, Joop Teernstra wrote:
> > >
> > > > At 22:37 27/07/2001 -0400, L Gallegos wrote:
> > > > >   Registrants, IMO, should be able to feel
> > > > >secure in the use of a registered domain.
> > > >
> > > > I am glad to hear you say that. :-)
> > > > As far as is legally proper, in the interest of the Domain Holders
> > > > but also of the stability of the DNS, they should *be* secure. Any
> > > > argument that Domain Names are not the registrant's property, to
> > > > dispose or transfer as the registrant sees fit, serves to
> > > > destabilize the DNS.
> > > >
> > > >
> > >
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> > possibly be explained at:
> > "WHAT IS": http://whatis.techtarget.com/
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> >
> >
>
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Regards,

--
Jeffrey A. Williams
Spokesman for INEGroup - (Over 118k members strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
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