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

[Joanna Lane <jo-uk@rcn.com>]

on 7/29/01 1:07 AM, L Gallegos at jandl@jandl.com wrote:

> 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

Leah,

The difference is that the apartment rented by the tenant was not created by
him in the first place. OTOH, the Registrant may well create the Domain Name
he is then being asked to rent. The fact that one cannot exploit a DN on the
internet without first entering into a contract for services does not mean
that entering into that contract is the defining moment of conception of
"example.com". In all cases origination pre-exists registration, if only by
a millisecond.

While example.com may not have been registered for use on the internet,
nevertheless, it could have been exploited in numerous other media without
any reference to the relevant registry. Last time I looked, nobody but the
general public owned all the rights to domain names that have yet to be
invented, (excluding those that relate to trademarks etc.), and therefore
any one of us should be able to use what we invent in all existing (and
hereinafter invented) media, not just the ICANN root.

The process by which a registrant thinks up a new DN prior to registration
is surely a creative process, an original artistic and literary work. A real
life example of that would be "bazoomer.com", which features as the product
placement storyline in David Mammet's fictional film "State and Main" (BTW,
an excellent movie). Another example is VeriSign's own "the-bug-reaper.com"
commercial.  Neither of these domain names is active, and probably never
will be, their purpose is simply to exist in an artistic and literary
context as part of fictional work that is being exploited extensively in the
public domain using other media - theatrical release, broadcast TV, DVD,
Video etc. 

These examples, and others, may enter the public conscious without ever
being accessible in the DNS roots or appearing on a single end user screen.
Therefore, it's seems obvious to me that strictly speaking, it is possible
(albeit not desireable) for a dotcom Domain name to exist and be exploited
without any formal registrar service contract with VeriSign.

Regarding property rights, in the bazoomer.com example, we can assume that
since bazoomer.com is a fictional entity, neither distributor nor filmaker
has any intention of either selling bazoomers or applying for a bazoomer.com
trademark, hence the DN simply allows exclusive exploitation rights in all
media for the name itself, as would be acquired for any other artistic work
- a line of poetry, a bar of music or an artists sketch. Whereas the
stateandmain.com domain is actively promoting a real life physical product
of a film, and is registered to the films distributors as one would expect,
the domain name that relates to the non-existant company described in the
film, and is inactive, bazoomer.com, belongs to the film's creative heart,
writer and director, David Mammet. I think this reflects an important
distinction by Hollywood lawyers.

In the case of Verisign's "the-bug-reaper.com", again it is a fictional
representation, the key creative element of their current ad campaign, which
storyline features two actors thinking up domain names. Obviously VeriSign
reserved this domain without any intention of actually selling bug-killing
products and services, but would indeed have needed copyright in the use of
idea in an artistic and literary sense, in order to broadcast it on
television as a commercial.

IANAL, but it seems to me that at least those Domain Names that are
specifically created as part of a work of literary fiction, do come with
copyrights that may be enforceable through use of other media as well as or
instead of a service contract or trademark.

I am not connected with any of the persons or entities mentioned in this
post and all comments are based on my personal opinion.


Regards,
Joanna


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