Re[2]: [ga] Domain names as observed (was Tucows Response to Cochet tiTransfer Letter)

["William X. Walsh" <william@userfriendly.com>]

Hello Joanna,

The argument is moot.

Unless the congress passes new laws to make domain names a form of
property, they are not property, and do not meet the legal definition
of property.

Sex.com
U.S. District Court Judge James Ware dismissed a theft claim --
technically called a "conversion" claim -- against the convicted felon
accused of hijacking sex.com, ruling that Web domains aren't property,
and therefore can't be stolen.

"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.

http://www.wired.com/news/politics/0,1283,38398,00.html


Sunday, July 29, 2001, 9:54:46 AM, Joanna Lane wrote:

> 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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-- 
Best regards,
William X Walsh <william@userfriendly.com>
Userfriendly.com Domains
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