Re: [ga] DNSO ICANN board member

[Kent Crispin <kent@songbird.com>]

On Fri, Sep 01, 2000 at 11:52:00AM +0100, Louise Ferguson wrote:
> 
> > Sure -- that's known as "eminent domain".  The government can indeed
> > take away your land, to, for example, build a power plant, whether it is
> > in use or not.  This happens all the time.
> 
> Think there's an element of 'public good' in there somewhere Kent, not
> private greed

Doesn't matter.  The question was whether it could happen -- not the 
motives behind it.

> > You can test this easily -- just stop paying your property taxes.
> 
> Kent, prehaps you should take a 'high school year abroad' before trying to
> apply US law to the rest of the world. (we don't have property tax here in
> the UK and local taxes attach to the person, not property)

Please don't be deliberately dense: obviously I wasn't applying US law
to the rest of the world -- I was merely citing an example.  Moreover, I
rented a house in England many years ago, and I do have some first-hand 
experience with the complexities of the English legal system as it 
applies to real property.  And in fact, your point exactly supports the 
point I was making -- the property "rights" in real property are not 
only intrinsically complex, they vary from country to country.

> > "Ownership" and "property rights" are *not* simple things.
> > Buying real property, for example a house, is a very complicated affair
> > legally, and it is vastly different from registering a domain name.
> 
> Of course it is vastly different - who said it was the same?

The person I was replying to made the analogy, not me -- I was trying to
illustrate why it is a dangerous analogy to use.  But it is extremely
common: *many* people, including you, speak of domain names in terms of
analogies with real property, as if the "rights" that are applied to
real property automatically apply.  But obviously, they don't.

In general, one has to be very careful reasoning by analogy.  The real 
estate *metaphor* is very seductive in this context -- I use it 
frequently myself.  But domain names are *not* real estate.

> But there are certain principles of natural justice that have been adopted
> into the legal code of many countries, including in the areas of land law,
> commercial law and contract law.

...and of course, intellectual property law -- I can't imagine why you
left that one out :-).  And (as Michael McNulty pointed out), there are
interesting principles that one can derive from water rights law.  If we
rifle through the world's legal codes there are *lots* of interesting
principles of justice etc we can find that might or might not apply to
domain names, and clever people such as yourself (and trademark lawyers
and lobbyists) expend a lot of energy digging up theories that support
*their* interests. 

The point I am trying to make is that *none* of those interests is
sacred.  TM interests are certainly not sacred; using domain names as
"free expression" is not sacred; an individual's ability register a
domain name for any particular reason is not sacred.  There are
reasonable views of the use of domain names that exclude any of these
particular interests.  Domain names are relatively new phenomena, and 
it just isn't clear what legal theories should apply.

However, it is quite common, especially on these lists, for people to
use flowery language concerning "rights" and "justice", and to decry the
opposition as being "greedy".  Clearly, some if not most TM owners are
greedy; clearly the primary motivation for name speculation and
cybersquatting is greed.  Clearly many people who want to use domain
names as a means of expression are acting in their own particular self
interest -- that's close enough to greed for me.

So what we really have here is a bunch of greedy interests doing battle. 
Some of them fight by shouting about "justice" and "rights" as loud as
they can; some of them fight through lobbying and legal manipulation. 

Incidentally, loudly proclaiming that one is in favor of "rights" and
"justice" is a common rhetorical gimmick.  Everybody is in favor of
justice and rights, and nothing is proven by how strenuously you shout
about them.

-- 
Kent Crispin                               "Do good, and you'll be
kent@songbird.com                           lonesome." -- Mark Twain
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