This case is fascinating. A quick recap: Kentucky attempted a property seizure of 141 domain names allegedly involved in gambling on the theory that the domain names themselves constituted “gambling devices” under Kentucky law and were therefore illegal. The state held a forfeiture hearing where anyone with an interest in the “property” could show up to defend their interest in the property; otherwise, the State would order the registrars to transfer “ownership” of the domain names to Kentucky. No individual claiming that they own one of the domain names showed up. Litigation began when two industry associations (iMEGA and IGC) claimed to represent unnamed persons who owned these domain names (and another lawyer showed up during litigation claiming representation of one specific domain name).
The subsequent litigation gets a bit complicated; suffice it to say that the issue of standing was what got to the KY Supreme Court: could an association that claimed it represented an owner of a domain name affected in this action properly represent this owner in court without identifying that owner and that the owner was indeed the owner of an affected domain name?
The Kentucky Supreme Court said no, that there needs to be at least one identified individual owner that will suffer harm before the association can stand in stead, ruling,
Due to the incapacity of domain names to contest their own seizure and the inability of iMEGA and IGC to litigate on behalf of anonymous registrants, the Court of Appeals is reversed and its writ is vacated.
And on the issue of whether a piece of property can represent itself:
“An Internet domain name does not have an interest in itself any more than a piece of land is interested in its own use.”
Anyway, it would seem that the options for next steps include, 1) identifying at least one owner that would suffer harm, then motion back up to the Supreme Court (given that merits had been argued at the Appeals level), or 2) decide that the anonymity of domain name ownership in this case is more important than the fight over this very weird seizure of domain names.
As a non-lawyer, I wonder if it’s possible to represent an owner as a John Doe with an affidavit of ownership of an affected domain name submitted.
UPDATE (2010-03-19T00:07:07 EDT): Check the comments for why a John Doe strategy won’t work when the interest in anonymity is to avoid personal liability rather than free expression.
A weird bonus for people that have read this far: if I open the PDF of the opinion on my Mac in Preview.app or Skim.app (two PDF readers), the “SPORTSBOOK.COM” entry in the listing of the parties on the first page is hyperlinked. However, I don’t see this in Adobe Acrobat Pro or Reader. Seems like the KY Supreme Court is, likely inadvertently, linking to one of the 141 domain names. Of course, Preview.app and Skim.app might be sharing the same library that causes this one URL to be linked… I’m not good-enough of a PDF sleuth to figure it out.