April 18, 2014

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Domain Names Can't Defend Themselves

Today, the Kentucky Supreme Court handed down an opinion in the saga of Kentucky vs. 141 Domain Names (described a while back here on this blog). Here’s the opinion.

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.

Comments

  1. Anonymous says:

    take steps to protect your privacy when making a domain name and vpn everything. Fk all censorship.

    • joehall says:

      sure, but in this case they’d just seize each new domain name you’d register (if it goes to its logical conclusion)

  2. Anonymous says:

    I wonder if they had transferred ownership into an LLC or trust if that would be enough. The LLC would have standing to sue. I don’t think the state would have grounds to subpeona the membership agreement.

    Anyone know for sure?

  3. Barry says:

    So if someone takes Joe’s suggestion in the last paragraph there, what happens when someone else decides (as John Doe #2) to contest ownership anonymously with their own sworn affidavit?

    Would it be possible to actually prove one’s prior ownership of the domain name at that point without revealing one’s identity?

    • joehall says:

      Actually, someone (who will remain nameless lest they say they don’t mind being credited) pointed out that what these domain name owners are trying to avoid is personally liability, they’re not fighting for their right to speak anonymously. That is, a court will argue that you can’t just hide your identity when someone wants to sue you.

      However, I wonder about being able register a domain name (a key element of expression on the internet) anonymously. I guess the type of speech here (commercial gambling enterprise) would then come into play.

      I definitely think the idea of incorporating under an LLC would have the advantage of separating out the liability and allowing the LLC to come forward and say “we own SPORTSBOOK.COM and will be harmed”. I don’t think this will avoid the disclosure of the identities of the officers of the LLC… but I got from the proceedings that the merits have been heard at the Appellate level (and I don’t think there’s any discovery for this kind of writ proceeding that could be substantially different if there was a person or LLC suddenly involved).

  4. rp says:

    I know I’m way behind on this, but what constitutes a court of competent jurisdiction in a case like this? Do registrars just have to obey courts in their own countries, in countries with which their home country has signed appropriate treaties, any court in a jurisdiction where their domain colorably does business? Whoever ICANN says they have to obey?

  5. Brad says:

    Doesn’t sound any different from being able to prosecute Mr. One Hundred Thousand Dollars (and keep it even when its owner hasn’t been convicted of anything and the seizure never had probable cause to begin with).

  6. Anonymous says:

    Looking at the PDF file, it appears that it was created in a two stage process. First, the pages of the original document were scanned, then the resultant images were OCRed. Each page is constructed from an image, with its corresponding OCRed text overlayed. The text is in an embedded font with no glyphs, only metrics. So, the text won’t be rendered onto the page, but it can be selected, copied and pasted from the document.

    I can’t see any reason for a hyperlink. I’m not a Mac owner, but I’m guessing Preview.app and Skim.app are trying to be clever, turning what they consider to be very plain text into something that’s clickable. Why this doesn’t happen to the other domain names, I don’t know.