Originally posted by izopod
I'm not convinced Domain Names are in fact property. We are merely leasing them from the respective registrars.
The "Do We Actually Own Them" test has to be applied before "property" status can be granted IMHO. The public actually owns the Domain Name System.
Point very well noted, and yet I believe, mistaken. The public owns the electromagnetic spectrum within the bounds of the nation, and vast tracts of mineral and forest reserves. Miners and loggers contract with the FCC, BLM and Forest Service harvest the fruits of these resources at a net loss to the nation. These resources are tangible, and fall within national borders.
Domain names, however, exist only within the structure of the Net, and through the creation of ICANN, have been internationalized. No nation asserts, or can assert legitimate rights of ownership over the Net.
So there is no sound basis for saying that any "public" less than all six billion of us owns the Net or the domain name system.
One thing we know -- if something is owned by everyone, it will be exploited inefficiently. This phenomenon is know as the "tragedy of the commons."
The traditional way to allocate rights wisely, so that they will be exploited efficiently, is by giving people property rights. Only then will Adam Smith's "invisible hand" begin to move our economy efficiently. Thus, the allocation of property rights is the beginning of wise administration of resources.
Even Verisign is leasing the rights to sell these names.
Yes, and the local County Recorder doesn't own the property in the County, either. They just keep the records of title. That doesn't mean that the dirt isn't property.
Domain names are simply a form of advertising and sales tool. Nothing more, nothing less.
They are use to advertise, like trademarks, which are also property. Indeed, trademarks are a form of super-property, which give the holder powers far beyond the ownership of mere objects. If you steal my dollar, and I sue you, I get back one dollar. But if you steal my trademark, I recover three times what you earn using my trademark. Hardly what I'd call "nothing more."
The remedy to recoup costs for such and outtage is already covered under most business protection plans (I am assuming).
There's no law on this that I know of, and there won't be until someone sues an insurance company. And it will be an uphill battle.
If domain names are classified as "property" what would stop the states from taxing you, just like they do now for owning physical property? I don't have a problem paying property taxes, but I do have a problem with states that don't keep a budget. More money in the state coffers= more money spent on pet projects.
Agree agree agree. If it's property, it can be taxed. But it can also be sold, secured, used as collateral, willed to your estate, etc. That makes property worth more, because it becomes more liquid. We add liquidity to our economy by designating things as property, and we have a trade-off. As far as states not budgeting, who can argue with that. But we'd have a lot more money for at-home use if we didn't pursue wars of empire.
Owning more than a few domain names would be prohibitive to most people do to the state enforcing it's right to tax "property". Corporations would not be as affected. They would be able to buy many domain names no matter how much they are taxed. This would give them an even greater edge in the online market given the fact that domain names have "keyword" functions. This is a fact that can't be dismissed.
I disagree. I think corporations are more advantaged by declaring domains to be not property, so they can more easily take them away from individuals. Which is why NSI fought and still fights the battle to claims that domains are not property.
One more thing. If domain names are "classified" as property, can you imagine the signficance of future WIPO decisions?? The whole TM debate would definitely be thrown into a quandry. Domain names are currently seen as "Intellectual property" governed under Intellectual property laws, but if domain names become "regular property", I can see a case being made for someone to keep "microsoftwindowz.com" under local property laws.
All of the above mistakenly assumes that there is any identifiable difference between "intellectual property" and other forms of "personal property." Such an oversimplification leads to substantial misunderstanding, and in your case, unwarranted fears.
Nothing is gained by making them property in my opinion. You can trade them and sell them already. You can buy a domain name, and do anything you want with it already.
Which is precisely why they ARE property already. In California, and many other states, property is simply defined as "anything that can be owned." Something must be owned before it can be traded or sold. One who owns nothing cannot give a bill of sale, for they have nothing to transfer. The battle has merely been to bring the law into harmony with actual practice.
And something very substantial is gained by establishing the legal status of domains as property. For only property can be stolen, and only property can be restored to its owner. Where there is no property, there can be no theft. Where there is no theft, the court has no power to restore ownership. Which was precisely Steve Cohen's argument in the Sex.Com case. But he lost, because it was a bad argument.
Thanks for your thoughts, which I do not mean to dismiss. However, I have spent thousands of hours thinking these ideas over and over and over. And I appreciate the opportunity to discuss them.
Yours truly,
Chas
Online Media Law, PLLC
