Sphinn - Domains Are NOT Real Estate, KW Research as I. Property: Internet Law Experts Speak Out!

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Domains Are NOT Real Estate, KW Research as I. Property: Internet Law Experts Speak Out!

Went Hot: August 21, 2008 - 10:44 am
Posted By: Gab 92 days ago
Topic Type: News Story (Jump to http://seoroi.com)
Category: Search Marketing

Eric Goldman and Mark J Rosenberg speak out on the common myth of domains = real estate, as well as SEOs' legal duties to clients and whether kw research = intellectual property.

12 Comments

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from NickWilsdon 91 days ago #

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Interesting to get the legal POV. I can understand why domainers stick to the "real estate" analogy though. First it hints at the fact it is limited, i.e. the prime real estate will go first. Secondly it helps in the arguments people throw at them for parking domains. They are right, if you owned a piece of land you wouldn't have people shouting at you to give it back or develop houses there!

As a Registrar though I've always felt the analogy falls down when domainers start talking about rights or ownership. Domains never really belong to registrants in my book, they are simply leased or rented for a fixed period. If you don't pay the rent, or registration fee they can be re-leased or returned to the Registry. So I see domainers not as a group of real estate owners but as renters; the Registry owns all the title deeds.

from Gab 90 days ago #

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OMG - Nick Wilsdon saw something new on my blog ;D lol jk.

from NickWilsdon 90 days ago #

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Well now you mention it Gab...

Just kidding ;)

from johnandrews 90 days ago #

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Funny how lawyers represent at conferences. In their roles, they argue cases. There is no definite, except as history demonstrates. So with issues like these, backed by almost no precendent, what have they got to say we don't already know?

On the statement that domains are property "Domains are like any other personal property." I'm surprised he said that. In many jurisdictions (states) domain names are not recognized as property under property law. I understand that is a serious issue should some things get argued in the courts.

As for Nick's comments above, I think they demonstrate how serious the issue is. Nick (a registrar) thinks he "owns" the domains and simply rents them to registrants. I know a few domainers and corporations that would disagree.

If I have a 3 million dollar domain and I learn that Nick thinks he owns it, what must I do? Why place 3 million worth of trust in a contract with Nick's registrar, where Nick wrote the contract and I had no part in negotiating the terms? When, exactly, did the registrar assume "ownership" of an infinite number of permutations of letters in front of a TLD, which may or may not be "created" by someone with $8 to invest, and how, exactly, did the current market value of that domain transfer to him as "owner"? I bet you cant use the ICANN docs to make that case in a US court.

Until the law catches up and/or insurers address these issues, we need to remember a domain is nothing but an entry in a database. Should be plenty for lawyers to talk about, so I'm concerned that the SES presentation wasn't more meaty than this report suggests.

from NickWilsdon 90 days ago #

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@John

Sorry I think you misunderstand my point. I believe that the Registry owns the domains, as a Registrar (or RSP) I am just an agent for the leasing contracts. The organisation acting as Registry for the extension can be changed through contract with ICANN but they essentially own all the title deeds.

My POV comes from dealing with *many* cases where the registrant has failed to renew their domain name. Often after several notices and left way beyond the redemption period. In their opinion, they "own" the domain name, so what right does anyone have to take this away from them? Fact is, if they do not renew the registration the domain can be re-leased to someone else without the consent of the origional registrant. This would not be possible if they "owned" the domain.

As a domainer though, you do "own" the lease. That gives you rights over the property and allows you to resell the lease onto others. It should also give you rights to keep the domain (against companies trying to trademark generic terms for example). If you do not pay the renewal though, you loose all rights to the domain.

I'm sure, as you say, many domainers would disagree with me. However I don't notice them disagreeing with me when they pick up expired domains off the many lists available. I've had many previous owners screaming down the phone at me, when they find out a domainer has picked up their domain name and parked it. I have to calmly explain that the new owner was entitled to do this.

If domainers feel so strongly about domain ownership though, I would expect them to return domains taken in this type of situation. Without a 500% markup. This has not been my experience.

from Gab 89 days ago #

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"Should be plenty for lawyers to talk about, so I'm concerned that the SES presentation wasn't more meaty than this report suggests."

For the record, this was an interview I took the initiative of doing with Eric and Mark. They're both on the SES legal panel, but this is not conference coverage. I'm in Montreal, Canada atm.

As to whether or not domains are/not the legal property of their registrants, here's how I view it, by analogy to... real estate (lol).

In common law jurisdictions, the King/government technically owns all land by "allodial" title. The person living on it has title in "free and common soccage" and is, for all practical intents and purposes, the owner. [If you want more info/details, I encourage you to look up the history of real property in the common law; it's quite interesting.]

However, if the holder in free and common soccage should die intestate and with no heirs, then their land "escheats" to the government. The gov't regains full title. And it can then obviously resell/lease/transfer/etc. the property to someone else.

from netmeg 89 days ago #

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So is a domain really all that different from a phone number?

from Gab 89 days ago #

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You don't buy most phone numbers - you buy service. It could be closer to an 800- phone number.

from johnandrews 89 days ago #

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@Nick yes that's "registry" vs. "registrar". My point is that property law is not clear at all when it comes to domains, and so "ownership" is a difficult topic. Once recognized as such, it needs to be addressed but so far it really hasn't been.

If I am a US citizen and I "buy" land in Europe, do I "own" it? It depends on the country. In many cases I have the ownership papers, but there are a million ways that I lose that "ownership" because I am not a citizen. In the end, property can be taken by governments acting on behalf of "native peoples". Insurance is the answer, and control might be a better term than ownership. Once we consider it control, we recognize that is why nationshave armies... to keep "control" of property.

@gab sorry I had the impression this was conference reporting.

from NickWilsdon 88 days ago #

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@John

I do see your point and as we both know, this is not the first time the topic has been raised. The most recent time for me was on the Tucows list when they introduced the auctioning of domains off within the expiry/redemption period. Many of the old-timers, who see domains as 'owned' up to the point they are publicly dropped, were horrified that Tucows would put them up for auction during this time.

Of course Registrar auctions had been introduced by many others without the extensive safeguards that Tucows eventually introduced them with (origional owners could redeem their domains in the usual 40 day redeption period and then a further 30 days if the auction had been successful).

I see your point about property and control. As you know, there seem to be an increasing number of ways domains can be taken from you - and the US government is the worse culprit. The Snowe bill will allow them to confiscate domains on phishing/trademark grounds and there is even a recorded case when the US government took away someone's Cuban domains. The scary thing there was that they belonged a UK citizen who operated in Spain. The mistake he had made was to use a US Registrar, which subjected him to US laws.

I can't see insurance helping someone in that situation. Who would insure "Cuban" related domains with knowledge of that case. Maybe the solution is just to register everything in Russia? ;)

from johnandrews 87 days ago #

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@Nick Insurance is not to prevent loss but to help manage risk. Risk that is managed, no matter how risky it is, can be traded bought and sold. Risk that is unknown/unmanaged is crazy. Investors won't touch it... only speculators and wildcatters.

If you can lock the downside risk to some insured level, you can make a deal.

from Gab 86 days ago #

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Good points there John and Nick - just learned a boatload reading your comments!