I write this as I am on my way to Kentucky to represent Internet Commerce Association at a press summit about Kentucky’s seizure order of 141 domain names. ICA also filed an amicus brief with the court.
First, ICA is not involved in this issue to support or criticize gambling. However, does anyone really believe the Governor is motivated to save Kentuckians from the evils of gambling? It seems clear that this is about protecting a local industry from foreign competition. I could imagine the Governor of Michigan trying something like this for automobile manufacturers 30 years ago.
Our General Council received a lot of help crafting the brief from some of the best IP attorneys in the world especially as related to domain name law. ICA and everyone who participates in internet commerce, suppliers and consumers alike, have benefited from the generous contribution of legal advice on this issue and others from the following attorneys.
John Berryhill
John Brock
Bret Fausett
Ari Goldberger
Paul Keating
Stevan Lieberman
Howard Neu
Steven Sturgeon
ICA’s brief represents the legal opinion of leading IP experts and it speaks for itself. I am humbled to comment on the legal aspects of the case. However, in very brief summary we oppose the seizure of domain names based upon the following legal principals.
- Statute referencing gambling devices is not relevant to domain names.
- There has been no definitive ruling on the question of whether the ownership of a domain is a “property” right, and the case law is very much divided on the subject. Therefore it is not clear that domain names could be garnished under state law which limits garnishment to property.
- Jurisdiction – Even if these domain names could be determined to be property and subject to gambling devices statute, they are not in Kentucky.
- Federal government is deeply involved in Domain Name regulation including rules related to domain name disputes. Kentucky’s action usurps the federal government in that role.
- This seizure is about much more than gambling. It threatens all internet commerce and free speech worldwide.
I think that it would be better for me to talk about how I think this seizure will affect individuals and businesses around the world if the seizure order is upheld. Many people think that law enforcement is the key to maintaining “law and order”. However, enforcement only plays part of maintaining order. Society requires reasonable laws and interpretation or judgment of law. Strong enforcement of unreasonable and unpopular laws succeeds only for a time. Society will eventually rebel and the cost of enforcement will exceed the resources of a society and then either the law will be changed or government will be changed. Examples of historic failure of unreasonable and unpopular laws include the Boston Tea Party, Prohibition, Slavery and Apartheid.
If this order is upheld and other governments decide to adopt the same domain name seizure tactic, individuals and businesses of Kentucky (and the rest of the world) could be subject to the laws and regulation of every jurisdiction in the world. If this order is upheld, personal injury attorneys will probably be lining up at state capitols, county commissioner offices, and mayor offices all across the country, maybe all over the world.
Based upon the principles of this case, a real estate broker in Louisville could be required to be licensed in every state of the USA and subject to real estate regulations of each state including any reporting requirements of each state. But, that is just the beginning, if there are separate licensing or regulatory requirements in some cities and counties, then the broker should be ready to fulfill those too.
Wait, we are still just getting started. Kentucky’s seizure order subjects non-US businesses to Kentuckian licensing and regulation requirements. Maybe the Kentuckian broker should plan to be licensed in every city, county, state, providence country in the world. There are probably governments in Canada that make it illegal to advertise real estate without proper disclosures in English and French. Of course, there is one easy way for the broker to avoid this mess. The broker can simply pay damages to every government in the world and then block visits from anyone outside his home jurisdiction.
Hold on just a bit more, we still haven’t discovered all of the problems related to this broker’s internet marketing. His website, along with hundreds of others, is advertised at Courier-Journal.com. Now, the Courier-Journal will also need to pay damages and block visits by anyone outside of Louisville. Multiply this by every business subject to any licensing or regulation requirements anywhere in the world and you start to get the scope of the problems this type of overreaching government action could cause. Of course individuals are subject to law also and personal websites may need to comply with laws regarding content that may be illegal somewhere in the world. How would US first amendment rights help you if China seized your domain name and took away your free speech platform?
If this order is allowed to stand, how long do you think this will go on before society decides that local governments cannot control website content for the whole world? I do not think that it will take too long, but in the mean time, legitimate businesses who do not want to be subject to this kinds of abuse will probably move there domain name registrations to countries that will stand up to an overreaching state action like this one. US registrars and hosting companies will lose business. The Governor should withdraw the seizure order and the personal injury attorney who filed it, should apologize to us and go back to Chicago.