On November 10th the US District Court for the District of Columbia granted ICANN’s motion to quash a writ of attachment and a related motion for further discovery in a politically charged case in which private plaintiffs sought to seize control of Iran’s .IR country code top level domain (ccTLD). The litigation was brought under a US law that allows victims of terrorism and their families to seize the assets of foreign nations that funded the related terrorist acts. While most of the plaintiffs were targeting Iran the decision also covered the ccTLDs for Syria and North Korea.
In its Order in the case of Stern v. Islamic Republic of Iran the Court wrestled with the issue of whether a ccTLD could be attached in satisfaction of a judgment. In reaching its decision, the Court stated:
There is little authority on the question of whether Internet domain names may be attached in satisfaction of a judgment. Indeed, no reported decision of any American court appears to have decided the specific issue of whether a ccTLD may be attached. The Virginia Supreme Court’s discussion of these issues in Network Solutions, Inc. v. Umbra Int’l, Inc., 529 S.E.2d 80 (Va. 2000) is helpful in illuminating the questions presented. There, the court held that a domain name could not be garnished by a judgment creditor under the relevant Virginia statute because it was “inextricably bound” to the domain name services provided by the registry operator. Id at 86. The court elaborated: “[W]hatever contractual rights the judgment debtor has in the domain names at issue in this appeal, those rights do not exist separate and apart from [the registry] services that make the domain names operational Internet addresses.” Id. The court further observed that allowing garnishment of a registry’s services as part of garnishing a right to a domain name would mean that “practically any service would be garnishable.” Id. at 86-87.
The Court finds this reasoning persuasive as applied to District of Columbia attachment law as well. The ccTLDs exist only as they are made operational by the ccTLD managers that administer the registries of second level domain names within them and by the parties that cause the ccTLDs to be listed on the root zone file. A ccTLD, like a domain name, cannot be conceptualized apart from the services provided by these parties. The Court cannot order plaintiffs’ insertion into this arrangement. (Emphasis added)
As can be seen, this Federal Court decided this 2014 case involving a top level ccTLD by relying on a 2000 Virginia Supreme Court decision involving a second level domain at a generic top level domain (gTLD).
But, while analogizing the operation of a ccTLD to the provision of services, the Court did not decide that TLDs or, by analogy, second level domains were not a form of property.
In footnote 2 of its decision the Court makes that distinction quite clear by again citing the 2000 Network Solutions case:
The Court notes that judicial decisions have construed domain names to be a form of intangible property. See, e.g., Kremen v. Cohen, 337 F.3d 1024, 1030 (9th Cir. 2002). But the conclusion that ccTLDs may not be attached in satisfaction of a judgment under District of Columbia law does not mean that they cannot be property. It simply means that they are not attachable property within this statutory scheme. Indeed, in Network Solutions, the Virginia Supreme Court nodded to this precise point in stating that it was not “essential to the outcome of this case to decide whether the circuit court correctly characterized a domain name as a ‘form of intellectual property.”‘ (Emphasis added)
This decision thus leaves open the possibility that domains may constitute a form of intellectual property that cannot be attached to satisfy a judgment. Reaching that conclusion in future litigation might provide domain owners with arguments for greater parity with trademark rights while protecting their assets against attachment and other legal processes.
ICANN issued a press release in response to the decision in which John Jeffrey, its General Counsel and Secretary, stated, “We are pleased that the court ruled in our favor on the grounds that the ccTLDs are not property, subject to attachment. The court’s ruling demonstrates a technical understanding of the DNS, and the role of ccTLDs in the single, global, interoperable Internet.” Unfortunately, that declaration misstates the judicial opinion, which took no position on whether ccTLDs were some form of property, but simply determined that their service-like aspects protected them from judicial attachment.
It is not known at present whether plaintiffs in the case will seek to appeal this important decision. In addition to adding to the slim body of court decisions regarding the legal status of domains, the ruling also defuses a huge potential political problem for both ICANN and the United States in the midst of ongoing ICANN community discussions of the IANA functions transition and related enhanced accountability measures for ICANN. If a US Court – especially one as prestigious as the DC District Court – declared that it had the authority to order the transfer of a nation’s ccTLD to private litigants it would undoubtedly trigger a global outcry against ICANN’s continued status as a non-profit, private-sector led corporation under California law. That in turn could strengthen the hand of those nations that would prefer to see ICANN’s functions transferred to the International Telecommunications Union or to a newly created UN agency under intergovernmental control.
Comments are closed.