Regulation & Expertise
The authorized battle over the intercourse.com case could also be over, however it appears that evidently there isn’t a finish to the hanky-panky relating to on-line domains.In Kremen v. Cohen, the ninth U.S. Circuit Court docket of Appeals not too long ago rejected the most recent enchantment by pornography king Stephen Michael Cohen of a $65 million award to intercourse.com’s unique registrant, Gary Kremen. Kremen alleged that Cohen misappropriated that area identify.Kremen has settled his conversion declare — alleging that the area identify was improperly transferred to Cohen — with the one instantly accessible deep pocket, Community Options Inc.Herndon, Va.-based NSI was the registrar of the intercourse.com area. It allegedly allowed the area identify to be transferred to Cohen with out Kremen’s consent. The confidential settlement reportedly was for someplace round $15 million.In the middle of this decade lengthy authorized journey, Kremen helped blazed new trails within the discipline of registrar legal responsibility and area identify legislation.The intercourse.com case started in 1994, earlier than the explosion of the Web as a medium for promoting items, companies and pornography. When Kremen first registered intercourse.com, just one firm, NSI, was registering names, and it was giving them away totally free.Kremen and the courts have been pressured to grapple with the thorny query of whether or not a website identify is able to being transformed — a authorized principle usually requiring that some tangible property be misappropriated to a different individual with out consent. The authorized confusion was compounded by the truth that there was no enforceable contract between Kremen and NSI since Kremen had paid no consideration for the area.However the technique by which management of the area was wrested away from Kremen was fairly old school. It was achieved by easy forgery and fraud.Cohen despatched a letter to NSI purporting to have come from Kremen’s firm, disclaiming any curiosity in intercourse.com — which Kremen had let sit idle — and asking Cohen to so inform NSI. The letter purportedly was signed by Kremen’s then-housemate, although the courtroom subsequently famous her signature was misspelled.
NSI did nothing to confirm the authenticity of the letter and, accepting the letter at face worth, transferred the registration of intercourse.com to Cohen. He then constructed a multimillion-dollar porn empire across the area, a lot to the chagrin of Kremen, who by then acknowledged the large worth of a generic, second-level area identify corresponding to “sex” within the dot-com world.Tens of millions of and a number of other courtroom battles later, Kremen succeeded in procuring the return of the intercourse.com area registration. In addition, he obtained a $40 million compensatory and a $25 million punitive damages award from the U.S. District Court docket in San Francisco in opposition to Cohen, who apparently took all his property and fled the US to an undisclosed location the place even bounty hunters employed by Kremen can’t discover him.Essential points remainWhether Kremen ever collects this judgment, and whether or not the case is lastly over, vital authorized points stay.In 2003, in Kremen v. Cohen, the ninth Circuit reversed the trial courtroom and held that an Web area identify is property topic to being improperly taken or transformed by one other. The ruling allowed tort claims to be introduced when a website identify is wrongfully transferred though no enforceable contract exists or when contract treatments could also be too restricted. Nonetheless, the difficulty stays open.The ninth Circuit primarily based its ruling on its self-described “grudging reading” of California legislation as as to if a website identify fell inside an exception permitting intangible property not merged into some doc — like a inventory certificates — to be the topic of a conversion declare. The query of whether or not one thing is property topic to conversion will not be a federal authorized query, however one in every of state legislation.The federal appellate courtroom on this case had provided the chance to make clear California legislation, by the use of licensed query, to the California Supreme Court docket. However that prime courtroom demurred. When pressured to make the dedication of California legislation itself, the ninth Circuit interpreted California case legislation from the late 1800s to allow such a declare regardless of the argument that the area identify was not more than a routing protocol and thus not tangible property.The ninth Circuit held that the area identify system was in actual fact a doc or assortment of paperwork saved in digital type. The courtroom discovered that the area identify is much like a inventory certificates, which is related to the intangible property, and that the intangible worth of a website identify is related to the area identify system data. Such data affiliate word-based domains with specific computer systems networked on the Web.However the ninth Circuit went additional. It famous that if it have been essential for it to take action, it could maintain all property, tangible or intangible, as being able to conversion — and would reject the strategy set forth in “Restatement (Second) of the Law of Torts” allowing conversion solely the place there’s a merger of intangible property in some doc.Nonetheless, as a result of this determination is predicated on a federal courtroom’s interpretation of 1 state’s legislation, it doesn’t set robust precedent for different courts making use of the property legal guidelines of various states. Actually, different federal choices, most notably from the Japanese District of Virginia the place NSI was primarily based, maintain on the contrary. It stays to be seen the place the opposite circuits or states will come down on this debate.Dilemma remainsThe Kremen victory and the eventual settlement by NSI haven’t deterred continued shenanigans or carelessness with domains, as was not too long ago skilled by one in every of New York’s oldest industrial Web service suppliers, Panix.com.In mid-January of this 12 months, possession of the Panix.com area identify was moved to Australia, the corporate’s area identify server data have been moved to the UK, and the corporate’s e-mail was redirected to an organization in Canada, all with out Panix.com’s data or consent.
The fiasco resulted in Panix.com’s clients, lots of whom are in New York Metropolis, Lengthy Island and New Jersey, being disadvantaged of Web and e-mail entry for just a few days, and within the potential compromise of shoppers’ personal e-mail and passwords.Two well-known area registrars have been concerned within the Panix.com incident, however correct verification of the switch request was not obtained. The receiving registrar in Australia, liable for acquiring the validation, had delegated the duty to its reseller, which did not acquire the validation.In its investigation of the Panix.com incident, the Web Company for Assigned Names and Numbers (ICANN, a non-public, nonprofit company that presently governs the area identify system), expressed concern that the recipient registrar had delegated the verification to a third-party reseller. However a proposed rule that will have required the recipient registrar to have sole duty for verification of the switch request was rejected when ICANN not too long ago adopted new procedures to manage transfers of domains from one registrar to a different.Panix.com was capable of regain its area identify reasonably rapidly. It took a decided Kremen various years and loads of authorized charges to take action. Others might not fare as properly. House owners of domains should train vigilance and diligence. The courts must proceed to deal with the inevitable claims and disputes.We’ll see the place different courts wind up in figuring out whether or not a website identify is property and the way they’ll take care of the persevering with, thorny authorized points on this space.Jose I. Rojas is a accomplice on the Rojas Regulation Agency in Miami. He’s a previous chair of The Florida Bar’s laptop legislation committee and is a member of the Worldwide Trademark Affiliation’s Web Committee.