Earlier we wrote about ICANN filing several motions to quash a federal court ruling that ccTLD registries could be seized to satisfy judgements against the underling country saying ccTLD’s are not considered property and therefore it can’t be attached by plaintiffs.
We read through some more of the 289 page memorandum ICANN filed in support of the motions and ICANN is position is only are not the ccTLD registries not property but the ccTLD’s don’t even belong to the underlying country. ICANN analogies that ccTLD’s registries are simply like Zip codes and domain names are like street addresses.
ICANN goes further to say:
A ccTLD cannot be physically held, it is not capable of a precise definition because it is constantly changing as new domain names are added and deleted, there is no established market within which a ccTLD can be purchased or sold, and a ccTLD holds no intrinsic value.
Put simply, defendants In this case (the underlying countries) do not “own” these ccTLDs.
“”A ccTLD is simply the provision of routing and administrative services for the domain names registered within that ccTLD; it is not property.””
“”Other established principles within the Internet community also refute any notion that a country “owns” the ccTLD assigned to it.”
The following is from the memorandum:
A. ccTLDS ARE NOT PROPERTY SUBJECT TO ATTACHMENT.
Under District of Columbia law, attachment proceedings must be directed at “property,” which is defined as a “judgment debtor’s goods, chattels, and credits.” D.C. Code § 16-544.
A ccTLD is not property.
A ccTLD cannot be physically held, it is not capable of a precise definition because it is constantly changing as new domain names are added and deleted, there is no established market within which a ccTLD can be purchased or sold, and a ccTLD holds no intrinsic value.
Moreover, a ccTLD, by itself, has no functional utility without all the routing and administrative services – provided by the ccTLD manager and members of the Internet technical community – that accompany and support its use.
A ccTLD is simply a two-letter code (or related non-ASCII equivalent), corresponding to a particular country, which is used to help organize the registry of second-level domain names registered within the top-level domain.
If a specific domain name can be analogized to a street address, a ccTLD can be thought of as a zip code.
That zip code may encompass many different addresses, and those addresses in turn may correspond to certain places on the Internet that people can access, such as websites. But the street address itself is not property, nor is the zip code in which the street address exists.
Rather, a ccTLD simply identifies for computers the general vicinity of the Internet in which a specific address and information is located.
To the extent a ccTLD is capable of a legal definition, it is a collection of technical and administrative services, rather than property.
This is precisely what the Ninth Circuit found in Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980 (9th Cir. 1999). There, the court was called on to determine whether the .COM TLD was a “product” or a “service,” and the court ruled that the TLD fell “squarely on the ‘service’ side of the product/service distinction.” Id. at 984. As the Ninth Circuit correctly analogized, “NSI’s role [as the manager of .COM] differs little from that of the United States Postal Service: when an Internet user enters a domain-name combination, NSI translates the domain-name combination to the registrant’s IP address and routes the information or command to the corresponding computer . . . NSI does not supply the domain-name combination any more than the Postal Service supplies a street address.” Id. at 984-85.
Likewise, in assessing whether domain names – which are listed within the Internet’s TLDs – can be considered “property,” numerous courts from various jurisdictions have found that they cannot.
For instance, in Dorer v. Arel, 60 F. Supp. 2d 558, 560 (E.D. Va. 1999), the Eastern District of Virginia found – in judgment execution proceedings – that “there are several reasons to doubt that domain names should be treated as personal property subject to judgment liens.” Chief among these reasons is that “a domain name registration is the product of a contract for services between the registrar and registrant . . . Thus, a judgment debtor ‘owns’ the domain name registration in the same way that a person ‘owns’ a telephone number.” Id. at 561. In Network Solutions, Inc. v. Umbro International, Inc., 529 S.E.2d 80, 86 (Va. 2000), the statement that “[c]oncerns about ‘rights’ and ‘ownership’ of [ccTLD] domains are inappropriate.
Put simply, defendants do not “own” these ccTLDs.
A ccTLD is simply the provision of routing and administrative services for the domain names registered within that ccTLD; it is not property.
And because a ccTLD is a collection of critical and complex Internet services, a ccTLD is not attachable or property.
Put another way, Plaintiffs may not use their Writs of Attachment to interject themselves into – or become party to – this complex web of services relating to technical matters, much less interfere with and disrupt them.
Because the services provided by ccTLDs are not transferable “property,” the Writs of Attachment must be quashed. See Rochford v. Laser, 91 Ill. App. 3d 769 (Ill. Ct. App.
ccTLDS ARE NOT “OWNED” BY THE COUNTRIES TO WHICH THEY ARE ASSIGNED.
The Writs of Attachment must also be quashed because, even if “property,” these ccTLDs are not owned by the defendants – any more than a city or neighborhood “owns” their zip code. D.C. Code § 16-544.
None of the defendants purchased the ccTLDs assigned to their countries, and there is no established procedure authorizing the defendants to sell these ccTLDs. Nor do the defendants have the power to order ICANN or any other entity to take any actions with respect to the ccTLDs.
As stated in ICANN’s ccTLD guidelines, Section 9.1.3, “the ccTLD is operated in trust in the public interest and that any claim of intellectual property rights in the two-letter code in itself shall not impede any possible future change of Registry.” (Enson Decl., ¶ 14, Ex. M at ¶ 9.1.3 (emphasis added); see also Enson Decl., ¶ 13, Ex. L at Clause 4.2.)
In fact, according to ICANN’s rules and procedures, defendants do not possess the sole power to determine or control what entities will operate the ccTLDs assigned to their countries. (Enson Decl., ¶ 6, Ex. E at p. 2.)
In addition, “[g]eneral principles of property law require that a property owner have the legal right to exclude others from use and enjoyment of that property.”
Here, Plaintiffs cannot point to a contract, agreement, treaty, statute or court case providing defendants with a “legal right” to exclude others from the use and enjoyment of these ccTLDs.
Nor can Plaintiffs point to any evidence indicating that the defendants have attempted to assert such a legal right.
In fact, the entire premise of a ccTLD is that it will be used and enjoyed by many who choose to register, operate and visit domain names within that ccTLD.
The defendants’ lack of ownership interest in the ccTLDs here is fatal to the Writs of Attachment.
See Peterson v. Islamic Republic of Iran, 938 F. Supp. 2d 93, 97 (D.D.C. 2013) (ruling that attachment of electronic funds transfers were inappropriate because Iran had no property interest in the ETFs); Estate of Heiser v. Islamic Republic of Iran, 885 F. Supp. 2d 429, 438 (D.D.C. 2012) (same); Bunkers Int’l Corp. v. Carreirs Pitti, P.C., No. 1:11CV803 (LMB/IDD), 2012 U.S. Dist. LEXIS 40332, at *9-10 (E.D. Va. Mar. 22, 2012) (refusing to allow the attachment of an Internet domain name because the name was not registered to the defendant).
Other established principles within the Internet community also refute any notion that a country “owns” the ccTLD assigned to it.
In 2000, the Governmental Advisory Committee, an independent group of governments that provide ICANN with public policy advice regarding ICANN’s activities, agreed to another set of principles stating, among other things, that “[n]o private intellectual or other property rights should inhere in the ccTLD itself.” (Enson Decl., ¶ 13, Ex. L at Clause 4.2). And Clause 5 of these principles describes the governments’ role as “represent[ing] the interests of the people of the county or territory for which the ccTLD has been delegated” (id. at ¶ 5.1), maintaining “responsibility for public policy objectives” and “ultimate policy authority” (id. at ¶ 5.2), and otherwise following “the general principle that the Internet naming system is a public resource in the sense that its functions must be administered in the public or common interest.” (Id. at ¶ 5.3).
A theory that these ccTLDs are property “owned” by the defendants runs contrary to these bedrock principles of the Internet.
And these are principles acknowledged by many of the ccTLD managers themselves. In particular, numerous .ccTLD managers have publicly supported ICANN’s ICP-1 and its statement that “[c]oncerns about ‘rights’ and ‘ownership’ of [ccTLD] domains are inappropriate.
Statement that “[c]oncerns about ‘rights’ and ‘ownership’ of [ccTLD] domains are inappropriate. It is appropriate, however, to be concerned about ‘responsibilities’ and ‘service’ to the community.” (Enson Decl., ¶ 7, Ex. F at § b (emphasis added); ¶ 15, Ex. N (Letter from Drafting Committee, Alternate ccTLD Best Practices Draft (3 March 2000).)
Put simply, defendants do not “own” these ccTLDs.””
