Dear Pranesh, thanks for your kind reply. My comments are inline: On 26/04/2016 14:54, Pranesh Prakash wrote:
Olivier MJ Crepin-Leblond <ocl@gih.com> [2016-04-08 01:24:44 +0200]:
On 08/04/2016 00:57, Michele Neylon - Blacknight wrote:
The issue around domain seizures has nothing to do with ICANN. Any domain seizure cases I’ve seen (including the examples cited by Parminder) were all made either at the registrar or registry level. I haven’t see any cases where ICANN has been involved directly (though they often get named in cases)
You're absolutely correct. And the only "seizures" that were requested, were those of Top Level Domains: http://www.bbc.com/news/technology-28582478 There are many other sources that describe the case in detail. The judge sided with ICANN in saying that "they are not property subject to attachment under District of Columbia Law".
And dear Olivier, you are absolutely incorrect.
U.S. authorities have seized thousands of websites (once accidentally seizing 84,000!): https://torrentfreak.com/feds-seize-130-domain-names-in-mass-crackdown-11112...
https://torrentfreak.com/u-s-government-seizes-bittorrent-search-engine-doma...
http://www.theregister.co.uk/2011/02/18/fed_domain_seizure_slammed/ https://www.europol.europa.eu/content/690-internet-domain-names-seized-becau...
When it comes to domain seizures that directly involve ICANN, I am absolutely correct that these have been about Top Level Domains only and the rest of my paragraph is a quote from the BBC relaying what the judge said.
The majority of the world's registries and registrars are headquartered in the US: * 3 in 5 registrars are from the United States of America (624 out of 1010, as of March 2014, according to ICANN's accredited registrars list), with only 0.6% being from the 54 countries in Africa (7 out of 1010). * 45% of all the registries are from the United States of America! (307 out of 672 registries listed in ICANN’s registry directory in August 2015.)
http://cis-india.org/internet-governance/blog/global-multistakeholder-commun...
I am not disputing this, Pranesh. But this widens the debate. What is the reason that the majority of the world's registries and registrars are headquartered in the US? Is this caused by ICANN being headquartered in the US?
So, yes, every country has the ability to exert power over registries and registrars, but some have more powers than others.
In this case, it is actually a good thing that the case had to go in front of a US court since jurisprudence already existed.
That is incorrect, since many would see the jurisprudence on a domain name as inapplicable to a TLD.
And even if you don't, the reality is that the US is not one singular legal entity. There is a wide divergence of opinions within US courts as to whether domain names are property or not, and very little as to whether TLDs are properties are not. A helpful footnote in one of A. Michael Froomkin's articles provides this bibliography:
Anupam Chander, The New, New Property, 81 TEX. L. REV. 715, 776-781 (2003) (“Understanding domain names as property accords with how they are treated in practice.”); Juliet M. Moringiello, What Virtual Worlds Can Do for Property Law, 62 FLA. L. REV. 159, 179 (2010) (discussing the Virginia Supreme Court’s conclusion in Network Solutions, Inc. v. Umbro Int’l, Inc., 529 S.E.2d 80, 86 (Va. 2000) that a domain name represents a service contract, not property subject to garnishment); Xuan-Thao N. Nguyen, Commercial Law Collides with Cyberspace: The Trouble with Perfection – Insecurity Interests in the New Corporate Asset, 59 WASH. & LEE L. REV. 37, 65 (2002) (“The classification of domain names as either property or contracts is an issue of first impression with which courts have struggled.”); XuanThao N. Nguyen, Cyberproperty and Judicial Dissonance: The Trouble with Domain Name Classification, 10 GEO. MASON L. REV. 183, 186 (2001) (recognizing domain names as intangible property).
I am not going to defend the US justice system and its potential randomness in case resolution depending on the persons sitting in court. As a European, of course I'd favour predictable legislation instead of relying on expensive court cases that might swing either way. But blaming ICANN for the fact that the majority of the Domain Name industry is located in the US is unfair. This is a free market world and the new gTLD process could have brought a myriad of applications from outside the US. But it did not. Is this really ICANN's fault? Kindest regards, Olivier