(May 2000)
Few people would dispute that sex.com is a valuable piece of online property.
Stephen Cohen wouldn't: He's the ex-convict who runs sex.com and claims
it's the top-grossing porn site on the Web, snaring millions of dollars a
month.
Neither would sex.com's original owner, Net entrepreneur Gary Kremen, who
sued two years ago to reclaim the domain he says Cohen stole by forging a
phony transfer letter to domain registrar Network Solutions.
With millions at stake, Kremen sued both Cohen and Network Solutions.
There are those, however, who would argue that online
property, valuable or not, isn't property at all. Unfortunately
for Kremen, one of those people is Judge James Ware, who's
presiding over Kremen's case against Network Solutions in
U.S. District Court in San Jose, California.
Last Friday, Ware granted a summary judgment in favor of
NSI, based in part on the ruling that domains are not
property, and are therefore not subject to property law.
"The court leaves it to the Legislature to fashion an
appropriate statutory scheme to protect dormant domain
names unprotected by trademark law," Ware wrote in his
ruling.
Kremen is furious.
"It's ridiculous. If you follow the logic here, it's open season
for stealing domains. If I go hijack your domain and use it for
a year, you have absolutely no recourse."
Kremen plans to appeal. (His separate suit against Stephen
Cohen is still pending.)
Kremen's wrath may be justified, but it should be directed at
the law, not the judge, several legal experts say.
"The court points out, rightly, that the law has yet to catch
up with the Internet, and it would be overreaching if it ruled
for the plaintiff," said Sally Abel, a trademark lawyer at
Fenwick and West in Palo Alto, California. "The judge is right
-- at this time."
At the heart of the property dispute is whether domains are
more akin to a plot of land (obviously, property) or to a
phone number, which is considered a designation for a
service and not property in and of itself.
Network Solutions argues that it's like a phone company,
and that domain names are like phone numbers. "A domain
name is not property, it's a service," said Phil Sbarbaro,
Network Solution's litigation attorney.
"To say people buy and sell domain names is the vernacular,
but it's not accurate," he said.
What they're doing is authorizing Network Solutions to
transfer the service it provides to a new customer, he said.
Others think that's oversimplifying.
http://www.wired.com/news/politics/0,1283,36247,00.html(more)
http://www.wired.com/news/business/0,1367,37970,00.html
(August 2000)
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