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Canadian Judge Rules Domain Names Are Property 142

Posted by timothy
from the radical-libertarians-all dept.
farrellj writes "A recent decision in the Ontario Appeals court has ruled in favour of Tucows, saying that domain names are considered property, rather than being a license. This has major ramifications for a people both inside and outside Canada, doubly so since Tucows is a major domain registrar. This ruling comes from a very high court, which means that any appeal must go to the Supreme Court of Canada. So there is a good chance this ruling will stand."
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Canadian Judge Rules Domain Names Are Property

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  • Re:Tucows? (Score:2, Informative)

    by Anonymous Coward on Saturday August 13, 2011 @10:49AM (#37079036)

    The Ultimate Collection of Winsock Software is registering domains? Man I'm old. Has Flint Michigan done so bad that we gave it to Canada?

    No, but bad enough that Tucows would want its head-quarters in Canada rather than there. From Wikipedia:

    Tucows (originally an acronym for The Ultimate Collection of Winsock Software, a name which has long since been dropped) was formed in Flint, Michigan, USA in 1993. It incorporated in Pennsylvania and headquartered in Toronto, Ontario, Canada.

  • Re:So who owns it? (Score:5, Informative)

    by redkingca (610398) on Saturday August 13, 2011 @11:16AM (#37079170)

    By that ruling, Tucows owns it. They registered it previously, and the court says it is still theirs and theirs alone to do with as they please.

    Actually the ruling says that Tucows as the register does not have to turn the domain name over to the person in Brazil, who demanded the domain(because the domain name is the same as his last name). The domain name was in use, and also hosted 14 active domain email addresses that did not have to be surrendered by the person that registered the name with Tucows. The court ruled that the domain name and the domain email have a "real value" which makes them equal to property(as in I can't demand you give me your car because my last name was ford).

  • Re:Court not Judge (Score:4, Informative)

    by Grumbleduke (789126) on Saturday August 13, 2011 @11:53AM (#37079410) Journal

    TFA explains that it was a panel of three judges, so it was the Court of Appeal for Ontario's decision, not the decision of a single judge.

    Yes, but as often happens in cases where there is a panel, only one of them gave a judgment, the others just agreed.

    If anyone is interested in what the ruling actually says, the judgment is here [ontariocourts.on.ca] with the relevant part starting at [41]. The judge seems to have noted that in both the US and UK, domain names are already being treated as a form of intangible property in law (like patents, copyrights etc.), which could, as discussed elsewhere in the comments, lead to greater "rights" for those who have "bought" a domain name; making it more like renting than licensing.

    The reason the court needed to consider this was due to jurisdictional issues; the claimants needed to show a "real and substantial connection with Ontario", i.e. that the case concerned property there. The case seems to be mainly about procedure rather than substantive law. [For the record IAALS]

  • Re:dr;nca (Score:5, Informative)

    by skywire (469351) on Saturday August 13, 2011 @12:15PM (#37079548)

    No, you do not have it right. You have made the common error of imagining that it is the copyrighted work that is "intellectual property", the thing that is owned by the copyright owner. Actually, what is owned is the copyright itself, that is, the exclusive right to authorize copying of the work.

    The analog of car theft would be not infringement, but the act of assuming the ownership of a copyright without the consent of the rightful owner. This could happen if a person were to fraudulently convince the state agency that administers copyrights that the owner of the copyright has assigned it to him.

    Infringement is more like a trespass -- like someone finding your car unlocked and sitting in it. The copyright owner is still recognized as owner and is still for the most part enjoying the state's enforcement of his monopoly.

    Please do not misread me as a defender of the justice of copyright law. That is a question for another time.

  • This is Canadian. (Score:5, Informative)

    by Animats (122034) on Saturday August 13, 2011 @12:49PM (#37079814) Homepage

    This is Canadian. Canadian and UK law don't have as much baggage attached to the concept of "property" as the US does. Through an accident of legal history, that Blackstone's commentaries [wikipedia.org] were more available in America than other writings on law, American law and the American constitution attaches undue weight to property rights. The "due process" clause in the U.S. Constitution limits due process to "life, liberty, and property", which is part of why it matters so much whether something is "property". A leasehold, for example, is not property.

    The US never had feudalism, where the lords owned all the property, and thus never had to get rid of feudalism. In the European countries that did, when feudalism went down, so did the emphasis on property rights. This remains quite real today. In Britain, (but not Scotland) there is a "right to ramble", to walk over undeveloped, uncultivated private land. Squatters in abandoned buildings have rights. Penalties for trespass are very low by US standards. Conversely, the rights of renters are stronger in England than in the US.

    Canada generally follows English precedent in this area. "Properly" is not an absolute; it's a bundle of rights established by law and precedent. So that domains are "property" means less than it would in the US.

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