Forgot your password?
typodupeerror
Canada The Courts The Internet Your Rights Online

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."
This discussion has been archived. No new comments can be posted.

Canadian Judge Rules Domain Names Are Property

Comments Filter:
  • Who owns the domain name?

    • by Anonymous Coward

      The registrant. And FWIW, the term "domain name investor" is the best euphemism for "scumbag speculator" I've seen yet.

      • by daath93 (1356187)
        Wah, someone thought of this domain name first and registered it. They want money for having done so before me. Wah. *yawn*
    • 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.
      • 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).

        • 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.

          ...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 article also mentions :

          Tucows acquired the domain name when it bought MailBank.

          So the answer to the question of who owns it is still Tucows. Whether you want to call the original registration domain speculation or not, the end result is the same in that the registrar is in this case the owner as well. Hence at this point there is no "person that registered the name with Tucows", as the registrant and registrar are one and the same.

          FWIW, there is a little more information on mailbank.com on the Tucows wikipedia entry [wikipedia.org].

  • by Anonymous Coward

    and then it should also mean if i attach an ip to said domain that all the protections of law regarding my private home must be observed aka you must have a warrant to enter or view anything that iis behind my domain....THIS will really put a crimp in the lawfull access law that wants warrantless search and seizure of internet ....home users i suggest you get a static ip and point a domain at your ip....

    • by shentino (1139071)

      Attaching an IP to the domain and opening up a web server could be implied invitation.

    • THIS will really put a crimp in the lawfull access law that wants warrantless search and seizure of internet

      You say this as if the Justice Department doesn't already do what it damn well pleases...at the end of the day, if they want in, they'll get in.

  • 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.

    • 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]

      • by Mashiki (184564)

        In Canada, in a panel of judges or justices, they all give their views. This looks to be just the brief, which means it'll take upto a month before the full record is posted since it's not a breaking or earth shattering case. "Property" cases in Canada rank low, personal cases rank high, and are published quickly.

        Anyway, I recommend reading CanLII's page, since it automatically links decisions to make this decision, and has the reflex record built in.

        http://www.canlii.org/en/on/onca/doc/2011/2011onca548/2 [canlii.org]

        • Ooh, Canada has a LII as well - shiny.

          Ah, so this isn't really a judgment, just some sort of pre-ruling opinion? Also, the other two judges are listed at the bottom with an "I agree" each, so I had assumed that was like the E+W courts where, if there are multiple judges and only one giving the lead judgment, the others will just "agree".

          • by Mashiki (184564)

            It is a judgement, but in Canada, new cases and rulings are generally published as a brief. A short condensed version before the judges, justices, or JP's finish writing out their full opinion. Even in the even that a single judge leads, the other 2 will often give their own opinions as to why they're in agreement. Which are stripped out for the short condensed version.

            But sometimes what is is, is.

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

        It would actually be kinda creepy/cool if they had to recite the judgement at the same time. :p

  • 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?

    Next you're going to tell me Minnesota Mining and Manufacturing Company has stopped selling stuff for my mine.

    • Re: (Score:2, Informative)

      by Anonymous Coward

      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.

  • by Oxford_Comma_Lover (1679530) on Saturday August 13, 2011 @10:50AM (#37079040)

    If it does go to the Supreme Court in Canada, oral arguments will be watchable. In the US, the Supreme Court does not allow cameras in the Courtroom (although you can still hear the audio).

    • If it does go to the Supreme Court in Canada, oral arguments will be watchable. In the US, the Supreme Court does not allow cameras in the Courtroom (although you can still hear the audio).

      You watch oral arguments? Funny. I listen to them.

  • If I were to create some new kind of network, and start assigning a system of names to things that people on the network had control over, no one would think that such names were property at first.

    But if they were to start making money on those resources, eventually, the assigned names would be considered 'property', in the sense of legal ownership? On a shared network? Seems odd.

    It seems that whenever people start to depend on a resource, they start clamoring for exclusive ownership to be imposed on that

    • by v1 (525388)

      You'd think they'd be more like trademark than property, in that respect?

      I don't really see how a domain name can be property any moreso than a mailing address?

      • by pbhj (607776)

        >You'd think they'd be more like trademark than property, in that respect? //

        Trademarks are [intellectual] property and can be sold, rented, etc..

    • Domain names are extremely similar to company names. There already exists legal precedent to consider your company name the legal property of the company.

      For example: that large company up in Redmond is called Microsoft. Some guy named John Microsoft brings them to court, claiming that he has the legal right to the company name of "Microsoft", since it is his legal name. The courts would disagree, and rule that the name "Microsoft" belongs to Bill Gates & co.

      A similar case has been going on for ma
    • by unrtst (777550)

      Good point... at first I kinda liked the idea that domain names could be "owned" by the person that registers them (assuming registrar can still charge maintenance fees like a Co-Op landlord), but that last phrase of yours made me think of something...

      ...in a DNS system

      What about other DNS systems? Anyone can setup their own root-server. For more cases, "somedomain.com" is a unique property on the net, but that's not technically accurate - it's only a unique property on a given DNS server (or possibly extended to that DNS n

    • I'm not sure your analysis is correct.

      Just imagine a nickname on IRC or anywhere else for that matter. People claim to own it. It becomes part of their identity and is irrespective to money.

      So it makes sense to me that domains would be treated the same or even the system of names in your "some kind of network".
  • By this ruling, if you were to lapse on payment for your domain registration, your registrar could "purchase" (by way of "paying" themselves) it for themselves and it would become their own property forever. They could sell it to you for an inflated price, or never sell it to you again if they felt so inclined.

    And of course, they would likely list the registration of what used to be your domain through an obfuscation service, so that it would be unclear who the new owner is - which would then result in
    • by Cruciform (42896)

      I imagine that domain names will be irrelevant in a few years anyway. People will find you and come
      back to you based on content, and how you package that content when you pay a search engine to index you.
      The domain name gold rush will come to an end.

      • The domain name gold rush will come to an end.

        That is clearly not what ICANN is counting on with their decision to start selling gTLDs. They are in fact betting the exact opposite, that they can start a new domain gold rush - and of course make some money for themselves in the process!

        That said, people do use the internet differently now than they did back when the first rush of name registration began. Indeed the search engines are, for many users, the primary way to get to web sites. And for many of those same users, the secondary way is throug

    • by mysidia (191772) *

      They could sell it to you for an inflated price, or never sell it to you again if they felt so inclined.

      They can and some already do this.

      Ever hear of "redemption fee"? If your domain goes into redemption, they'll happily charge you $100+ for redemption

      The registrar can hold onto it as long as you like.

      If you don't like it, take it up with ICANN. Personally, I think we have a conflict of interest situation here, where registrars are encouraged to act in a manner inconsistent with their customers'

  • Property in Canada (Score:5, Insightful)

    by redkingca (610398) on Saturday August 13, 2011 @11:00AM (#37079092)
    If as the court has ruled that a domain anme is "property" that means as long as it is maintained, it requires a court order to seize it, and that a business with a domain name is entitled to all the rights and privileges or a "real" business(actual court orders to search or read domain email without holders permission, ect.) A very interesting judgement, I imagine this may go all the way to the Supreme Court of Canada. In the area of property, ISPs would not be able to take your site down without a court order as long as your paying for hosting. Just as a business can't be evicted as long as it pays the rent, without a court order. You would be able to sue in court for loss of access due to outages, as if the landlord blocked a door to a store. Or if you are hosting your domain on your own equipment, a real court order would be required to block DNS records. I imagine this has huge implications to Intellectual Property rights, Copyright, and legal copying/file sharing under Canadian Law. I imagine the US and the EU are going to have an apoplectic fit once the lawyers start really discussing this.
    • The domain name is not the mail or web server addressed with it. If I own a direction sign, I do not acquire additional rights to whatever it points to.

    • by sgt scrub (869860)

      the court has ruled that a domain name is "property"

      Not just property but "real property". It has always been something that can "belong" to an entity. eg, intellectual property. Now it is a real something, just like any other physical belonging. Your also correct in that EU and US copywrong lawyers are now flopping around and foaming at the mouth.

    • by fnj (64210)

      Oh ye of little cynicism. ANY government can do ANYTHING to its hapless citizens and most of them perform execrable acts against their citizens repeatedly. Governments have armies and marshals; U.S. State governments have state police; local governments have police. All of these entities and forces have more than ample power to get the job done, and break any number of constitutional clauses and similar restrictions every day.

      Your optimistic idea that a court order is necessary for property to be seized

      • Well, it's funny that you compare the US with those military dictatorships, and then pull other countries into the mix.

        Sure, anybody with a few men and a few guns could do whatever they want to unarmed civilians -- but without the law on their side they'll eventually suffer the consequences -- if they're in a place with rule of law.

        Be cynical of the world you're in if you will. Not every part of the world has abandoned the pretense of maintaining the rule of law, don't speak as if the world follows eagerly

  • by Compaqt (1758360) on Saturday August 13, 2011 @11:21AM (#37079198) Homepage

    It's hard to know exactly what the judge had in mind (yes, I read the article).

    I was reading the actual judgement [ontariocourts.on.ca], but it was too long.

    This brings up some interesting points: if you have a property interest in a domain, then what do you pay the yearly fee for?

    It must only be for server usage. By that standard, a registrar shouldn't be able to seize your domain if you don't pay the fee.

    Or, perhaps, in order to recover their fee, they could auction the domain, and take their cut ($9). The rest is your money. So if a domain sells for $100k, you get $99,991.

    • This brings up some interesting points: if you have a property interest in a domain, then what do you pay the yearly fee for?

      Administrative costs. In a similar way, once I stake a claim to a particular trademark, I continue to own it as long as I do not abandon it. IMHO, this is an easy decision, though I agree there will be pressure in some quarters to get it quashed.

    • by da_foz (751028)

      This brings up some interesting points: if you have a property interest in a domain, then what do you pay the yearly fee for?

      Is it not similar for patents and/or trademarks? Don't you have to pay a fee to maintain your status?

      I was just discussing this with a (Canadian) IP lawyer and his take on it was he would consider a domain (intangible) property similar to patents, trade-marks and copyrights.

  • What? Just because this case may (almost certainly) will go to the Supreme Court of Canada means exactly nothing. The Supreme court will not, and does not, simply uphold lower court rulings as a matter of course. That's just speculative nonsense.
  • This overall case would seem to have two elements:
    One is the conflict between trademark protection and property right.
    The second is the horribly messy jurisdictional overlaps that occur in Internet related legal disputes.

    If I acquire the domain name Googler.com legitimately because someone from the big G forgot to register that variant,
    I now have a property right to that domain name.

    But Google also has a trademark right to it (easily confusable etc etc) so under trademark law they ought to be able to
    prevent

  • by king neckbeard (1801738) on Saturday August 13, 2011 @12:37PM (#37079732)
    Will this at least put ICE domain seizures on hold (presuming American judges hold to the same logic)? Seizing property is generally held to be a pretty big deal.
    • by fnj (64210)

      Why would it do that? Seizures under the RICO act and similar measures without proper court proceedings are already plainly and boldly unconstitutional in the U.S. as it is. Why would American governmental thugs care about any other impediment if they are already getting foreign connivance in their thuggery as it is?

    • by werfu (1487909)
      No it will not. This is a canadian ruling and as such, it's only binding in Canada. Now let's say any company deposit a complain to ICANN or get's a ruling in the US against a canadian company operating a web site infringing on their copyright or IP (let's say a torrent site), than domain could be seized by ICE, allowed that the registred domain is part of a TLD operated under US juridiction (com, net, org...). However, if the domain is a .CA, the domain cannot be seized. The plaintiff can however gets the
  • 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.

    • While I support your right of opinion, I take issue with your statement,

      ...American constitution attaches undue weight to property rights.

      Understand one thing, the founders knew that property rights equaled liberty. There is no "undue weight to liberty".

      • I'll see your "property rights equaled liberty"

        and raise with "Freedom's just another name for nothin' left to lose"

    • by joe545 (871599)
      But not Scotland? Scotland has had the right to roam since time immemorial (much like Scandinavia's allemansrätten) whereas for England & Wales that's only really been allowed since the Countryside and Rights of Way Act of 2000 - and even then it's more restrictive than in Scotland.
    • The US never had feudalism, where the lords owned all the property, and thus never had to get rid of feudalism

      Actually we still have feudalism in the US. In most States, most property is owned 'in fee simple'. You only ever own a title to the land, you don't own the land itself (in allodium, historically available in Nevada and a few other States). Most often, the State is the landowner, and effectively he can take it back whenever he wants to. If you don't pay him rent on his land, he'll seize the titl

      • by Carnildo (712617)

        Actually we still have feudalism in the US. In most States, most property is owned 'in fee simple'. You only ever own a title to the land, you don't own the land itself (in allodium, historically available in Nevada and a few other States). Most often, the State is the landowner, and effectively he can take it back whenever he wants to. If you don't pay him rent on his land, he'll seize the title and throw you off his land.

        We never really made much progress - we just instituted State feudalism instead of Lo

        • Good points. There are probably alternate options, though. You could rent-to-own from a bank, with a 30-year commitment (transferable). For a contractor, a trusted third party could hold money in escrow. Home equity loans could be converted back to the rent-to-own model, starting at 80% or so.

          There are some interpretations of allodial title that say it's never saleable or transferable, but that's pretty narrow and doesn't jive with other tenets of property rights.

    • In Britain, (but not Scotland) there is a "right to ramble", to walk over undeveloped, uncultivated private land.

      You make it sound as if Scotland does not have these rights, however this is not the case. Instead, here in Scotland we have a complete "right to roam", far less restrictive than that of England and Wales. I believe the main difference is we can be on any land for a variety of purposes instead of just certain types of land like moorland and coastal land.

      I realise this does not necessarily affect the point you were making, I just thought it should be pointed out.

      Sources: Me (An Englishman living in Scotland)

    • by mysidia (191772) *

      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

      The big deal here is... if the UDRP cannot be applied to Canadian residents, then the UDRP is inherently unfair and should be crossed off the books. The whole point of the UDRP is it's to be universal.

      The UDRP is unfair anyways, and should be crossed off the books anyways. The concept of 'disputing' a registration based on what the name is, should go

  • Here's the Judgment on Canlii: Tucows.Com Co. v. Lojas Renner S.A., 2011 ONCA 548 (CanLII) [canlii.org].

    This dispute is about the service of a Statement of Claim (the document that initiates a claim). Once a claim has been served, there is an obligation to respond - otherwise the defendant may be noted in default and lose the right to defend themselves. Service of a Statement of Claim may only be completed on a foreign company in certain circumstances, namely where (in principle) the allegations in the claim are relat

  • Now the real question is, do I also own the IP the domain name is pointing to if I have a static IP address, or am I leasing it?

    • by mysidia (191772) *

      Now the real question is, do I also own the IP the domain name is pointing to if I have a static IP address, or am I leasing it?

      The concern that some day organizations might try to claim some sort of property right to an IP address was thought up a long time ago.
      The ISP assigned the address, if it was obtained in the past 12 years [or so], had to sign the RSA [arin.net], which contains the following clause, as a condition of being assigned IP addresses:

      Applicant acknowledges and agrees that the number resources

  • The registrant, as listed in the admin contact would be the owner of the domain name. Any other legalities would be dictated by the registrants contract with anyone they gave rights to. This seems rather obvious.

There is no distinction between any AI program and some existent game.

Working...