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Lapsed Domain Name Fight Ruled Upon In Australia 28

Posted by timothy from the my-fault-you-lose dept.
Zaphus writes "The Age is reporting that a domain name fight in Australia in which a lapsed domain name was snapped up by another group with the same initials, has been ruled OK by the arbitrator. This is despite the cause of the lapse being the registrar's for failing to process the renewal even though it was paid for. If this stands then it sets an interesting precident in Australia."
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Lapsed Domain Name Fight Ruled Upon In Australia More

Lapsed Domain Name Fight Ruled Upon In Australia

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  • Well... (Score:5, Insightful)

    by MImeKillEr ( 445828 ) on Tuesday January 14, 2003 @10:03AM (#5080713) Homepage Journal
    .. if the Registrar screwed up (as in this case) why should the original name holder be punished? The registrar should be fined or at least be forced to reimburse the 2nd group (the one that "hijacked" the domain) and the original owner should be granted the name.

    This may go towards pushing for a "grace period" before a domain name can be snatched up by another party.

    It also goes to show that if you own a domain name an renewal is up, you better make sure your registrar gets it done - even if you've already paid.

    • Surely this opens the Registrar up to possible legal action? I know that if this were my company, and I had just lost my domain name because of a mistake by the registrar, I'd sue them. It will be interesting if the Age bothers to actually follow this up should further legal action take place - they have a tendancy to forget about interesting issues pretty fast :(
    • Actually, Verisign will be implementing a Redemption Grace Period for com/net domains beginning on January 25, 2003. Domains that are deleted by the Registrar are given an extra 30 days to be rescued by the prior registrant.

      For more info, see the post by Verisign here [dnso.org].

  • Recourse (Score:5, Insightful)

    by MacAndrew ( 463832 ) on Tuesday January 14, 2003 @10:08AM (#5080766) Homepage
    This sounds like fairly standard law, like the law of what happens when a party in good faith purchases something that was stolen from you. Your recourse is against the thief not the purchaser. (Again, the purchase has to have been in good faith, without knowledge of the illegitimacy of the goods. Things like an excessively low price are a tip-off to bad tricks.)

    So the loser's recourse should be against the registrar. They may not have that opportunity, for if the registrar was smart it would have disclaimed liability for negligence in the contract to do the job in the first place. That provision could carry the day. Also, the would-be registrant should be expected to exercise due care to verify the proper registration.

    Then again, I could be totally mistaken. YMMV. :)
    • wouldn't you expect to get the stolen thing back though?
      • Maybe. I know it sounds harsh, but it's also unfair to the innocent GFP to have it taken from them and likely not get their money back.

        A caution: I recited the "classic rule" which emphasizes the good title of the GFP. Naturally thw law, which is evolving, is not so simple. Lots of other rules exist, some favoring the victim outright by allowing demand and return at any time, others taking an intermediate course by setting a limitations period from the date of the purchase after which ownership is perfected. This topic gets really heated with topics like recovery of art looted by the Nazis.

        A classic case is leaving your watch to be repaired, and the repairer turns around and sells it. Some cases distinguish between this case of "entrustment" where the "thief" has (temporary) title, or where the good are obtained by fraud or bad check, etc., from the outright theft, saying the purchaser from the thief can never get clear title. This seems pointlessly legalistic, because from the GFP's perspective all of these sellers are the same, and all have no real right to sell the goods. I guess the distinction is whether the victim voluntarily handed over title.

        FWIW I favor the rule I stated, with careful evaluation whether the the purchaser is a GFP, and possibly with exceptions where the article is unique. Perhaps the GFP could be required to sell the item as a fair market price. I don't know.

        As usual, and especially here, YMMV. I just thought the classic rule was a nice analogy, though the reality is messier and depends on what state or country you live in. ON TOPIC, I think the decision in this case was correct, looking at the justice and injustice to all parties involved at once. It's a pretty standard rule in commercial law that if you entrust a task to someone and they screw up, you sue them ... unless of course they've disclaimed liability for negligence, in which case if it's important to you you should find one that doesn't. It appears here that the plaintiff was dealing with not the registrar but an independent agent, and so had a choice of agents. Etc., etc. Sometimes there's no completely happy ending, which is why people shouldn't make mistakes int he first place. So there. :)

    • Re:Recourse (Score:3, Insightful)

      by Henry V .009 ( 518000 )
      Here in America, a good faith purchase of stolen goods is void. The stolen goods go back to the original owner, and the purchaser's recourse is against the thief.
      • Not always. [slashdot.org] The rule varies among the states, and there is sometimes a distinction between void (thief) and voidable (fraud) title. The UCC has its own version. It's never simple, it seems.
        • More or less correct, but I was replying to his mistaken assumption that a good faith buyer can buy from a thief and expect to keep the goods.

          Entrustment a common principle in the law, but only applies in cases when a good is transfered to a "buyer in the ordinary course of business." I don't see where that comes into our discussion.
          • Of course, there's no such thing as a GFP from a known thief.

            In the U.S. there are cases where the GFP can get clear title from a thief, but it's the exception. The UCC uses the "entrustment" (voidable title) route and absolves the GFP of certain criminal violations by the seller (cl.3):
            2-403. Power to Transfer; Good Faith Purchase of Goods; "Entrusting".


            (1) A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though

            * (a) the transferor was deceived as to the identity of the purchaser, or
            * (b) the delivery was in exchange for a check which is later dishonored, or
            * (c) it was agreed that the transaction was to be a "cash sale", or
            * (d) the delivery was procured through fraud punishable as larcenous under the criminal law.

            (2) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business.

            (3) "Entrusting" includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to the delivery or acquiescence and regardless of whether the procurement of the entrusting or the possessor's disposition of the goods have been such as to be larcenous under the criminal law.


            Gee, that's almost in English.

            Massachusetts [artseditor.com] for one provides some protection for a GFP from a thief: a 3-year statute of limitations running from the date of purchase, and a narrower affirmative defense for "good faith purchasers for value." What I'm looking at right now suggests that Europe goes farthest in protecting the GFP and clear title, as it should be IMHO because it is destructive to have the risk of someone showing up ten years later demanding their painting back, or worse four of five purchasers down the line.

            For a better analogy without all this commentary, I should have used "bailee" instead of "thief." The point is that the middleman can screw up and the end purchaser still gets the goods (URL).
            • For this to apply, there must be some sort of voluntary transfer of title--even if there was fraud or what not, making it a voidable title. Therefore this will never apply to items that were stolen. Statutes of limitations are relevant, of course, but that should be assumed.

              A good faith purchaser doesn't gain title to stolen goods.

    • Re:Recourse (Score:4, Informative)

      by Chris Canfield ( 548473 ) <slashdot@@@chriscanfield...net> on Tuesday January 14, 2003 @10:46AM (#5081174) Homepage
      Has contract law become so misguided that a simple disclaimer can release the business from any liability due to obvious gross negligence? As "contracts" with registrars are basically non-negotiable, do they truly fall under the heading of contract law?

      As the legal system was setup in part to protect individuals and businesses from unfair, exploitive, or negligent other individuals or businesses, doesn't the legal responsibilities of said party have precedence over a codification of negligent business practices?
      • Yes disclaimers are common. Look at your parking stub the next time you use a lot, and read all those EULA's (assuming they're enforceable) and other contracts which disclaim liability for negligence and consequential damages -- though of course "your rights may vary from state to state." Sound familiar?

        As for the registrar, I think I read that the one who screwed up was actually the agent of the registrar, and I assume the agent is independent and in competition with others. You are right that the problem is different where the other guy is a monopoly, because there your consent to the terms is not freely given. This problem can lead to unenforceability of a disclaimer, and sometimes the local law bans the disclaimer outright.

        Things like contract law are getting better -- more uniform, predictable, and even-handed, plus less Latin. The law dates back to Hammurabi and earlier; things are not so simplistic and harsh today. But because they're changing, the intermediate solutions are confusing and conflicting.

        You have to remember to protect the innocent good faith purchaser, too, who did nothing wrong and shouldn't get cheated any more than the victim who did nothing wrong. Who deserves protection? In this case, both claimants lost money. I spun this out a bit [slashdot.org] after you posted.

  • Arbitration broken world over... (Score:4, Informative)

    by JCMay ( 158033 ) <JeffMayNO@SPAMearthlink.net> on Tuesday January 14, 2003 @10:11AM (#5080805) Homepage
    So the drivers rights organization paid to renew their domain registration, but the registrar failed to process the renewal and resold the domian to the dust removal guys.

    The arbitrators allow the dust removal guys to keep the registration? First of all, it's apparrent that Australian registrar is grossly negligent, and should pay to compensate the drivers rights group for their loss. It also highlights that the idea of domian name registration arbitration is broken not just here in the States, but around the world.

    Finally, and most importantly, it underlines the need for people to become much more creative with domain names. Initials were cute "in the beginning," but with more and more groups competing for names, people must come up with better and ulitmately more meaningful alternatives.
    • Do domain names really matter that much if you are not a mega-corporation?

      I don't remember the last time I actually typed in a URL hoping it would land me where I wanted to go. I either have a bookmark, a link on another page or more commonly, I use GOOGLE.

      Sure it's nice to have a domain name that has your companies initials, but is that really how most people find you?

  • Australia [slashdot.org] sets [slashdot.org] a lot of interesting [slashdot.org] precidents [nzherald.co.nz].
  • It seems to me the finger here is being unfairly pointed at the registrar. It was a RESELLER of the registrar (the reseller was Internet Registrations Australia - famous for spamming people with fake invoice-looking renewal notices) that took payment and did not pass it on to the registrar.

    It even says so in the third paragraph of the Age article.

  • Are Domain Names Owned...or Rented? (Score:3, Interesting)

    by 0x69 ( 580798 ) on Tuesday January 14, 2003 @01:57PM (#5082430) Journal
    IANAL, but with domain names "sold" for limited periods of time, at fixed costs per year, and quickly & surely lost if not renewed (and paid for again), they look like rented property to me.

    It ain't exactly moral, but what legal rights does Joe's Gas Station have if the landlord doesn't let him renew the lease, then rents the location to Bob's Gas Station? How's this domain name mess any different?

    (FWIW, the whole domain name thing looks totally screwed to me. Imagine losing your phone number because anyone dialing "EAST TOKYO HONDA" got connected to you. How many little roofing companies are there in just the U.S., what's special about the one who got "newroof.com", and why should folks in both LA and NYC be sent to that guy's web site? The basic idea behind the whole thing is just plain broken.)
    • Actually, if you want to use that analogy, then its more like this: The landlord told Joe's Gas Station that yes, they could continue to lease the property, and then recieved payment for the next year (as well as the signed lease).

      The landlord then turned around, forgot about Joe's Gas Station (who has already signed the lease and payed the ammount due) and signed another lease with Bob's Gas Station.

      When Joe's Gas Station asked what the hell was going on when Bob was there the next day, the landlord shruged and said, "Too bad for you, I forgot about your lease and gave it to Bob. You'll just have to find another gas station for lease."
    • Joe paid.
      The landlord missplaced the paperwork and to top it all sold to Bob.

      Ta-da!
  • The reseller was hired to perform a service, they didn't perform it and caused the customer to lose their domain. The reseller should reimburse their customer for the loss and damage.

    The other group purchased the domain, which was freely available, they did nothing wrong.
    The registrar who released the name did nothing wrong, they also operated under their standard rules.
  • " Names registered or re-registered after July 1, 2002 are subject to the new rules. A decision by a one-person panel costs $1500; a three-person panel can rule for $3000. One other case over an unidentified name is pending."


    I know that lawsuits are never free but is anyone else disturbed by the way in which arbitration is assigned these flat fees? The idea of being a) prevented from using the court system which has oversight and b) being forced to pay a flat fee just to get my case herd bugs me. Somehow it removes all pretense that the registrar is interested in crerating a viable system and just enforces the idea that they want money, cash up front in fact.
    • One arbitrator costs 7.5 hours of lawyer time, three cost 15. What's the likelihood that you'll get a lawyer to argue your case in that little time?

      An hour to draw up the complaint, an hour or two in discovery, maybe another hour answering motions, a couple hours in the courtroom, this stuff adds up fast.

  • I don't think either the Australian Drivers' Rights Association or the Australian Dust Removalists' Association should be using a .com.au domain name.

    Australia has in place a .asn.au 2LD for Associations so if one of them can't happily accept adr.asn.au then i think its just tough shit for them.

    That said, I still think the ruling sucks.

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