[Ws2-jurisdiction] Domain names 'located' within the US

Sun Jun 4 06:29:56 UTC 2017

Dear Greg

Pl see some comments below.

On Tuesday 30 May 2017 04:54 AM, Greg Shatan wrote:
> Thiago,
>
> Just to clarify, the Subgroup task is the review of ICANN's litigation
> cases.
>
> I'm not familiar with the case you cite.  I am familiar with ACPA,
> since that's been around since 1999 and in rem jurisdiction is a basic
> feature of the law.  In rem jurisdiction dictates that the domain name
> is located in the United States; the Court had no power to assume
> anything.  
>
> In any event, while there are many fascinating topics under the
> general heading "domain names and jurisdiction," they don't all fall
> within our mandate.  Even the broadest attempt to define our mandate
> has not embraced this topic.

I did not follow, what topic exactly you mean does not fall in the
groups mandate. Request a clarification. 

Thiago's email describes cases which clearly show that US public
policies, law and courts have a superior and somewhat exclusive right to
direct ICANN's actions, over that or any other jurisdiction
(representing the corresponding country's sovereign will). This goes to
the heart of the jurisdiction question that is the mandate of this
group. This is unjust, and not acceptable, and therefore this group must
look at options that are more just to everyone.

> This is appropriate since ICANN does not register or assign second
> level domain names.

The quote from the ACPA in Thiago's email is clear that courts can
leverage a higher level "owner" being a higher level domain name body,
from a registrar to a registry to ICANN itself, at the apex of the
domain name system. It is like a court may direct an occupier of a
rented property with regard to some action, but may as well choose to
direct the higher level "owner'', the property owner who rented it.
(There could be other ownership links,  a resident owners group and so on).

The point is, ICANN at the apex of the DNS, or the ownership chain for
domain names, can be forced through in rem jurisdiction by a US court
bec ICANN is in the US, wherever the registry or the registrar may be.

> As such, I don't believe there is any real possibility that US courts
> would find in rem jurisdiction over a second level domain name issued
> by a registry located outside the US.

As above, I do not accept this assertion.

>   I'm not aware of any case where plaintiffs have asserted that the
> courts have in rem jurisdiction over a TLD and since ICANN does not,
> in fact, register or assign TLDs,

Not sure what you mean? Who else assigns TLDs if not the ICANN? I am
missing something here I think.

> this seems perfectly appropriate.  As the _Weinstein_ case shows, an
> attempt under other laws to assert jurisdiction over a TLD based on
> ICANN's location failed.  Plaintiffs are always entitled to come up
> with novel legal theories, but there, as here, the mere existence of a
> theory does not give it credibility.
>
> There are certainly other ACPA cases (as noted, the law has been
> around since 1999). Thankfully, this has not been defined as part of
> our mandate even in the most far-reaching interpretation offered in
> the Subgroup.

Again, not sure what is that you are saying is not in the mandate of
this group. Will be glad for a clarification.

Thanks, parminder

>
> Greg
>
> On Fri, May 26, 2017 at 5:25 PM, Thiago Braz Jardim Oliveira
> <thiago.jardim at itamaraty.gov.br
> <mailto:thiago.jardim at itamaraty.gov.br>> wrote:
>
>     Dear Greg, dear all,
>
>      
>
>     In our last call, you asked me to provide citations for cases
>     where US courts assumed jurisdiction over domain names because, as
>     I said then, of ICANN's location in California. I believe I
>     suggested that there are court decisions which concluded that
>     "domain names" are "property" located within the US precisely
>     because of ICANN's location.
>
>      
>
>     I agree with you that we'll have to come back to this in more
>     detail, so let me just drop in here one case reference that, to my
>     knowledge, does not appear in the list of litigation under review
>     by our subgroup. Perhaps we should include it there. It's the NBC
>     Universal, INC. et al., v. NBCUNIVERSAL.com (378 F.Supp.2d 715),
>     from 2005. It's an interesting case and I think you are already
>     familiar with it, since you pretty much described parts of it when
>     you commented upon the point I was raising.
>
>      
>
>     As you hinted yourself, the case was based on an in rem action,
>     i.e. an action over a 'thing', and the 'thing' was the domain
>     name. And as you also said, the decision by the court to assume
>     jurisdiction in that case was prompted not so much by the location
>     of ICANN in the US, but rather by the registry's location in the
>     US. The dispute was over a .COM domain, for which the registry is
>     VeriSign. So it was on the basis of VeriSign's location in the US
>     that the court assumed jurisdiction over an internet domain name
>     as a 'thing'. Again, this was in rem jurisdiction, jurisdiction
>     over a 'thing' if you will, and this type of jurisdiction is
>     exercised over 'things' located in the territory of the forum, so
>     that the domain name was considered to be within the US because
>     the registry was a US company.
>
>      
>
>     Now, unless one denounces dominance by US companies as registries
>     of gTLDs (which, to be fair, I'm not sure is the case, even though
>     it might be), the fact that US courts can assume jurisdiction over
>     a domain name because of the registry's location should not bother
>     many. But, really, should it not? In this NBCUNIVERSAL.com case,
>     not only the individual registrant was from Korea, but also the
>     registrar was from Korea. Yet because the dispute was about a .COM
>     domain name, for which Verisign is the registry, US courts assumed
>     that the 'thing' (i.e. the domain name) was within and subject to
>     US jurisdiction.
>
>      
>
>     A last point I want to make is this, and I think it is more
>     disconcerting than the previous one. The basis on which US courts
>     assumed jurisdiction in this NBCUNIVERSAL.com case was the
>     Anticybersquatting Consumer Protection Act ("ACPA"), 15 U.S.C. §
>     1125(d). In there, 15 U.S.C. § 1125(d)(2)(A) reads as follows:
>     "The owner of a mark may file an in rem civil action against a
>     domain name in the judicial district in which the domain name
>     registrar, domain name registry, or other domain name authority
>     that registered or assigned the domain name is located...".  In
>     the NBCUNIVERSAL.com case, it was the location of the registry
>     that gave jurisdiction to US courts under that provision. But the
>     provision in question also grants jurisdiction to US courts on the
>     basis of the location of any "other domain name authority that
>     registered or assigned the domain name". As I understand it (and I
>     may be able to point to a case that supports that), ICANN
>     qualifies as such a domain name authority because assigning names
>     and numbers is what it does. So according to US laws, and we are
>     here only discussing this one particular piece of legislation,
>     there is a real possibility that US courts assume and exercise
>     jurisdiction over domain names, and over any domain name, TLDs and
>     ccTLDs, because ICANN is located within US territory, as far as
>     claims under the ACPA are concerned.
>
>      
>
>     I'm sure there are plenty more cases like this, and many others
>     that deserve our attention, and we will not have discharged our
>     mandate unless we examine and assess them all.
>
>      
>
>     Best,
>
>      
>
>     Thiago Jardim
>
>      
>
>     Thiago Braz Jardim Oliveira
>
>     Divisão da Sociedade da Informação
>
>     Ministério das Relações Exteriores
>
>     +55 61 2030 6389 <tel:+55%2061%202030-6389>
>
>      
>
>
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