[Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs

Wed Aug 23 15:04:05 UTC 2017

Just to add a bit of info from Wikipedia on the seizures I mentioned:

"The domain name seizure process used by Operation In Our Sites was codified in 18 U.S.C. § 981(b)(2), which provides a legal framework for property seizures by the government. Before the seizure, government officials are supposed to investigate suspected websites to find out if they actually purchase or access counterfeit items. The government then contacts the copyright holders to confirm ownership of the intellectual property and suspected infringement. Following the investigation, ICE and NIPRCC officials present the resulting evidence to the U.S. Attorneys, and check the domain name registration.

If the domain name was registered in the U.S., the government petitions a magistrate judge to issue a seizure warrant for the domain name. With the warrant, the domain name's title and rights are transferred to the U.S. government. After the seizure, the government is supposed to send a written notice of the forfeiture deadline to the website operator within 60 days from the seizure date. The website owner can file the claim against the government within 35 days after receiving the notice. If the owner files a claim, the government has 90 days to prove that the property is subject to forfeiture. If the owner does not make a claim against the seizure, or the government successfully proves a valid seizure, the domain name is forfeited to the government.[9][10]"

This could be applied to TLDs, right?

Regards

Jorge

-----Ursprüngliche Nachricht-----
Von: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] Im Auftrag von Jorge.Cancio at bakom.admin.ch
Gesendet: Mittwoch, 23. August 2017 08:52
An: nigel at channelisles.net; ws2-jurisdiction at icann.org
Betreff: Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs

Dear all,

please excuse my ignorance, but have domain names not be seized as "assets" or "property" in the US under the application of domestic law?

Wikipedia info is here: https://en.wikipedia.org/wiki/Operation_In_Our_Sites

If a second level domain is subject to potential seizure, why not a TLD?

Regards

Jorge

-----Ursprüngliche Nachricht-----

Von: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org> [mailto:ws2-jurisdiction-bounces at icann.org] Im Auftrag von Nigel Roberts

Gesendet: Mittwoch, 23. August 2017 08:44

An: ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>

Betreff: Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs

Milto

There is no authority at all for this Claim, in law, as I suspect you know.

As I suspect you also know very well, the nearest evidence that might support such a Claim is that one of the contentions in /Weinstein/ was that a ccTLD (three of them, if I remember correctly) could be garnished under the "state law" of DC. (I know technically, DC is not a state of the Union, but I don't know the US correct term-of-art for 'state or capital region')

Unfortunately or fortunately (depending on one's point of view) it was not necessary for the Court to decide on this claim by the Judgment Debtor. This means that the idea that US courts might either have either or both of :-

(a) legal jurisdiction over the ownership of the rights represented by a ccTLD delegation

(b) the desire to exercise such (lack of desire to address a particular contention usually leads judges in common-law systems to be able conveniently to find a creative ratio that finds other reasons that the case can be decided

remains a completely open question.

It seems to me that additional hints for future litigants (as you know, common-law judges do that too) appear to have been given in the Weinstein judgment as to whether the rights in law enjoyed by a ccTLD manager (whatever they might be) MIGHT constitute property or not, but this remarks don't even amount to /obiter dictum/ - they are just hints at a possible road of future judicial travel and any court seised of a future Claim is entirely free to ignore them.

And, even so, those hints don't address the question of /in rem/ at all.

As you can see, I (along with some others in the ccTLD community) havefollowed, and analysed this case carefully and in some detail.

We are aware of no other possible legal authority that addresses whether ccTLDs are property (let alone whether that property, if it is property, is subject to /in rem/ jurisidiction).

Unless others have additional information?

Nigel Roberts

PS: I would also commend others to read Farzaneh and Milton's ccTLD paper.

On 22/08/17 22:31, Mueller, Milton L wrote:

>

>

>

>

> Issue 3: In rem Jurisdiction over ccTLDs

>

>

>

> Description: US courts have in rem jurisdiction over domain names as a

> result of ICANN's place of incorporation

>

>

>

> What is the evidence for this claim?

>

> --MM

>

>

>

> _______________________________________________

> Ws2-jurisdiction mailing list

> Ws2-jurisdiction at icann.org<mailto:Ws2-jurisdiction at icann.org>

> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

>

_______________________________________________

Ws2-jurisdiction mailing list

Ws2-jurisdiction at icann.org<mailto:Ws2-jurisdiction at icann.org>

https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

_______________________________________________

Ws2-jurisdiction mailing list

Ws2-jurisdiction at icann.org<mailto:Ws2-jurisdiction at icann.org>

https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ws2-jurisdiction/attachments/20170823/921dbc9c/attachment-0001.html>