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

[Greg Shatan]

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

Greg

On Fri, May 26, 2017 at 5:25 PM, Thiago Braz Jardim Oliveira <
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 <+55%2061%202030-6389>
>
>
>
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>
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