Judge Thomas Wingate's Ruling today in the matter of the Commonwealth of Kentucky vs. 141 Internet Domain Names has dismissed all objections brought by representatives of the 141 Internet domain names subject to seizure and forfeiture to the Commonwealth of Kentucky. This was the result of an order issued by the same court late last month that DomainNews has been reporting on. The ICA's response and details about the decision follow...
The decision issued late on Thursday by the Circuit Court Judge Thomas D. Wingate was delayed 24 hours because of "computer problems," but when it was finally released, the judge dismissed all arguments brought by the domains' legal counsel in an attempt to have the seizure nullified. Also opposing the state's actions were representatives from entities including the Interactive Media Entertainment and Gaming Association (iMEGA), the Interactive Gaming Council (IGC), the Poker Players Alliance, the Internet Commerce Association (ICA), and counsel for Network Solutions, Inc., a major California-based domain registrar servicing some but not all of the domains ordered forfeited to the state.
In his decision to affirm the forfeiture, Judge Wingate dismissed serious counterpoints about Kentucky's jurisdictional reach while defining within his opinion that an Internet domain name is a "device" used in gambling, thereby making it illegal under Kentucky law. Similarly, the judge dismissed the PPA's "friend of the court" argument that poker was predominantly a game of skill, rather than chance, and should not be treated collectively along with other Internet gambling cites. Judge Wingate dismissed that argument in its entirety, noting that the Kentucky statute dictates an element of chance without specific regard as to proportions.
A more serious challenge under Judge Wingate's consideration was the matter of Kentucky's jurisdictional reach, in seizing domain names that are neither housed nor serviced in Kentucky, yet remain generally accessible via the Internet. The judge dismissed the argument that a domain name's presence has as its situs (a term defining a real-world locale of control for ephemeral entities, such as domain names) either where it is owned or housed. Defense lawyers brought up language in the Anticybersquatting Consumer Protection Act to this effect, which Judge Wingate ruled did not apply because he did "not believe that Congress did not intend to foreclose other bases…," in effect declaring that Internet domain disputes are states-rights matters in this case.
Judge Wingate went on to state that the maintenance of a website or Internet advertisement alone is not enough to establish presence in Kentucky, and that any websites which are providing information only would have the seizure order affecting them rescinded at a later date. However, he noted that for the vast majority of the sites in question, the domain names served as the focal points for the services provided, stating that "the domain name is indispensable in maintaining the player's access to the virtual casinos…." Judge Wingate also declared that Internet geoblocking – the banning of all computers traced to Kentucky-based Internet service providers – was one way of bringing the sites into alignment with Kentucky law.
Judge Wingate also denied that any of the organizations involved in advancing the domain-name owners' defense had standing in this matter. The PPA and ICA never claimed standing, but filed briefs as friends of the court, while Network Solutions was denied official standing in the case until such time as it openly identified its relationships with some of the impacted domain names (and thereby risk submitting itself to Kentucky jurisdiction in doing so). Both the Internet Commerce Association and iMEGA were also denied standing by Judge Wingate. iMEGA's exclusion was curious in that the same organization had been granted associational standing in its federal case in seeking to have the Unlawful Internet Gambling Enforcement ACT (UIGEA) overturned on the federal level. Judge Wingate ruled against iMEGA here based in part on the Commonwealth's assertions that the domain owners could and should be present in the court to identify themselves, and that iMEGA, without identifying its own specific ownership and interests, could not stand in for the owners themselves in any part of this matter.
Nine affected domains sent representation to the hearings, described in Judge Wingate's opinion as the "Group of 7" and the "Group of 2." Judge Wingate refused to grant their motions to dismiss on the grounds that they had not specifically identified the owners of the domains in question. The "Group of 7" consisted of playersonly.com, pokerhost.com, sbglobal.com, sportsbook.com, sportsinteraction.com, mysportsbook.com and linesmaker.com. The "Group of 2" consisted of goldenpalace.com and goldencasino.com. According to Judge Wingate's decision, none of the other affected domains had direct legal counsel present at the proceedings.
The decision by Judge Wingate gives the affected domains 30 days to institute geoblocking to be removed from the forfeiture portion of the case, with a final hearing set for November 17th, 2008. It is unknown at this time as to any plans for the affected domains regarding an appeal. A deeper analysis of the decision and its ramifications will appear on a future date here at PokerNews.
ICA Response to Kentucky Seizure Ruling
Jeremiah Johnston, President of the Internet Commerce Association, today issued this statement on behalf of the ICA in response to the Opinion and Order of Judge Thomas Wingate of the Franklin Circuit Court in the matter of Commonwealth of Kentucky vs. 141 Internet Domain Names:
"The Internet Commerce Association is extremely disappointed in the decision issued by the Court this afternoon. This is a dangerous decision not just for domain name investors and developers but for all who value commerce and free speech on the Internet. The Court has incorrectly held that domain names are a form of property subject to in rem jurisdiction anywhere on the face of the Earth where their associated websites may be viewed on a computer screen. Even worse, it has endorsed the seizure of domain names absent notice and hearing, violating basic principles of due process. If the logic of this decision was broadly adopted then Internet commerce and speech would be at risk on a global basis. For example, U.S. companies conducting legal business activities in this nation could be subject to seizure orders for their domain names issued by foreign courts for lack of compliance with local law and regulation merely because their websites can be viewed abroad. Even more worrisome, the courts of totalitarian regimes could issue seizures orders against domain names used to spread truth and advocate freedom to their repressed populations. The remedy proposed by the court – geographic blocking so that none of the subject websites can be viewed from within Kentucky – is infeasible for individual domain names which could be subject to different laws and regulation in thousands of jurisdictions worldwide.”
“The ICA does appreciate that Judge Wingate has indicated that he will continue to let us participate in this case as friends of the court. Given the high stakes for freedom, commerce, and the rights of domain name owners, the ICA plans to remain actively engaged in this critically important litigation.”
Source: DomainNews.com on October 17th, 2008 - Posted by Roland G. Buck - Chief Editor