Law.com takes a detailed look at the attempt by the Commonwealth of Kentucky to seize 141 gambling-related domain names. They draw some comparisons such as "What if China seized the domain names of U.S. Web sites promoting religions that China bans? Or what if (horrors of horrors!) Nebraska seized and shut down the domain name law.com because its cutting-edge legal content, that state believed, encourages frivolous litigation in violation of state law?" They label such a move preposterous, and suggest it is in the same vein as the actions of Kentucky."The long-term consequence is you could have any state official on a Web-site-by-Web-site basis making moral or other determinations as to whether they believe their residents should have access," said A. Jeff Ifrah, shareholder in the Washington office of Greenberg Traurig, who, along with Bruce Clark and Ian Ramsey, Kentucky partners at Stites & Harbison, is counsel to the Interactive Gaming Council. "That's a First Amendment issue, a dormant commerce clause issue and an anyone-in-the-Internet business issue."
The article also notes that the case has raised the issue of are domain names property, "an issue that some courts have struggled with and divided over in recent years." Network Solutions argued in an amicus brief that they were not property nor gambling devices, something the majority of courts have found that have considered the issue.
"Nonetheless the trial court concluded that domain names were intangible property, like patents, and the judge noted several similarly decided cases, including a 2003 decision by the 9th U.S. Circuit Court of Appeals." The next question considered was was this property located in Kentucky.
The article also quotes Matthew Zimmerman, senior staff attorney with the Electronic Frontier Foundation who says "even if the state here won in the sense that the forfeiture order was proper, it isn't the end of the story."
In the Kentucky case, he said, the forfeiture orders were not sent to the domain owner-operators, but to the domain name registrars -- the companies with which the owners register the domain name.
To read this analysis of the court case in Law.com, see: