In Kremen v. Cohen the Ninth Circuit recognized a property right in
domain names, defining property as any form of intangible benefit that
is distinct and excludable. This reasoning is flawed for three reasons:
(1) it is grounded in a faulty understanding of property law; (2) it is
over-inclusive, capturing a variety of things and benefits that have
been explicitly removed from the realm of property; (3) and it is
under-inclusive, as it fails to consider a number of interests necessary
for evaluating if something should be deemed property. This doctrine,
broadly applied, would result in a massive expansion of legal interests
classified as property. The Kremen court also failed to contemplate the
collateral impact of such an expansive view of property. In addition to
providing a remedy for interference with the right to exclude, property
also functions as an interface between the owner and the society at
large, assigning a number of responsibilities and burdens to the owner.
For example, the location of property assists in determining important
questions of jurisdiction, venue and choice of law, and classifying an
intangible benefit as property means transforming it into a taxable
asset. When recognizing domain names, or any other form of intangible
resource, as property, one must carefully consider how the change in
rights will affect dependent social and legal rules -- something Kremen
failed to do. For these reasons, Kremen is an inappropriate source of
authority to rely upon when considering novel questions of intangible
property rights.
The Kremen court also failed to contemplate the collateral impact of
such an expansive view of property. In addition to providing a remedy
for interference with the right to exclude, property also functions as
an interface between the owner and the society at large, assigning a
number of responsibilities and burdens to the owner. For example, the
location of property assists in determining important questions of
jurisdiction, venue and choice of law, and classifying an intangible
benefit as property means transforming it into a taxable asset. When
recognizing domain names, or any other form of intangible resource, as
property, one must carefully consider how the change in rights will
affect dependent social and legal rules -- something Kremen failed to
do. For these reasons, Kremen is an inappropriate source of authority to
rely upon when considering novel questions of intangible property
rights.
To download and read this paper from the Virginia Journal of Law and Technology in full, see:
www.vjolt.net/archives.php?issue=41
www.vjolt.net/vol14/issue1/v14i1_a1 - Schottenstein.pdf
- Follow us on :
