Abstract: 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.
To download this paper by Noah M. Schottenstein from the Virginia
Journal of Law and Technology, see:
www.vjolt.net/vol14/issue1/v14i1_a1
- Schottenstein.pdf
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