At the beginning of August I wrote about the long-running saga of terrorists’ victims who are pursuing ‘state sponsors of terrorism’ (specifically, Iran, Syria, and North Korea) through the US courts for damages for the injuries they have suffered.

Several years along that path they managed to obtain Writs of Attachment in the Federal court district in Washington (D.C.) courts ordering that the ccTLDs of those respective countries be seized in part-payment of the damages they are owed.

ICANN, fairly predictably, became involved at this point. It went to Court in DC asking that the Writs be quashed. It appeared to based its argument on a number of points, starting with the theory that TLDs are different from other domain names, and are not property. See my earlier article..

Federal courts apply the law of the State in which they sit, on matters such as asset seizure.

The Court ruled on the 10th November and the full judgment has just become available.

ICANN has been successful in quashing the Writs attaching the TLDs.

However, as any legal observer will tell you, the actual outcome of a case is not that important (except to the winners and losers!). What is important is the legal reasoning; the rationale and the dicta.

In other words, on what legal principles is a judgment made. Does it create new law, for example, which can bind the decisions of future courts (‘binding precedent’). And are there any other legal principles discussed: these can form what are called ‘persuasive precedent’ and/or obiter dicta).

Well, in this case, the outcome seems to turn on fact, rather than any estoteric legal principle.

The Court appears to have found as fact that the domain names that had prospectively been seized by the Plaintiffs (Claimants) had the nature of a contractual right.

What this means for the Plaintiffs is that under the statute law of DC, rights arising under a contract cannot be seized as part of a judgment. This technicality means that the Court did not have to rule whether ccTLDs are property or not: it just had to be satisfied that, if it were property, it was not the sort of property that the relevant law (statute) allows to be seized by a creditor (in D.C.) , which ICANN has fairly easily been able to show.

Other commentators (e.g. the DomainPulse people) have written the court has ruled that ccTLDs are not property. This turns out to be incorrect.

[DomainPulse updated and revised their coverage since this was written and they have now corrected this.]

Interestingly, the Court chose explicitly to say in the judgment that it has not decided that ccTLDs were not property.

On page 8 of the judgment, in footnote 2, the Court says: “The Court notes that judicial decisions have found domain names to be a form of intangible property. See e.g. Kremen v Cohen 337 F.3d 102,1030 (9th Cir 2002). But the conclusion that ccTLDs may not be attached in satisfaction of a judgement under DC law does not mean that they cannot be property.”

This appears to give us a clue that the Court might have considered that ccTLDs are no different to gTLDs and no different to domain names such as SEX.COM (which was the property at issue in Kremen v Cohen).

It simply found that ccTLDs were, like other domain names, in the nature of a contractual right, which under DC law cannot be seized by creditors.

As this was sufficient to dispose of the current application, no binding ruling has been issued, so another court could decide either way. But from the above quote, it’s fairly clear that the court clearly seems to think that Kremen v Cohen would have been relevant if it had had to decide whether TLDs are property.

ICANN is embroiled in an ongoing civil court case between victims of terrorism and the government’s of three countries, in the case of Rubin & ors v Iran and other actionswhich are in federal court in the District of Columbia. (Michele Neylon reporting).

Essentially the form of the current Claim is that ICANN are seeking to quash a court order that requires them to transfer the management of three Top Level Domain names to the successful Claimants in a number of separate actions against the Governments of Iran, Syria and North Korea.

ICANN’s full Application to Quash has been published here.

When analysis ICANN’s argument it appears to be that

(a) domain names, at the top level which consist of two letters only (i.e country-code domain names, or “ccTLDs) cannot be regarded as property;

(b) that even they are property they aren’t the sort of property that can be seized in law;

(c) that even if they are seizable property, they aren’t owned by the countries concerned;

(d) even if they are owned by the countries concerned, they aren’t inside the court’s jurisdiction;

(e) even if they are in the jurisdiction, a US Federal law giving immunity to foreign governments prohibits the seizure;

(f) even if that law doesn’t prohibit seizure, ICANN acting along cannot transfer ownership

(g) forced transfer would destroy the inherent value in the property.

The property question is particularly interesting and relevant, since many ccTLDs have invested major resources in developing their registries, and at least at first blush, ICANN appears to be saying they have no rights whatsoever to the delegation.

Even to raise such an argument appears that it might destabilise the smooth functioning of the Internet’s unique naming system . . .

ICANN has been taken to an Independent Review Proceeding by Manwin Licensing International.

Independent Review is a form of arbitration, which is provided for in ICANN’s By-laws.

What is ironic, is that this suit appears to be filed on behalf of a number of major players in Internet

pr0n

That is, the people behind such hit websites as ‘YouP*rn’ and ‘Br*zzers’ among others. (No, I’m not going to hyperlink them — Google is your friend if you really are curious ).

Internet porn has been major beneficiaries of the US First Amendment and the constitutional law doctrine that protects distasteful speech (such as ‘Net porn itself, or demonstrating about military presence in Afghanistan or similar at soldiers’ funerals!)

But it seems to be sauce for the gander tine when someone else wants to exercise their rights of free expression (that is to say, expression in the form new TLDs, and specifically in the form of .XXX) in a way which the pornsters don’t like.

In Europe the equivalent of the First Amendment is Article 10, which all Governments are under a legal obligation positively to protect.

It says: “Everyone has the right of freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without inference by public authority and regardless of frontiers.”

Pretty clear.

It’s worth pointing out that free expression is not unlimited.

Restrictions can be placed on it, for example, balancing and protecting the rights of others. (Libel laws are an obvious example; there are many others).

The difference in approach can be see that, in the Land of the Free protesting at a soldiers funeral and causing distress to the bereaved is constitutionally guaranteed expression (Snyder v Phelps) where as in the UK you’d probably get locked up for Behaviour Likely To Cause a Breach of the Peace.

Burning the flag is perfectly acceptable behaviour in the USA, while burning poppies on Armistice Day attracts a criminal conviction, albeit attracting a fine. (Poppies are worn in remembrance of the dead on Armistice Day, our equivalent of Veterans Day).

However, the default position in Europe as in the USA, remains, that you have the right of expression, unless a qualifying factor is present and can be shown to be.

Article 10 goes on to say say: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.

So surely this would mean that presumption must be that proponents of newTLDs can express themselves in the way the want to unless restrictions are necessary in a democratic society.

Censoring .XXX does not protect health or morals — there’s plenty enough internet porn under .COM, and I don’t think Manwin are arguing here for the content restrictions that this caveat might allow, anyway. They probably don’t want to open that door!

The only other aspect in 10(2) that they could pray in aid is the protection of the rights of others — in this case the very real property rights of Manwin and their allies. After all, intellectual and intangible property are equally property as any other kind.

And it’s a reasonable point, particularly as Luxembourg headquartered Manwin is, on the face of things, a European company, and Manwin therefore inherently has these Convention rights

But the starting point of Article 10 is that the expression must be allowed, and it’s only after considering the balancing exercise of considering the harm to Manwin’s Article 1 (Protocol 1) property rights, could the censorship they seem to be seeking be lawful.

And, this, I suggest, will be an uphill struggle.

Although Manwin’s property rights are in essence, and in law, exactly the same property rights that, for example, Google and Facebook have in their brands, Manwin’s task is made no easier by the unredeeming nature of their own content.

And the harm that they claim — well, why should they have special treatment above the thousands of WIPO cases over other, non-porn relating cybersquatting. A proper UDRP process and timely access to the Courts, is really all they can demand, and .XXX, and the forthcoming newTLDs will, at ICANN’s insistence, deliver this.

In conclusion, it seems to me that Manwin’s Independent Review Claim is just a case of a squeaky wheel not realising it is already sufficient lubricated, and demanding more oil.