More from ICANN Court Filing: Not Only Are ccTLD’s Not Property But They Don’t Belong To The Country

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Earlier we wrote about ICANN filing several motions to quash a federal court ruling that ccTLD registries could be seized to satisfy judgements against the underling country saying ccTLD’s are not considered property and therefore it can’t be attached by plaintiffs.

We read through some more of the 289 page memorandum ICANN filed  in support of the motions and ICANN is position is only are not the ccTLD registries not property but the ccTLD’s don’t even belong to the underlying country. ICANN analogies that ccTLD’s registries are simply like Zip codes and domain names are like street addresses.

ICANN goes further to say:

A ccTLD cannot be physically held, it is not capable of a precise definition because it is constantly changing as new domain names are added and deleted, there is no established market within which a ccTLD can be purchased or sold, and a ccTLD holds no intrinsic value.

Put simply, defendants In this case (the underlying countries) do not “own” these ccTLDs.

“”A ccTLD is simply the provision of routing and administrative services for the domain names registered within that ccTLD; it is not property.””

“”Other established principles within the Internet community also refute any notion that a country “owns” the ccTLD assigned to it.”

The following is from the memorandum:

A. ccTLDS ARE NOT PROPERTY SUBJECT TO ATTACHMENT.

Under District of Columbia law, attachment proceedings must be directed at “property,” which is defined as a “judgment debtor’s goods, chattels, and credits.” D.C. Code § 16-544.

A ccTLD is not property.

A ccTLD cannot be physically held, it is not capable of a precise definition because it is constantly changing as new domain names are added and deleted, there is no established market within which a ccTLD can be purchased or sold, and a ccTLD holds no intrinsic value.

Moreover, a ccTLD, by itself, has no functional utility without all the routing and administrative services – provided by the ccTLD manager and members of the Internet technical community – that accompany and support its use.

A ccTLD is simply a two-letter code (or related non-ASCII equivalent), corresponding to a particular country, which is used to help organize the registry of second-level domain names registered within the top-level domain.

If a specific domain name can be analogized to a street address, a ccTLD can be thought of as a zip code.

That zip code may encompass many different addresses, and those addresses in turn may correspond to certain places on the Internet that people can access, such as websites. But the street address itself is not property, nor is the zip code in which the street address exists.

Rather, a ccTLD simply identifies for computers the general vicinity of the Internet in which a specific address and information is located.

To the extent a ccTLD is capable of a legal definition, it is a collection of technical and administrative services, rather than property.

This is precisely what the Ninth Circuit found in Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980 (9th Cir. 1999). There, the court was called on to determine whether the .COM TLD was a “product” or a “service,” and the court ruled that the TLD fell “squarely on the ‘service’ side of the product/service distinction.” Id. at 984. As the Ninth Circuit correctly analogized, “NSI’s role [as the manager of .COM] differs little from that of the United States Postal Service: when an Internet user enters a domain-name combination, NSI translates the domain-name combination to the registrant’s IP address and routes the information or command to the corresponding computer . . . NSI does not supply the domain-name combination any more than the Postal Service supplies a street address.” Id. at 984-85.

Likewise, in assessing whether domain names – which are listed within the Internet’s TLDs – can be considered “property,” numerous courts from various jurisdictions have found that they cannot.

For instance, in Dorer v. Arel, 60 F. Supp. 2d 558, 560 (E.D. Va. 1999), the Eastern District of Virginia found – in judgment execution proceedings – that “there are several reasons to doubt that domain names should be treated as personal property subject to judgment liens.” Chief among these reasons is that “a domain name registration is the product of a contract for services between the registrar and registrant . . . Thus, a judgment debtor ‘owns’ the domain name registration in the same way that a person ‘owns’ a telephone number.” Id. at 561. In Network Solutions, Inc. v. Umbro International, Inc., 529 S.E.2d 80, 86 (Va. 2000), the statement that “[c]oncerns about ‘rights’ and ‘ownership’ of [ccTLD] domains are inappropriate.

Put simply, defendants do not “own” these ccTLDs.

A ccTLD is simply the provision of routing and administrative services for the domain names registered within that ccTLD; it is not property.

And because a ccTLD is a collection of critical and complex Internet services, a ccTLD is not attachable or property.

Put another way, Plaintiffs may not use their Writs of Attachment to interject themselves into – or become party to – this complex web of services relating to technical matters, much less interfere with and disrupt them.

Because the services provided by ccTLDs are not transferable “property,” the Writs of Attachment must be quashed. See Rochford v. Laser, 91 Ill. App. 3d 769 (Ill. Ct. App.

ccTLDS ARE NOT “OWNED” BY THE COUNTRIES TO WHICH THEY ARE ASSIGNED.

The Writs of Attachment must also be quashed because, even if “property,” these ccTLDs are not owned by the defendants – any more than a city or neighborhood “owns” their zip code. D.C. Code § 16-544.

None of the defendants purchased the ccTLDs assigned to their countries, and there is no established procedure authorizing the defendants to sell these ccTLDs. Nor do the defendants have the power to order ICANN or any other entity to take any actions with respect to the ccTLDs.

As stated in ICANN’s ccTLD guidelines, Section 9.1.3, “the ccTLD is operated in trust in the public interest and that any claim of intellectual property rights in the two-letter code in itself shall not impede any possible future change of Registry.” (Enson Decl., ¶ 14, Ex. M at ¶ 9.1.3 (emphasis added); see also Enson Decl., ¶ 13, Ex. L at Clause 4.2.)

In fact, according to ICANN’s rules and procedures, defendants do not possess the sole power to determine or control what entities will operate the ccTLDs assigned to their countries. (Enson Decl., ¶ 6, Ex. E at p. 2.)

In addition, “[g]eneral principles of property law require that a property owner have the legal right to exclude others from use and enjoyment of that property.”

Here, Plaintiffs cannot point to a contract, agreement, treaty, statute or court case providing defendants with a “legal right” to exclude others from the use and enjoyment of these ccTLDs.

Nor can Plaintiffs point to any evidence indicating that the defendants have attempted to assert such a legal right.

In fact, the entire premise of a ccTLD is that it will be used and enjoyed by many who choose to register, operate and visit domain names within that ccTLD.

The defendants’ lack of ownership interest in the ccTLDs here is fatal to the Writs of Attachment.

See Peterson v. Islamic Republic of Iran, 938 F. Supp. 2d 93, 97 (D.D.C. 2013) (ruling that attachment of electronic funds transfers were inappropriate because Iran had no property interest in the ETFs); Estate of Heiser v. Islamic Republic of Iran, 885 F. Supp. 2d 429, 438 (D.D.C. 2012) (same); Bunkers Int’l Corp. v. Carreirs Pitti, P.C., No. 1:11CV803 (LMB/IDD), 2012 U.S. Dist. LEXIS 40332, at *9-10 (E.D. Va. Mar. 22, 2012) (refusing to allow the attachment of an Internet domain name because the name was not registered to the defendant).

Other established principles within the Internet community also refute any notion that a country “owns” the ccTLD assigned to it.

In 2000, the Governmental Advisory Committee, an independent group of governments that provide ICANN with public policy advice regarding ICANN’s activities, agreed to another set of principles stating, among other things, that “[n]o private intellectual or other property rights should inhere in the ccTLD itself.” (Enson Decl., ¶ 13, Ex. L at Clause 4.2). And Clause 5 of these principles describes the governments’ role as “represent[ing] the interests of the people of the county or territory for which the ccTLD has been delegated” (id. at ¶ 5.1), maintaining “responsibility for public policy objectives” and “ultimate policy authority” (id. at ¶ 5.2), and otherwise following “the general principle that the Internet naming system is a public resource in the sense that its functions must be administered in the public or common interest.” (Id. at ¶ 5.3).

A theory that these ccTLDs are property “owned” by the defendants runs contrary to these bedrock principles of the Internet.

And these are principles acknowledged by many of the ccTLD managers themselves. In particular, numerous .ccTLD managers have publicly supported ICANN’s ICP-1 and its statement that “[c]oncerns about ‘rights’ and ‘ownership’ of [ccTLD] domains are inappropriate.

Statement that “[c]oncerns about ‘rights’ and ‘ownership’ of [ccTLD] domains are inappropriate. It is appropriate, however, to be concerned about ‘responsibilities’ and ‘service’ to the community.” (Enson Decl., ¶ 7, Ex. F at § b (emphasis added); ¶ 15, Ex. N (Letter from Drafting Committee, Alternate ccTLD Best Practices Draft (3 March 2000).)

Put simply, defendants do not “own” these ccTLDs.””

ICANN Responds To Seizure Order of The .IR Registry, saying ccTLD’s Are Not Property

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A couple of weeks ago we told you that the attorney for the victims of a terrorist attack got a federal court to order the seizure of the .IR domain registry which is the ccTLD for Iran to help satisfy a judgement the victims  held  against the republic of Iran.

As first reported by webpronews.com,  (The Internet Corporation for Assigned Names and Numbers) told a U.S. federal court in the District of Columbia, that ccTLD (country code Top-Level Domains ) can’t be considered property and therefore it can’t be attached by plaintiffs.

ICANN General Counsel and Secretary John Jeffrey filed various Motion to Quash in the US federal court and ICANN’s memorandum in support of its motion is 289 pages.

“While we sympathize with what plaintiffs may have endured, ICANN’s role in the domain name system has nothing to do with any property of the countries involved.”

We explained in our Motion to Quash, that country code Top-Level Domains (ccTLD) are part of a single, global interoperable Internet which ICANN serves to help maintain, he continued. “ccTLD’s are not property, and are not ‘owned’ or ‘possessed’ by anyone including ICANN, and therefore cannot be seized in a lawsuit.”

“ccTLD’s are not property, and are not ‘owned’ or ‘possessed’ by anyone including ICANN, and therefore cannot be seized in a lawsuit.”

Here is part of the memorandum:

“Plaintiffs hold several money judgments against the governments of Iran, Syria and North Korea (collectively, the “defendants”). Plaintiffs endeavor, with the Writs of Attachment, to attach the .IR, .SY and .KP country code top level domains (“ccTLDs”), related non ASCII ccTLDs, and supporting IP addresses (collectively, the “.IR, .SY and .KP ccTLDs”), all of which represent a space on the Internet for use by the citizens of Iran, Syria and North Korea.

ICANN holds no property to attach and ICANN does not have the authority or capability to effectuate a “transfer” of the .IR, .SY and .KP ccTLDs to anyone, including Plaintiffs.

“Well established legal principles dictate that the .IR, .SY and .KP ccTLDs are not subject to attachment, for multiple reasons.

First, a ccTLD simply is not “property” subject to attachment.

Second, although operating for the benefit of the people of Iran, Syria and North Korea, respectively, the relevant ccTLDs are not “owned” by the defendants or anyone else, for that matter.

Third, the .IR, .SY and .KP ccTLDs are not “located” in the District of Columbia or even the United States, and therefore are beyond the reach of Plaintiffs’ Writs of Attachment.

Fourth, even if these ccTLDs could be characterized as “property in the United States of the defendants,” this Court would lack jurisdiction over these proceedings, according to the Foreign Sovereign Immunities Act. Fifth, ICANN does not unilaterally have the capability or authority to transfer the .IR, .SY or .KP ccTLDs to Plaintiffs.

Finally, a forced transfer of the .IR, .SY and .KP ccTLDs would destroy whatever value may exist in these ccTLDs, would wipe out the hundreds of thousands of second level domain names registered therein by various individuals,businesses and charitable organizations, and could jeopardize the single, global, interoperable structure the Internet. For these reasons, individually and collectively, Plaintiffs’ Writs of Attachment must be quashed”

ICANN’s filings can be found here. The “Writs of Attachment” can be found here.

 

ICANN Publishes “Five Things to Know About ICANN’s 2015 Budget”

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In a blog post ICANN Published “Five things to Know About ICANN’s 2015 Budget”

Typically ICANN just releases its draft budget and then lets the domain blogs and other during and through the comment period rip into the budget & dissect the numbers.

The Draft 2015 CAN Operation Plan and Budget is 80 pages.

Here ICANN seems to be doing damage control in advance by releasing its own notes along with the budget

Here is the post:

“If you are wondering what the future holds for ICANN, you can see our best estimate in the draft FY 2015 ICANN Operating Plan and Budget.

The 80-page document reflects weeks and weeks of planning and number-crunching to provide the clearest view of our future activities and initiatives.

Haven’t had a chance to read it yet?

Let me sum up the five things you should know about ICANN‘s FY 15 budget.

We listened to you and made improvements.

I’m proud of the work that went into this year’s budget. We were able to make many improvements – as you, the community, requested. These include a highlights section and a complete overview of resources and expenses with comments on year-on-year variances by category and by function. We’ve also included a description of the activities of the organization planned for each portfolio. This budget should satisfy your requests for more data, whether you want to see a high-level overview and analysis or drill into the details of a specific project.

Our expenses are stable.

From 1 July, ICANN‘s expenses will remain stable across all departments, except for selected growth areas pertaining to the gTLD service platform, IT infrastructure and Contractual Compliance.

Growth will level off in coming years.

The budget reflects the growth we had to undertake in order to build the underpinnings needed for a global organization with participants from all over the world. Today, we’re offering new and expanded services to more and more people and groups in more regions. And we’re doing this at levels that would not have been possible a few years ago. We are very close now to being where we need to be as a mature global organization, and together we should plan for budget growth to level off in the coming years.

More details on costs relating to the IANA stewardship transition are forthcoming.

As you know, the FY 15 budget cycle was underway when the NTIA announced that it would transition the stewardship of the IANA functions in April. We developed a rough estimate of $4.7 million in costs and added it to the budget as a placeholder. Now, several months later, we have a much better understanding of the project and will soon publish a more detailed cost breakdown, broken into the four tracks of work I’ve written about before.

Your scrutiny is key to our accountability.

We post our draft operating plan and budget so that we are accountable to our community and stakeholders. This means that your review and comments are a critical part of how we remain accountable to you. We welcome your ongoing scrutiny.

This year’s Public Comment period had interesting results. We lengthened the comment period to 54 days (it was 43 days last year), yet we still received fewer contributions than the previous year. We proactively reached out to individuals and groups that provided comments in previous years. We want to learn more about how we can be more effective in getting your feedback.

Next steps.

We are currently reviewing public comments and will post a summary and analysis later in July. The document will be revised as needed and will likely be considered for approval by the Board in late August.

We’ve improved the budget – but there is always room for further refinement. I intend to continue my focus on it, to ensure it is efficient and reflective of our priorities, year after year. Your close attention reinforces our mandate for accountability.””

CEO of .In (India) Alleges 40% of ccTLD’s Left Out Of IANA Transition Coordination Group

According to a press release we received today from Dr Govin who is the CEO of the .IN ccTLD Registry which is the ccTLD for India is claiming that about 40% of all ccTLD’s are being left out of the IANA Transition Coordination Group as part of ICANN’s plan to move away from US oversight.

Basically Dr. Govin says that 104 of the 259 ccTLD are not being representative in this process.

Balazs Marto of .HU (Hungary) also signed the email:

The USG has recently announced its intent to transition its procedural role of administering changes to the authoritative root zone file – the database containing the lists of names and addresses of all top-level domains – as well as serving as the historic steward of the DNS.

Whilst the stewardship role of the NTIA has been exemplary, this initiative is welcome, and of the 255 country code Top-Level Domains (ccTLDs) that exist today, 240 were in stable operation with fully automated updating of the IANA Root Zone data, prior to the creation of ICANN which occurred on September 18, 1998.

Historically, ccTLDs have formulated policy based on a multi-stakeholder model, addressing their user community needs based on the cultural, operational and legal frameworks in which the Registry is founded.

Today the ccTLD community can be categorised into two groups:

i) 151 ccTLD Registry Operators are members of the ICANN Country Code Names Supporting Organization with the function to propose Policy to the ICANN Board that impacts members of the ccNSO (and for ccNSO members to opt-out of decisions taken by the ICANN Board if they so wish), and;

ii) 104 ccTLD Registry Operators who have chosen not to cede any authority to the ICANN Board and are wholly responsible for the secure and stable management of their respective ccTLD Registry.

The 104 ccTLD Registry Operators in ii) above develop their naming policies outside of ICANN in a manner that best serves their respective Internet communities, recognise Industry Best Practices, accord with laws of the jurisdiction in which the Registry is incorporated, and operate within a diverse set of cultural, technical and legal frameworks.
There is no case in which ICANN or IANA may amend these policies or undermine foundation document RFC-1591 upon which the assignment of the ccTLD occurred, and there is no intervention by any external party (even the US Government) in their implementation.

With the IANA transition now in sight, the Internet community is entering a crucial phase in which the details of new arrangements need to be developed and finally agreed.

Yet, a significant section of the ccTLD community is being proactively excluded from the Transition Coordination Group.
Dr Govind, CEO of the body which manages the Indian ccTLD Registry .IN said, “Clearly the process has already been captured by a subset of the ccTLD community. The selection process controlled by the ccNSO resulted in all four seats being assigned to their members. A significant section of the ccTLD Registry operator community do not share the objectives of the ccNSO membership are now excluded from the process
.

While the Selection Committee did have non-ccNSO community representatives, not a single non- ccNSO ccTLD Registry Operator was ultimately chosen as a representative, despite two highly qualified and experienced candidates offering to serve (and even share a seat) on the Transition Coordination Group to represent the diversity of ccTLD Registry operations.”

As Registry Manager of .HU, Balazs Martos, says “I am very concerned that the ccNSO seem to feel they speak for the whole ccTLD Community when dealing with every IANA matter. They do not, .HU is an IANA service user, but we are not a member of the ccNSO. I would much prefer representation from the non- ccNSO Registry Operator community on the Transition Coordination Group as well, otherwise our position is easily excluded from the process and retaining the status-quo much more desirable.”

If fragmentation of the Root Zone management function is to be avoided, it is essential that any transition process respects, represents and unites the whole ccTLD community, something that the current IANA Transition process being managed by ICANN is not doing. Members of the Coordination Group have stated they were willing to increase the number of participants to be as inclusive as possible; however ICANN refuses to do so.

Dr Govin (CEO .IN ccTLD Registry) GOVIND@nixi.in

Balazs Martos martos@iszt.hu

ICANN Selects Marrakesh, Morocco As The Site for ICANN 52 To Be Held In February 2015

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The ICANN Board has selected Marrakesh, Morocco as the site for ICANN 52 to be held February 8th-12th, 2015.

In the Preliminary Report of the Regular Meeting of the ICANN Board released last night,

This meeting will be in the Africa region

This is an Organizational Administrative Function that does not require public comment.

For more information about Marrakesh you can click here.

ICANN 51 is being held in Los Angeles, from October 12th-16th, 2014.