The Kentucky appeals court has overturned the Domain Seizure order of 141 “gambling” domain names.
In a 2-1 decision the Kentucky Appeals court found the trial court, did not have subject matter jurisdiction over the case because domains are not “gambling devices” as prohibited by the Kentucky statute:
“Regardless of our view as the advisability of regulating or crimininalizing Internet gambling sites, the General Assembly has not seen fit to amend KRS 528.010(4) so as to bring domain names within the definition of gambling devices. Neither we, nor the Justice Cabinet, are free to add to the statutory definition. If domain names cannot be considered gambling devices, Chapter 528 simply does not give the circuit court jurisdiction over them.”court jurisdiction over them.”
“””Suffice it to say that given the exhaustive argument both in brief and oral form as to the nature of an Internet domain name, it stretches credulity to conclude that a series of numbers, or Internet address, can be said to constitute “a machine or any mechanical or other device…designed and manufactured primarily for use in connection with gambling.”
However, this is a good news, bad news type of decision, because all the appellate court found was that domain are not gambling devices within the definition of the Kentucky law.
The court did not issue any opinion on the bigger issues of whether domains are subject to state regulation, whether domains can be seized without due process (although one judge did mention this in a separate opinion), whether domain registrars located outside a state are can still be subject to that state’s jurisdiction or whether a registrant located outside a state can still be subject to that state’s jurisdiction.
Moreover, the Legislature in Kentucky can simply amend the current laws definition of a “gambling device” to specific include domain names and then seize the domains all over again.
So bottom line, a win is a win, and the action of the appeals court solves the current crisis, but it does not give domainers, or gambling site owners, much reason to sleep any better.