Back in December of 2013, we published a post that was actually a comment by John Berryhill. The comment in itself was worthy of its own post and we published it. John was explaining why domain investors should not want domains to be considered property.
John has been actively posting on Namepros lately with regards to the battle for HeidiPowell.com. The Grandma vs the Fitness Trainer has been getting a lot of exposure. Joseph Peterson from Slanted.com has been trying to help shine as much light on the topic as possible. Others have chimed in such as StrategicRevenue.com.
John pointed out the specifics of the HeidiPowell.com case and why again domain investors should be wary of domains as property.
The whole thread at Namepros is an interesting read, here is where John mentions domains as property.
Okay, so, I took a look-see a the recent flurry of filings in Washington, and here is the state of play:
The fitness trainer had originally offered $10k to the bankruptcy trustee. As I noted above, it is the responsibility of the trustee to collect what he can on behalf of the creditors. The creditors, in this instance, are US taxpayers, since the underlying debt was to the US Dept. of Education.
After an initial round of filings in the re-opened case, the trustee was inclined to sell it back to Granny Powell for the same $10k, subject to an exemption of $7k or thereabouts, and also noting that the status of domain names as property in bankruptcy is unclear.
So… the fitness trainer has upped her offer to $20k, and provided the trustee with a brief to the effect that domain names should be considered property in bankruptcy in the State of Washington.
There are some problems with that brief, which I may go into when I have more time, but I’d like to point out what matters here.
For years, there has been this cult-like insistence that it would be somehow “good” for domainers if domain names were considered to be “property” instead of incidents to service contracts with registrars. One of the reasons for this insistence goes back to the Kremen v. Cohen case, in which a highjacked domain name was recovered on a conversion claim (the civil form of theft). The reason it was important in that case was because the uncreative lawyers who filed it, framed it AS a conversion claim, instead of any of a number of other legal claims that might have been used to recover the domain name. But because the domain name at issue was sex.com, domainers latched onto “domain names should be property” as an almost magic incantation that would universally benefit them.
Also, for years, I’ve pointed out that this insistence was going to bite someone in the ass someday, and now it has. Because if you want domain names to be property, then they are subject to assignment in divorce, various liens, bankruptcy, and property tax. If you are “buying” them from registrars, then you are also rooting for the payment of sales tax. Why domainers want those things, I have no idea. Personally, I don’t have an opinion either way. But what I do not like, in any event, are shallow arguments – even if I agree with the conclusion.
Now, the “is it property” question seems to have been admitted thus far. Rather than take the clear position that it was not property subject to bankruptcy, the debtor’s counsel filed a brief to the effect that “yes, it’s property, but wasn’t worth much” as discussed above. Well, regardless of what anyone thought it was worth, the trustee has an offer to sell it for $20,000.
So what this appears headed toward is a bidding war between whatever the fitness trainer is willing to offer, and whatever Grandma Powell is able to raise by donations.
But I want to be really clear about one point here – if you are in the “domain names should be property camp” then you are rooting for the fitness trainer’s position to prevail in this thing.
All that said, the thread title here refers to a “thief”. Thieves generally don’t offer to pay for things.
Great story always good to hear from Mr. Berryhill. Thanks for posting.
I don’t care if they are or aren’t determined to be property – this is completely asinine, and I’m not exactly without pertinent experience when it comes to such matters. Joseph Peterson and I sometimes disagree, but he nailed it right on the head in the Grandma Powell thread at DNW with what he wrote there: http : // domainnamewire . com/2017/02/24/things-arent-looking-good-grandma-heidi-powell/#comments
Now I haven’t even read this blog post, just the headline. And I’m familiar with J.B.’s stance on the property issue. I’m speaking from the heart. If there are any legal niceties or subtleties or technicalities I have seen above, the bottom line is that I’m so outraged by this that I don’t give a damn. If it was a jury, I would engage in jury nullification or whatever the civil equivalent is if need be; if I was the judge, you can be damn sure I’d rule in favor of Granny and do so convincingly. Said it before and I’ll say it again, it’s sickening. J. Peterson was a clear voice of reason as far as I’m concerned.
Berryhills stance on property is very pertinent. I am team Grandma too but this is about more than just this one domain name.
(I’ll read it later though.) π
I’ve had my estate planning done a few times, with modifications,
Based on Mr. Berryhill’s expert advice, I’m starting to rethink my domain portfolio (which is 95% .com), as well as issued patents, trademarks, etc and all intangible assets that have been designated as “property”
As far as Grandma Heidi’s position, I’m in agreement with Joseph Peterson & John Berryhill — excellent points by both of these gentlemen.
Okay I read it. Sorry about my strong language there folks. π
Well you’ve got property vs. contractual:
http : // wakeforestlawreview . com/2016/02/is-domain-name-classification-a-property-right-or-a-contractual-right-the-circuit-split-and-a-clear-path-forward/
And contractual AS property too:
http : // www . academia . edu/785507/Contract_Rights_as_Property_Rights
Although life is not just a limerick
It’s a bucket of fine legal stew
I’m new the ‘contract verses property’ debate but not new to issue of Heidi’s domain name being at stake. It seems to me that domain name ownership is a lease agreement for an address between the registrant and verisign, the company which actually owns the address. Just as a renter or lessee does not own the address they wish to use, for a short period of time, or a number of years. As long as they renter or lessee pay their rent or pay their lease payment, they get to continue to use the address; until they default or until the contract is over – but they never own the address or materials leased.
Maybe yes, maybe no, but is the contract right itself property? π
Thanks to “eminent domain” and taxation powers of governments and municipalities, we don’t really own our own homes either, even when we’ve paid off the bank’s mortgage in full. Just try not paying your property or school district taxes for a while to see who truly owns your home.
Once again from the top without the urls: π
Well youβve got property vs. contractual
And contractual AS property too
Although life is not just a limerick
Itβs a bucket of fine legal stew