Terrorism Victims Reassert That Domain Names Are Property

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By Joseph Wright

Aug. 28 — An important early Internet law decision misconstrued the nature of domain names, according to an Aug. 27 filing to the U.S. Court of Appeals for the District of Columbia Circuit.

Victims of state-sponsored terrorism seeking to attach several countries' Internet top-level domains to satisfy existing judgments said the Virginia Supreme Court, in Network Solutions Inc. v. Umbro, 529 S.E.2d 80, 259 Va. 759 (Va. 2000), failed to consider that a domain name could be both a contract for services and property, erroneously ending its analysis after finding they were products of a contract between a domain name registrar and registry.

The federal district court relied heavily on Umbro in finding that the top-level domains Weinstein sought weren't attachable property under D.C. law. In addition to challenging its merits, Weinstein said the district court erred in applying Umbro because of important differences between the D.C. and Virginia attachment statutes. Va. Code § 8.01-511, governing attachment of property held by third parties, limits attachment to property constituting a “liability,” a limitation not present in its D.C. counterpart, D.C. Code § 16-544.

Weinstein also argued that Umbro dealt with domain name registrations, which are subject to temporal limitations, unlike top-level domains which are not limited in time.

Instead, Weinstein said, the court should have looked to California and Minnesota statutes subjecting all nonexempt property to attachment. Courts have found that domain names are attachable in each state, in Office Depot, Inc. v. Zuccarini, 596 F.3d 696 (9th Cir. 2010) and Sprinkler Warehouse Inc. v. Systematic Rain Inc., 859 N.W.2d 527 (Minn. Ct. App. 2015). (The Minnesota Supreme Court has agreed to review Sprinkler Warehouse.)

Country Codes Sought for Attachment

Weinstein served subpoenas and writs of attachment on ICANN in June 2014 as a third party holding assets belonging to Weinstein's judgment creditors: the governments of Iran, Syria and North Korea). ICANN denied holding any property for those governments, then successfully quashed the writs and subpoenas.

Weinstein additionally argued that the district court abused its discretion by failing to allow discovery related to its writs before quashing the subpoenas. See said the appellate court must remand the case to permit discovery if there is any possibility the discovery would show that the top-level domains are attachable property. Weinstein sought discovery of a variety of documents related to country-code top-level domain (ccTLD) redelegations and depositions related to the monetization of ccTLDs in order to demonstrate their value and transferability.

Weinstein also renewed her alternative argument that the federal appellate court should certify the attachment issue under D.C. law to the District's own court system.

ICANN's response is due Sept. 28. Oral argument has not yet been scheduled.

Raines Feldman LLP and Berkman Law Office LLC represent Weinstein. Jones Day LLP represents ICANN.

To contact the reporter on this story: Joseph Wright in Washington at jwright@bna.com

To contact the editor responsible for this story: Thomas O'Toole at totoole@bna.com

Weinstein's brief can be found at: http://www.bloomberglaw.com/public/document/Susan_Weinstein_et_al_v_Islamic_Republic_of_Iran_et_al_Docket_No_/1