The Internet Commerce Association (ICA) filed a “friend of the court” brief yesterday on the Kentucky domain name seizure.
ica-amicus-brief (Adobe Reader Required)
The brief attacks the governor action on several grounds.
First the Kentucky law which was cited by the state in taking the action relates to “Mechanical Gambling Devices” which domains simply are not under the state law’s definition.
Second the brief attacks the ruling for referring to domain names as property. The brief points out that Domain names have generally been ruled to be “contractual rights” rather than property.
Third the brief challenges Kentucky’s jurisdiction to seize “property” in the form of domain names, since none of the seized domains were owned by a registrant in Kentucky, nor were any of the registrars of the domains located in Kentucky.
The brief then objects to the auction on the basis that the federal government has “established and orderly transfer of a domain name” citing ICANN, UDRP’s and the Anti-cybersqatting Consumer Protection Act (ACPA), all which basically supersede state action.
The brief was submitted by Merrill S. Schell and David A. Calhoun of the Louisville firm of Wyatt, Tarrant & Combs with Phil Corwin listed as “Of Counsel”
This decision will impact ALL DOMAINERS.
If the decision is someone allowed to stand than any city or state can seize domains based on existing laws or new laws that would be passed to allow seizure.
Once again its time to support the ICA.
This has been an expensive proposition for the ICA and they desperately need your financial support.
Please go to the the ICA site and make a donation.
The ICA now accepts paypal as well so you can make an instant contribution to pay your share of their work.
“Once again its time to support the ICA.”
Give me a break. When it was time to support one of their own, less capitalized members, they were told by the ICA and Michael Collins that “The ICA cannot get involved in a member’s legal proceedings”.
Unless your own company or group is well funded the ICA will not support your cause. Yet, they want every domain owner to support their organization without any oversight to how and for whom these membership funds will directed towards.
It’s time for real transparency from the ICA. They must take input from all groups big and small and act on everyone’s behalf, not just a privileged few.
Ken
The ICA has to pick and chose there battles very carefully.
They are underfunded.
They can only afford to take up issues that have wide implications for all domainers, like the Kentucky action.
The ICA also agreed to take a position on a case involving mymobi.com in which the .mobi is trying to get adopted a position that would give a registry that right to any domain containing the extension.
You don’t want to support the ICA fine, then hire your own attorney to protect the interest of domainers.
Hire your own lobbyist.
Start your own organization.
Do something.
But just to complain about what others are doing that is not going to help any of us.
“They are underfunded.”
So were we at the time, and when the chips were down the ICA turned their back on us. Ask Michael Collins what ever happened to the article about our case on the ICA’s website from last year. Let him tell you that after reloading their website that he “didn’t have room for our article anymore”.
Our company was very proactive and we did many things on our own to support our case and to get the word out to the public. Even Michael felt this could have been precedent setting and used it as part of a drive to bring in new membership. We supported him and the ICA in using our case towards that endeavor. A part of our case also involved USPTO filings. In the end we spent almost 50k on legal fees and we eventually won through settlement.
“Do something.”
We did, for ourselves and in support of the ICA when others would not. It’s the ICA who chose not to support one of their own.
Ken
You did something for yourself.
You did something to protect a domain you owned.
What are you doing to protect my domains or the industry as a whole?
“What are you doing to protect my domains or the industry as a whole?”
I am voicing my own position on where I feel the ICA is not transparent or protecting the rights of “all” domain owners as they claim. We canceled our membership when we realized that the ICA was not here for smaller domain owners, which is the general population of this industry. We did this well before the closure of our own case and well before Rick S. came to the same conclusion about the ICA.
We need organizations to help protect the industry as a whole. What we don’t need are representatives who claim to support everyone, when their actions prove otherwise. That’s where transparency and commentary like mine are needed in order to work towards an organization that truly represents the whole and not just the few they chose, no matter how justified they feel in doing so.
If and when that happens we would consider rejoining. I’m certain you’re safe with the ICA, you’re a Gold member, we were just associates.
Ken,
You have a grave misperception. The ICA’s charter is not to serve as a welfare program, slush fund for INDIVIDUAL disputes, or UDRP aid society be those “well funded groups or indivduals” or not. Rather, its charter clearly outlines its role in core legal issues as they pertain to the INDUSTRY as whole. Certainly, you can objectively distinguish between the two.
I have a grave “perception”. That we would be expected to donate to the ICA and pay membership fees as well as let the ICA use our own causes that cost us into the tens of thousands of dollars in court; just to watch the ICA tell us they won’t help one of their own members and pick and chose what they want to get behind. That’s not equal representation.
We would have welcomed one of these “friend of the court” briefs when we filed.
Welfare program, absolutely not, but support to the welfare to those who supported the ICA (BIG or small).
“… as they pertain to the INDUSTRY as whole”
Which portion of the INDUSTRY? From where we stand it’s the more capitalized at the top. Not the whole or those who can’t afford the higher membership fees.
Nice post – the response is also great
Ken,
The grave misperception continues. Its both absurd and myopic to expect the ICA to foot or even cover part of your 50k legal bill. Just because a member pays into ICA does not mean the ICA “liable” for its members legal dispute bills. That is what an insurance company is for. And no, the ICA is not writing domain insurance policies. That is not its mission.
The ICA is a lobby effort to help write or rewrite legislation that helps shape laws and policies which head off potential future challenges and disputes and protect the sanctity of generic domain names. That’s its basic charter. It seems you fundamentally do not understand the ICA’s specific mission focus.
The ICA is not running off to pay specific members’ domain dispute bills so do not deceive this audience that that is occuring. Its not. And there are no special services legal services for higher contributing members so stop trying to deceive this audience on that front as well. Your wild assertions lack any factual support and are completely unfounded.
As Mike adroitly noted, the Kentucky issue affects ALL domain registrants. That is what is meant by the INDUSTRY. So, by definition, it affects YOU too. If you have contributed to the ICA, you are getting what you are paying for–the ICA’s involvement to prevent this move from becoming (a) legal and (b) a precedent. In fact, its in YOUR best interest to contribute more to the ICA so future issues like this one may be headed off before they are even started, saving you potentially another 50k or more down the road.
You are perceiving “support” with money. That misconception has only come from YOU. It’s what you chose to spin from what you’ve read. Such boastful statements. Why don’t you put up your domain contact in your next post “jblack”. Hiding?
It would be absurd to expect the ICA to foot any portion of a member’s legal bills. We never asked for that. We asked for support on the issue of what we were fighting against, whether that was spreading the word or even filings of support like they are doing now. After their membership drive off the back of our case ran it’s course they dropped us from their radar.
There were plenty of other ICA members perfectly willing to pick up names of ours that had expired at the time, do to the fact that all our resources were going towards our case. Things were tight. Yet, none would help support by buying any from us when we were selling them to raise funds. Examples:
WestOrlando.com – picked up in drop by Steve Morales (simplygeo) then sold on his site to “raise funds” for the ICA. Simply ironic.
DaytonaBeach.biz – picked up in drop by Ron Jackson (DNjournal) when during this same time we were consistantly keeping Ron updated on our case. He never once wrote anything about us and he had every excuse in the world for not doing so. Even though this case was unfolding right in his own back yard. Agenda?
Just check the whois records on DomainTools.com and look up Semoran LLC on Google and you’ll find all the proof you’ll need. This all happened while our case was still pending.
They’ll eat their own just to survive.
Ken
“””I’m certain you’re safe with the ICA, you’re a Gold member”””
During this year I have bought some personal issues to the ICA including the Tucows problem I discussed publicly.
The ICA voted against me on that.
I voiced an opinion that registrars should not be able to hold on to the expired domains of their customers to the ICA.
The ICA didn’t vote my way.
So why do I still support the ICA?
We need it.
If you have a better alternative I will consider it.
But as we sit here today with CADNA trying to get a bill to passed, which will negatively effect every domain owner; States taking domains away from their owners with no notice or hearing; Hundreds of new domain extensions coming, we need representation.
It’s just that simple.
The issue is bigger than just you.
The issue is bigger than just me.
I can appreciate your last post MHB and I also agree with most of what you’ve said there as well. Let me be clear. I don’t want the ICA to go away, we need more groups like this. It needs to be cleaned up. What I don’t support is how the ICA treats its lower ranking members. It creates a hierarchy and from our position the ICA falls in line with that.
First thing, get rid of membership rankings. Members support with what they can. That whole idea of a member site logo is an idea I gave Michael during our case but I never suggested it be used in that way. It ends up creating a class system within the organization.
Second, set up a forum on the ICA site that is open to everyone and be active in it. There’s less than a dozen posts there since it was set up. Not very transparent from the ICA nor its membership base.
Lastly, if the issue of funds is so important to Michael and anyone else on the paid staff with the ICA then get an outside job and donate their time and money to the group. Isn’t that what they expect everyone else to do?
Ken
I actually have been pushing the ICA to open up more board sets to all members, regardless of their level of membership and they agreed to do it.
Now as they discussed at the TRAFFIC show they are looking for domainers from all membership levels to step up, volunteer their time and take a leadership role in the ICA.
Any takers?
Ken,
I am sorry that you are disappointed in the level of support that you received from ICA and from its members. However, as Michael Berkins clearly explained, we do not offer a legal defense fund as a membership benefit. We have to pick battles that impact the industry as a whole. We devote our limited resources to a few precedent setting cases.
You benefited by my most passionate plea for help. Not before or since have I asked by email and in an article published on InternetCommerce.org for members to consider helping someone with their legal expenses. Unfortunately, your case did not receive a sympathetic audience. The article was removed months after it was published during a website rebuild. Copying articles from the old site was a laborous process due to formatting problems. I made the decision to pick the most historically valuable articles to carry over to the new website. The article asking members to support your defense was not copied to the new site.
Michael Berkins is a Gold Member and someone who provides extremely valuable input on a regular basis, but he does not get special consideration for the expenditure of association funds. I am sure that if you paid attention to this blog, you would know that he was recently very disappointed in a decision that ICA made about an issue that he wanted us to take up. Despite his great contributions to ICA, both financially and of his time, the decision of the Board went differently than he desired and expected.
We are making progress in improving transparency and in bring more diversity to the ICA Board. Michael has been a great help in that regard and I thank him. Please contact me at http://internetcommerce.org/contact_us if you would like to serve our industry by participating in ICA leadership.
Michael, my respect for you is increased even more today as I read how you still call pasionately for your readers to support ICA inspite of past dissapointment on ICA position on an issue that was important to you personally.
Thanks for the offer Michael but at this point I will decline. I feel better as an outside unfettered voice.
This topic of the ICA not funding an individual member keeps coming up here but it’s an issue I never raised and I have also clarified that. Michael C., you told me that same thing on the very first phone conversation we ever had back in mid 2007 and at that time I concurred. I’ve always understood that and the fact is we never directly asked the ICA for any funding. We asked for support to raise awareness of our case to the public at large as we felt the ICA was best suited for that, and you did that in the beginning. You also put the word out that we were attempting to raise funds for the case. In return for that we agreed to let the ICA use our case as a means to promote new membership in the ICA.
You yourself said at one point to me that you couldn’t find anyone within the ICA to purchase our names to raise funds. Yet, some of the same members of the ICA chose to take advantage of our legal struggle and pick up some of our names on the drop. One was even auctioned off to raise funds back for the ICA. Now that’s pretty nefarious by any measure. We found out from many outside domain owners that they wouldn’t help simply because they felt the ICA was directly involved. Not many trusted the ICA back then. After all that we experienced we understood at least some of that frustration.
We had plenty of support for our case though, from phone calls, to emails, to posts on our blog and forums. The fact is there were only a handful who were not. At one point we even had a second lawyer helping our case pro bono. Trying to perpetuate the latter is irresponsible.
Removing our article from the ICA website during our case, without even telling us, and then saying you couldn’t fit it on the new site is ridiculous. The
fact is our article, which was more than just asking for help, was the only article not moved to the new site. I checked for that at the time when it occurred
and I had to contact you to find out why it happened. Hell, I would have been fine if you simply pushed it over to the forums on the ICA site. But, you didn’t even do that.
See, what I believe is that our case served its purpose for you and your push to increase membership and when things started looking tight for us you decided the well ran dry and you pulled the ICA away. Well, you pulled back too soon because even though we can’t discuss the settlement (NDA) I can tell you we did alright in the end, no thanks to the ICA. Just go to the USPTO site and look at the filings there. The PTO clearly shows their position on the matter and that was the biggest help.
Use and trademark your best domains people. Investing your hard earned money in that will go farther than anything else in protecting your domain names.
“You yourself said at one point to me that you couldn’t find anyone within the ICA to purchase our names to raise funds. Yet, some of the same members of the ICA chose to take advantage of our legal struggle and pick up some of our names on the drop. One was even auctioned off to raise funds back for the ICA. Now that’s pretty nefarious by any measure.”
Dude, now you are way, way over the top. Once again, its not the ICA’s job to help you or anyone else find buyers for their names. Take responsibility and do it yourself; there are dozens of auctions, forums, blogs, Ebay etc to sell names. No excuses! And wait, you did not have 7 dollars to renew a name?? (You not only had a legal problem, you had logic, math, and priority problems too.) And now you “blame” respected domain owners for “taking advantage” of you including one who even donated what he paid for?? Un-freaking real.
As a now revealed non-paying ICA member, you are already in debt–the ICA leader took time (time = money) to address your rant. So you got something for nothing. This is the week of monetary bailouts, so I guess everyone feels entitled to something now. I’ve truly seen it all now….
“not many trusted the ICA then”. Yet another totally random act of unsupported nonsense. Speak for yourself dude.
Listen tough guy, next time post your address and don’t hide behind an anonymous “jblack”.
The only one ranting is you and you’re all over the map with falsehoods I won’t even begin to get into because I don’t even know who you are. Why bother, just to feed your complex? Let your opinion be known. Shout it out as loud as you like, it’s your right.
No one’s going to take you seriously until you step out from behind the shadows and be a man. Seriously “dude”.
You’ve made a complete moron of yourself with your own words, you really should stop while you are so far behind.
UPDATE
http://www.thedomains.com/2008/10/07/kentucky-hearing-held-today/
Update ….
We are in the process of starting our own trade group. More information will be released as we move forward.