The Interactive Media Entertainment & Gaming Association (iMEGA) has announced that the Court of Appeals of Kentucky has granted a motion to stay the forfeiture hearing for 141 Internet domain names.
The order issued yesterday prohibits Wingate from holding a forfeiture hearing scheduled for Dec. 3 and stays all action until oral arguments are held before the Court of Appeals on December 12th.
“We’re pleased that the Court of Appeals has given us the opportunity to challenge these seizures,” said Joe Brennan Jr., iMEGA’s chairman. “The commonwealth has tried to take these domains for their own financial gain, violating Kentucky law, exceeding their jurisdiction, and setting a terrible precedent in the process.”
In it’s petition, iMEGA contended that the lower court misapplied Kentucky’s “gambling devices” law in order when It comes to calling domain names gambling devices. iMEGA also argued that Kentucky’s actions violate the Commerce Clause of the US Constitution, and that the Commonwealth lacked the authority to initiate the seizure action in the first place.
“This matter has generated concerns across the online world about abuse of governmental power,” said Brennan. “Kentucky is opening the door for any government – state and local, foreign and domestic – to use what amounts to blackmail to achieve its ends. If this precedent is allowed to stand, it’s not hard to imagine a government like China utilizing this kind of seizure power to prevent free media, like the New York Times, from reaching their citizens.”
None of the 141 domain names are owned by individuals or companies are located in Kentucky.
According to reports, Kentucky Attorney General Jack Conway has apparently distanced himself from the domains case.
On Friday it the Attorney General asked to have his name removed from the Interactive Media Entertainment & Gaming Association’s court filings in the matter. Reports earlier this year claimed that the AG had refused to be drawn into, or comment on, the issue.
Yesterday we reported that the ACLU, the Center for Democracy and Technology, and the Electronic Frontier Foundation filed a petition with the Kentucky Court of Appeals, asking the court to overturn rulings on the domain seizure issue made on September 18th and October 16th by Franklin Circuit Judge Wingate.
The three civil liberties groups argued that Wingate’s order raises serious free-speech concerns and violates the Commerce Clause of the U.S. Constitution, which says the U.S. Congress has the power to regulate commerce between U.S. states. The judge also does not have the jurisdiction to force domain name registrars to turn over the domain names.
Lawyers for the groups wrote.
“If allowed to stand, the courts flawed order would needlessly create uncertainty about the basic rules governing the operation of the Internet as well as the authority of courts both inside and outside of the United States to affect behavior in other jurisdictions,” the groups wrote. “Moreover, if carried to its logical conclusion, the trial court’s order could well impose literally billions of dollars of additional costs on individuals and businesses throughout the world that have no significant contacts with Kentucky.”
Good; and as it should be.
If Kentucky (or at least the Gov) wants this kind of control, let him launch his own Internet; or own tld.
Then he/they can make all the rules they want.
Otherwise…get out of the way.
Thank goodness for iMEGA. It’s too bad that domainers have to depend upon the gambling industry for their future. Has any Domainer group filed anything in the appeal? I know the ICA filed an amicus brief in the lower court, but where is the ICA on the appeal?
Great news…thank you Mr Berkins for the detailed updates on this.
We have been frustrated lease holders of names for 15 years now. Every year we expect ICANN to do the right thing and uphold lease holders rights to their leases.
We all collectively can do something to hold ICANNs
feet to the fire. We personally all need to organize some sort of resistance organization or co-op to address ICANNs blatant ignoring of what is their fiduciary responsibility to protect lease holders rights.
If we all continue to look the other way on this matter we are in certain danger of losing our leases. Anyone have any ideas ??
Jeff
ICANN was not named as a party to this suit.
Moreover they have no horse in this this race, pun intended, so they have nothing to say about this.
It is up as you can see, to individual domain holders to protect their interest if their domain was seized and up to the rest of us to support our trade group the ICA.
iMEGA is a trade group for the gambling industry.
They are leading the charge.
What is the difference between iMEGA and the ICA.
Look at their revenue and budgets and you’ll see.
The gambling sites support their trade group so they have the money to fight.
Good lesson for all domainers here.
You want action and protection, you have to pay for it
ICANN is not necessarily some global legal body as many expect them to be for whatever reason. Not to mention your so-called legal rights are defined by your registrar’s contract and whatever applicable laws in your area, and they both don’t want to deal with a gazillion legal issues from a gazillion legal jurisdictions.
Then again, people dispute other people’s rights every other day. ICANN really can’t do anything about others doing that, especially if those others file suit in whatever court of competent jurisdiction under whatever applicable law there is.
The ICA has been in constant communication with iMEGA regarding coordination of activities in the ongoing litigation over Kentucky’s attempted domain seizures. The burden of taking the lead in this matter has fallen on iMEGA because it represents the owners of domains subject to the seizure order while ICA does not. If ICA is advised by iMEGA that the filing of an updated version of our friend of the court brief would be helpful in their ongoing appeal that request will immediately be put before the ICA Board for a decision.
As noted, the ICA did file an amicus brief in this matter on very short notice, and was the only party before the court raising matters relating to broad DNS legal and policy matters. That brief noted the long-standing and continuing federal involvement in the domain name system and the likelihood that Kentucky’s action was in violation of the Commerce Clause as well as basic principles of due process and jurisdiction. The arguments made in that brief attracted the attention of the Center for Democracy and Technology and we spoke to them about this matter at length; CDT subsequently filed its own brief asking for dismissal of the case, and was joined in that action by the Electronic Frontier Foundation and the American Civil Liberties Union.
ICA is taking the lead in exploring the introduction of preemptive federal legislation in the next Congress that would prevent repetition of Kentucky’s abuse in other states by establishing preemptive federal standards for jurisdiction and due process that would have to be met for a court or administrative order for seizure of a domain name to be enforceable. We have already had conversations regarding this concept with registries, registrars, trade associations and corporations, and public interest groups involved with Internet law and policy. Efforts to draft such a proposal will occur over the next few months, with an eye toward seeking bipartisan introduction early in 2009. Based on our discussions we would expect such a proposal to receive wide support.