Friday, 19 September 2008

Domain names as property

Yesterday, I presented what CLT call a Webinar on the subject of domain names. I was inspired to devise the presentation in the first place because it was clear that other lawyers would talk about domain names, URLs, IP addresses and other things as if they were all the same thing, so a brief technical explanation (a brief one, composed withte dubious aid of Wikipedia, being all I was qualified to compose) seemed likely to be of some utility. I then realised that there was a further substantive legal issue involved, concerning how domain names are treated in law. Are they, or are they not, property? The fact that no-one told me yesterday that I am worrying unnecessarily encourages me to post this here.

The question is still open, of course, but there is at least a strong argument for saying that domain names registered with Nominet aren't property: the terms and conditions are pretty clear about that. But in transactions, domain names frequently do get treated as another type of intellectual property - and it seems to me that this might not work, and lawyers who allow their clients to proceed on this basis are doing them a disservice.

First, contracts and other documents (including many, if not all, precedents) include domain names in the definition of Intellectual Property. This is doubtful enough to begin with, but the consequence is that the document will purport to transfer or assign the domain names in the same way as everything else included in that definition, and worse still will give warranties to the effect that the transferor owns them.

The assignment clause, taken together with the further assurance clause (of course there will be one of those, won't there?), probably serves the purpose of getting the domain name registration transferred. It's not elegant, but it works. I don't think it's right for a lawyer to present his or her client with a solution that merely works, though: our job is to ensure that it is done properly, and that means that the contract should deal with domain names in the way that the registry says they should be dealt with.

It's the warranties that worry me most. If they state that the transferor owns the Intellectual Property, and the Intellectual Property includes domain names, there's a strong likelihood that there is a breach of warranty. Indeed, if the transaction includes a Nominet registration, the warranty is patently at odds with the terms and conditions of the registration. The breach may be de minimis, but surely no lawyer should allow a client to sign up to such a warranty. The problem is that, as far as I know, the precedents that our non-IP colleagues work from lump domain names in with the IP.

1 comment:

  1. IP addresses are even worse since they are "a shared public resource and are not for sale" (from the RIPE FAQ). When applying for a block of addresses one (nominally at least) has to make a case for the use of those addresses and they are allocated on that basis and can (again more in theory than in practice) be removed if that basis changes.

    That would (it seems to me) take them out of any possible definition of property, even in the broad sweep of article 1 of the first protocol of the ECHR.

    On the other hand, IP addresses rarely matter so much to an organisation as DNS names and are rarely seen by the general public. That would (one hopes) mean that "ownership" of them would be less crucial.

    It would still be wrong (as you say) to include them within a general definition of "intellectual property".