Thursday, November 13, 2014

Is a ccTLD Property? Not in the District of Columbia


This decision comes from an ongoing litigation where plaintiffs, in order to satisfy  a debt, sought to attach as property the ccTLDs for Iran, Korea, and Syria.  ICANN moved to quash, and the court agreed, holding that ccTLDs are not property subject to attachment.  The court wrote
There is little authority on the question of whether Internet domain names may be attached in satisfaction of a judgment. Indeed, no reported decision of any American court appears to have decided the specific issue of whether a ccTLD may be attached. The Virginia Supreme Court's discussion of these issues in Network Solutions Inc. v. Umbro Int'l, Inc., 529 SE2d 80 (VA. 2000) is helpful in illuminating the questions presented.  There, the court held that a domain name could not be garnished by a judgment creditor under the relevant Virginia statute because it was "inextricably bound" to the domain name services provided by the registry operator. Id. At 86. The court elaborated: "[W]hatever contractual rights the judgment debtor has in the domain names at issue in this appeal, those rights do not exist separate and apart from [the registry] services that make the domain names operational Internet addresses."  Id. The court further observed that allowing garnishment of a registry's services as part of garnishing a right to a domain name would mean that "practically any service would be garnishable." Id. At 86-87.

The Court finds this reasoning persuasive as applied to District of Columbia [where this suit was filed] attachment law as well.  The ccTLDs exist only as they are made operational by the ccTLD managers that administer the registries of second level domain names within them and by the parties that cause the ccTLDs to be listed on the root zone file.  A ccTLD, like a domain name, cannot be conceptualized apart from the services provided by these parties.  The Court cannot order plaintiffs' insertion into this arrangement.  Cf. United States ex rel. Global Bldg. Supply, Inc. v. Harkins Builders, Inc., 45 F.3d 830, 833 (4th Cir. 1995) (holding that "where the property is in the form of a contract right, the judgment creditor does not 'step into the shoes' of the judgment debtor and become a party to the contract, but merely has the right to hold the garnishee liable for the value of that contract right").

While interpretations of the DC Code are sparse, they tend to support this understanding of ccTLDs.  The District of Columbia Court of Appeals has held that "money payable upon a contingency or condition is not subject to garnishment until the contingency has happened or the condition has been fulfilled." Cummings Gen. Tire Co. v. Volpe Constr. Co., 230 A.2d 712, 713 (DC 1967).  Thus, payments under a contract that are conditioned upon completion of the work contracted for are not subject to garnishment because the "existence and amount" of the debt is "contingent and uncertain." Id. While this suit does not squarely fit within the rule articulated by the court in Cummings General Tire, that rule does illuminate the fact that courts may not, through garnishment proceedings, insert a judgment creditor into an ongoing contractual arrangement that necessarily requires continued work or service to have value.  Here, the ccTLDs only have value because they are operated by ccTLD managers and because they are connected to computers around the world through the root zone. DC law does not allow their attachment.
 Stern v. The Islamic Republic of Iran, Civil No. 00-2602 (DCDC Nov. 10, 2014).  See also ICANN's legal filings.
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