homestead

[blackpower]

I am watching "The Westerner" with Gary Cooper and apart from being a great movie it got me thinking about homestead principle; i wonder how it would apply to domains
The homestead principle in law and in ethics is the principle by which one gains just ownership of an unowned resource by performing an act of original appropriation. Appropriation could be enacted by putting an unowned resource to active use (as with using it to produce a product), joining it with previously acquired property (as with placing it in a pocket) or by evidently marking it (as with livestock branding). Proponents of intellectual property hold that ideas can also be homesteaded by originally creating a virtual or tangible representation of them. Homesteading is one of the foundations of the capitalism and libertarianism ideologies.

[Jay]

It all comes down to whether domain names are tangible or intangible property, and whether there is actually a meaningful distinction between these two forms of property. In the sex.com case, the court ruled that domain names could not be considered tangible property (http://caselaw.findlaw.com/us-9th-circuit/1483800.html), because they weren't accompanied by a certificate (like shares). As such the original owner was not compensated when sex.com was 'stolen' from him. But this decision has been much criticised.

Anyway, complex stuff, and I'm not a legal expert. But it raises a question - why can't registrars issue certificates for registered domain names? Maybe they want to reserve the right to take them back from you whenever they like (such as in UDRP cases).

[blackpower]

homestead principle is about 'resources', not 'property'

[Jay]

Well it's about making use of the resource. What does that mean in the case of domain names? The obvious example is developing websites on domains. But it could be argued that websites are separate to domain names, hence they can be sold separately (unlike a house). One could argue that buying and selling domains is a form of utilisation. So too is parking. But many argue that these are not legitimate uses. There are disputes over what constitutes legitimate use, what cybersquatting entails, etc.

[blackpower]

i wonder if anybody argued this defense in court... seems interesting

[Jay]

Well in several WIPO cases, attempts to develop domains tend to confer a greater recognition of legitimate ownership, as opposed to cybersquatting. I think there's been an increasing shift to recognising domain trading as a legitimate activity, particularly with generic names. So I think the homestead principle underpins a lot of the legal decisions around domain names, but I've never heard it referred to explicitly.

[Drewbert]

Homesteading is what some of the "alt" TLD owners (both ASCII and IDN) tried to argue. Didn't go that well for them.