Should Domain Names be Considered ‘Contracts for Service’ or ‘Property Rights’?
The legal status of domain names is one of the most hotly debated topics with regards to evolving property rights and how they should be applied to technological and intellectual property ‘innovations’ in cyberspace. At present, there are two opposing factions on this topic: On one hand, there are those who maintain that domain names should be considered as contracts for services, which originate from the contractual agreement between the registrant and the registrar. On the other hand, we have the parties who contend that domain names are intangible property rights that reside with the domain name holder.
As the law has evolved, property has been defined as “an abstract right or legally constructed relationship among people with respect to things” or “a bundle of rights, powers, privileges and immunities that define one’s relationship to a resource.” These theories have been beneficial more so for normal property rights, but law courts have found it quite challenging when attempting to determine how these concepts apply to domain names.
In this article, Octave’s Managing Director Niel Harper discusses service contract rights and the ‘bundle of rights’ property theory, as well as examines case law in a number of jurisdictions, and present an argument for why domain names should be considered as ‘property rights’.