Re: [DNS] domain-name on-selling?

Re: [DNS] domain-name on-selling?

From: Mark Davidson <davidson§>
Date: Thu, 02 Dec 1999 13:01:56 +1100
Seems to me that Ari's points, whilst some are laudable, are essentially railing
against the realities of life. Taking them in turn:

Aristedes Maniatis wrote:

> on 2/12/99 9:48 am, Mark Davidson at davidson&#167; wrote:
> > Interesting question posed by Stephen. Makes me want to ask a few questions
> >
> > If my business has a domain, and I sell my business, why should I not be able
> > to sell my domain with the business?
> Of course. By I would suggest that this is very different situation to
> buying selling domains without an associated business.

So it is ok to sell domain names in some cases - which means we need to know when it
is NOT ok to do so. Please provide a solution to this Ari, if you have one.

> > Like real estate, some domains will be worth more than others. What is wrong
> > with that?
> Domains are not real estate.
> If Real Estate was similar to a domain, it would cost a trivial registration
> fee per square metre. Can you imagine a world where anyone could own
> property by paying $130 every two years? And then not do anything with it,
> just in case one day it became valuable.

Yes. It happens all the time around the world, and even in Australia (though not so
often because real estate prices tend to be higher here than elsewhere). This is
essentially how some property developers make their living. I would say this is much
the same as the actions of domain reservationsists now.

> Meanwhile others are prevented from
> using it for farming, housing, or whatever....

Yes - the theory is that our free market economy will make sure there is an
efficient use of resources by pricing things according to market value, so our
society/laws allow someone to lock up use of land where they buy the land/right to
use the land (or not use it as the case may be).

One may have an objection to a particular piece of land not being used, because one
can see a use for it, but that doesn't mean one is entitled to make the owner use it
in that way - you can always buy the land if you consider it worthwhile and put it
to the use you consider appropriate.

> Domains are not real estate.

Of course domain names are not real estate. But they are a relatively new creature
and *very* akin to real estate. EG1, all land is owned by our country, which allows
individuals to have and acquire ownership rights to different parcels of land (all
domain names are accessible, ultimately, at the whim of our government - but
individuals are allowed to have and acquire rights to different specific domain
names). EG2, each specific parcel of land is unique (each domain name is unique).
EG3 rights over a parcel of land may in whole or part be bought/sold/licensed to
others (the owner of a domain name can arrange to sell or allow others to use the
whole or part of a domain).

I think Ari meant that he didn't think domain names should be treated the same as

> >
> > If no-one else wants a domain and I register it, why shouldn't I be able to
> > sell it to the highest bidder?
> Because domains should be associated with a particular business. The whole
> point of the policy is to eliminate generic domains which have value
> outside of the business they are attached to.

Here's the nub, I think. Why "should" domain names be associated with a particular
business? Please don't quote the terms and conditions for registration of domain
names back to me - the flip side to this would be to ask why, as a matter of policy,
generic domain names "should" be eliminated (my view is that it is literally
impossible to eliminate all "generic" names - for a number of reasons, including
that no-one can agree on what a generic domain name actually is).

> Of course it is a shame that the managers of seem to be so easily
> subverted by money, politics or some other pressures when it comes to
> enforcing that policy equally...., ...
> etc....etc...

I understand and sympathise with the concerns which you and others (including some
of my clients) have expressed. One solution would be to allow everyone to register
generic names ... then the policy could hopefully be enforced more equally. But I
don't want to ignite another round of discussions on this issue - I'm sure the list
has seen enough of me on this ...

> > If someone's rights are being infringed, they can choose to do something about
> > it. If no rights are infringed, why shouldn't someone be able to buy and then
> > on-sell domains?
> Because this is a very lawyer response to the world, Mark. Sure we can look
> at the world in terms of individual profit and loss, but what about the
> opportunity cost of locking away thousands of useful domains in the hope of
> making profit in 5-10 years? Imagine setting up a 'real' company and being
> told that the appropriate domain will cost you $200,000 because someone has
> been sitting on it in the very hope that they can blackmail you.

Much like a property developer "locking away" potentially useful pieces of land in
order to turn a profit -  again, I don't see any real difference here. If you say
people shouldn't be able to do it with domain names for those reasons, don't you
have to adopt the same reasoning about real estate?

> And then the other argument. Why must everything be about money and value?
> By creating an artificial wealth in the domain system, millions of dollars
> are being locked away in a wealth that doesn't create anything useful.
> To illustrate with a parallel example: to operate a taxi requires a taxi
> plate worth approximately $200,000. The rent on that comprises a great
> amount of the $130 (?) a taxi driver must pay to operate a cab for 8 hours.
> That means that cab fares are considerably more expensive than in a system
> where cab plates are freely available or available or the basis of some
> condition other than money.

Attractive as these idea are, my realistic (some might say cynical) assessment is
that revolution on this level is not going to be achieved by changing the way we
deal with domain names. If you want to argue about money and value and their
importance in our society, the WTO seems to be the place to be at the moment ;^)

> >> In short, although I am not the sort of person who registers domains in order
> > simply to on-sell them, I don't see what is wrong with doing it - so long, of
> > course, as no-one is misled, and no trade mark or other rights are infringed.
> > Perhaps the answers to these questions  will show me where I am missing the
> > point.
> Possibly. But you are a lawyer :-> And our law training has been to see
> everything in terms of rights and duties and infringment. Even then, IP law
> is far to unsophisticated to cope with concepts which change almost daily.

I confess, I am a lawyer. Mea maxima culpa! I don't think that our legal
qualifications are that relevant here.

Thanks for your thoughts Ari - I think I understand where you're coming from; my
view is that this issue will be settled by people who *must* deal with economic
issues, so anyone who wants their solution adopted *must* address these issues.


Received on Thu Dec 02 1999 - 11:52:36 UTC

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