Of Process and Product: Kremen v. Cohen and the Consequences of Recognizing Property Rights in Domain Names by Noah M. Schottenstein

By October 24, 2010 Disputes No Comments

In Kremen v. Cohen the Ninth Circuit recognized a property right in domain names, defining property as any form of intangible benefit that is distinct and excludable. This reasoning is flawed for three reasons: (1) it is grounded in a faulty understanding of property law; (2) it is over-inclusive, capturing a variety of things and benefits that have been explicitly removed from the realm of property; (3) and it is under-inclusive, as it fails to consider a number of interests necessary for evaluating if something should be deemed property. This doctrine, broadly applied, would result in a massive expansion of legal interests classified as property. The Kremen court also failed to contemplate the collateral impact of such an expansive view of property. In addition to providing a remedy for interference with the right to exclude, property also functions as an interface between the owner and the society at large, assigning a number of responsibilities and burdens to the owner. For example, the location of property assists in determining important questions of jurisdiction, venue and choice of law, and classifying an intangible benefit as property means transforming it into a taxable asset. When recognizing domain names, or any other form of intangible resource, as property, one must carefully consider how the change in rights will affect dependent social and legal rules — something Kremen failed to do. For these reasons, Kremen is an inappropriate source of authority to rely upon when considering novel questions of intangible property rights.

The Kremen court also failed to contemplate the collateral impact of such an expansive view of property. In addition to providing a remedy for interference with the right to exclude, property also functions as an interface between the owner and the society at large, assigning a number of responsibilities and burdens to the owner. For example, the location of property assists in determining important questions of jurisdiction, venue and choice of law, and classifying an intangible benefit as property means transforming it into a taxable asset. When recognizing domain names, or any other form of intangible resource, as property, one must carefully consider how the change in rights will affect dependent social and legal rules — something Kremen failed to do. For these reasons, Kremen is an inappropriate source of authority to rely upon when considering novel questions of intangible property rights.

To download and read this paper from the Virginia Journal of Law and Technology in full, see:
www.vjolt.net/archives.php?issue=41
www.vjolt.net/vol14/issue1/v14i1_a1 – Schottenstein.pdf