In a move that flies in the face of established international guidelines, the New York Senate is pushing through a bill that would forbid registering the name of a living person with the purpose of selling the domain to that person.

The New York Senate’s bill is called “domain names cyber piracy protections act” and is championed by State Senator Betty Little (S2306).

Generally speaking, registering a person’s name solely to sell the domain to that person is a losing cause in UDRP arbitrations. But the New York bill is scary for a few reasons:

1. The law can be twisted to violate free speech. I suspect this is the reason the law was written in the first place. A politician was probably mad that someone else owned her domain name. The bill specifically states that, in order to violate the law, the sole purpose of the domain registration must be to sell it. But I can already see how this will work. Someone registers a politician’s name, attacks the politician on the site, and then the politician approaches the domain owner to buy the domain. If the registrant responds to the request then this law will be invoked. Also, the law would prohibit someone from selling a domain to another person. For example, John registers the name of a right wing politician that is pro-life. A leftist organization approaches John wanting to buy the domain to use as an outlet to attack the politician for his political views. The proposed law would forbid this.

2. It flies in the face of established internet governance. If New York can pass its own laws, why can’t other states and countries pass their own regulations as well? New York really can’t control much outside its own state, as they “admit” in the bill:

“In a civil action commenced under this section, a domain name shall be deemed to have its situs within the state if the domain name registrar, registry, or other domain name authority that registered or assigned the domain name is located within the state.”

I wonder if the bill’s writer knows what a registry is. The biggest registrar that needs to pay attention to this law is New York-based Register.com.

3. The bill is being championed as a way to protect identity theft. Seriously. According to a Senator Little press release,

“The New York State Senate today approved several proposals to combat the growing problem of identity theft, including legislation sponsored by Senator Betty Little that targets cyber piracy.”

Politicians always like to use scare tactics to push through their own agendas. This is a clear case.

The good news is that the senate added a provision that is sure to backfire:

“In addition to injunctive relief, the court may fine the registrar, domain name registry, or other domain name registration authority, one thousand dollars for each day the violation occurs. The court may also order the transfer of the domain name as part of the relief awarded.”

They want to fine ICANN? They want to fine the registrars? These two groups have both political and monetary muscle. New York might have been able to pull this off if the bill only went after the individual domainer. But trying to fine registrars—and worse, trying to exert control over ICANN—is a bold and potentially dangerous move. (See my note above about jurisdication. ICANN isn’t located in New York).

The language of S2306 follows:

Introduced by Sens. LITTLE, ALESI, BRUNO, DeFRANCISCO, FARLEY, FUSCHIL-LO, HANNON, LARKIN, LEIBELL, LIBOUS, MALTESE, MARCELLINO, MARCHI, MAZIARZ, MEIER, MORAHAN, PADAVAN, RATH, SALAND, SKELOS, VOLKER, WINNER—read twice and ordered printed, and when printed to be committed to the Committee on Consumer Protection

AN ACT to amend the general business law, in relation to cyber piracy protections and the unlawful registration of domain names

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

1 Section 1. The general business law is amended by adding a new article
2 9-C to read as follows:

3 ARTICLE 9-C
4 CYBER PIRACY PROTECTIONS; DOMAIN NAMES
5 Section 146. Short title.
6 147. Definitions.
7 148. Unlawful registration of domain name.
8 149. Civil remedies.
9 § 146. Short title. This article shall be known and may be cited as
10 the “domain names cyber piracy protections act”.
11 § 147. Definitions. For the purposes of this article, the following
12 terms shall have the following meanings:
13 1. “Domain name” means any alphanumeric designation that is registered
14 with or assigned by any domain name registrar, domain name registry, or
15 other domain name registration authority as part of an electronic
16 address on the internet.
17 2. “Internet” means the international computer network of both federal
18 and non-federal interoperable packet switched data networks.
19 3. “Traffic in” refers to transactions that include, but are not
20 limited to, sales, purchases, loans, pledges, licenses, exchanges of

(page break)
1 currency, or any other transfer for consideration or receipt in exchange
2 for consideration.
3 § 148. Unlawful registration of domain name. 1. No person shall regis-
4 ter a domain name that consists of the name of another living person, or
5 a name substantially and confusingly similar thereto, without that
6 person’s consent, with the specific intent to profit from such name by
7 selling the domain name for financial gain to that person or any third
8 party.
9 2. A person who in good faith registers a domain name consisting of
10 the name of another living person, or a name substantially and confus-
11 ingly similar thereto, shall not be liable under this section if such
12 name is used in, affiliated with, or related to a work of authorship
13 protected under title 17 USC, including a work made for hire as defined
14 in 17 USC 101, and if the person registering the domain name is the
15 copyright owner or licensee of the work, the person intends to sell the
16 domain name in conjunction with the lawful exploitation of the work, and
17 such registration in not prohibited by a contract between the registrant
18 and the named person.
19 § 149. Civil remedies. 1. Upon the commission of a violation of this
20 article, an application may be made by the public service commission to
21 a court having jurisdiction to issue an injunction against the regist-
22 rar, domain name registry, or other domain name registration authority,
23 and upon notice to the respondent of not less than five days, the court
24 may award injunctive relief, including the forfeiture or cancellation of
25 the domain name. If it shall appear to the satisfaction of the court
26 that the respondent has committed a violation of this article, the court
27 shall enjoin and restrain any further violation without requiring proof
28 that any person has, in fact, been injured or damaged thereby.
29 2. In addition to injunctive relief, the court may fine the registrar,
30 domain name registry, or other domain name registration authority, one
31 thousand dollars for each day the violation occurs. The court may also
32 order the transfer of the domain name as part of the relief awarded.
33 3. In a civil action commenced under this section, a domain name shall
34 be deemed to have its situs within the state if the domain name regist-
35 rar, registry, or other domain name authority that registered or
36 assigned the domain name is located within the state.
37 § 2. This act shall take effect on the one hundred twentieth day after
38 it shall have become a law; provided, however, that any rules and regu-
39 lations necessary for the implementation of this act may be promulgated
40 on or before its effective date.