Realspace Sovereigns in Cyberspace: The Case of Domain Names

Title: Realspace Sovereigns in Cyberspace: The Case of Domain Names

Research Question: How do realspace sovereigns respond to the challenges posed by cyberspace, particularly in the context of domain names?

Methodology: The authors used a combination of legal analysis and critical discourse analysis to examine the United States' response to international disputes over domain names, specifically focusing on the Anticybersquatting Consumer Protection Act (ACPA). They analyzed the ACPA's provisions related to both adjudicative and prescriptive jurisdiction, and critically evaluated the constitutionality and effectiveness of these provisions.

Results: The authors found that the ACPA's provisions related to adjudicative jurisdiction, such as 15 U.S.C. § 1125(d)(2), which allows a trademark owner to seek cancellation or transfer of a domain name, are problematic. They argue that these provisions are based on a misunderstanding of the constitutional requirements for adjudicative jurisdiction in the U.S. courts and have been perpetuated by early court decisions interpreting the provision. As a result, they conclude that the provision is notable mainly for its reliance on a United States-centric paradigm of the international domain name system.

The authors also investigated the scope and justification for the United States' assertion of jurisdiction over domain name disputes. They argued that while the present state of the domain name system offers some support for this assertion, this status quo is unlikely to continue due to the development of new domain name technologies and the possibility of non-roman character domain names. They also argued that the aggressive approach to prescriptive jurisdiction evidenced in the ACPA's in rem provisions could lead to overlapping or conflicting regulation, potentially segmenting the domain name system.

Implications: The authors suggest that the United States' assertion of jurisdiction over domain name disputes will need to adapt to the changing landscape of the domain name system. They argue that the strong United-States-centric paradigm that undergirds the current approach will need to be reconsidered, requiring substantial new thought and recognition of the U.S.'s long-term interests in the integrity of the system of domain name administration and governance.

In conclusion, the authors highlight the importance of understanding the challenges posed by cyberspace for realspace sovereigns and the need for adaptive and inclusive approaches to domain name regulation.

Link to Article: https://arxiv.org/abs/0109086v1 Authors: arXiv ID: 0109086v1