The New, New Property

Abstract:     
Already, the world of cyberspace is beginning to replicate the inequalities of real space. The distribution of domain names, a basic building block of e-commerce, shows dramatic disparities between the high and low income parts of the world. Americans own most of the world's domain names, including the names of faraway countries, tribes, and cultural events, such as SouthAfrica.com, Yanomami.com, and KumbhMela.com. No African or South American company has the lucrative charter that would allow it to award global domain names. The principal cause of this inequality is a domain name system that follows a rule of first possession. This Article critiques this property rule as being founded less on moral reasoning than on an assertion of power. Going further still, the Article argues that the current property rights regime in domain names cannot be justified by any of the traditional philosophical or economic theories underlying our private property system.

In rethinking entitlements to domain names, the Article turns to the history of the American public lands and the international law regimes governing global commons spaces, such as the ocean bed, outer space, and Antarctica. We see in each of these cases the effort to craft a system that allocates rights to a common or global resource paying heed to social goals such as distributive justice, environmental protection, and economic development. Thus far, scholars and policy-makers have not paused to consider any such concerns for the world of cyberspace. Drawing upon the insights of diverse disciplines, this Article proposes a global domain name regime that comports with concerns for equality and distributive justice.

Keywords: property, contract, domain names, cyberspace, equality, distributive justice, endowment effect, path dependence, strategic bargaining, first possession

JEL Classifications: K0, O3

Accepted Paper Series