94 Pages Posted: 10 May 2006
Eminent domain and thought control are occurring in cyberspace. Through the Anticybersquatting Consumer Protection Act (ACPA), the government transfers domain names from domain-name owners to private parties based on the owners' bad-faith intent. The owners receive no just compensation. The private parties who are recipients of the domain names are trademark holders whose trademarks correspond with the domain names. Often the trademark holders have no property rights in those domain names: trademark law only allows mark holders to exclude others from making commercial use of their marks; it does not allow mark holders to reserve the marks for their own use. The property transfer is thus not based on existing property rights that a trademark holder has in the domain name. Instead, the ACPA facilitates the property transfer based on the thoughts of a domain-name owner. The ACPA requires only (1) that a domain-name owner have acquired a domain name through trafficking, where traffic is defined to include any means of acquisition; and (2) that a domain-name owner have a bad-faith intent, where bad faith is determined by unfettered judicial discretion and where the actionable intent may exist at any time (not merely the time of acquisition). In short, if a domain-name owner has somehow acquired a domain name, or in other words, is in possession of it, and if that owner then thinks bad-faith thoughts, the government may appropriate the domain name for a third party's use. This basis for transferring property -- thought and the expression thereof -- violates basic tenants of First Amendment law. The transfer is without permissible justification. The government controls thought through eminent domain.
Keywords: Cybersquatting, takings, eminent domain, trademark, domain name, cyberspace, Internet, constitution, first amendment, fifth amendment, ACPA, intellectual property
Suggested Citation: Suggested Citation
Snow, Ned, The Constitutional Failing of the Anticybersquatting Act. Willamette Law Review, Vol. 41, pp. 1-93, 2005. Available at SSRN: https://ssrn.com/abstract=901061