The New, New Property

Article excerpt

Introduction

Surveying the history of property from his vantage point a century ago, Pierre-Joseph Proudhon observed famously, "Property is theft!"1 The premise of this Article is to wonder whether a future Proudhon will review the distribution of resources in the new, new world of cyberspace and declare their origins to be similarly illegitimate. The disappointing answer offered here is that, indeed, a future Proudhon appraising our current system of cyberspace resource entitlements would make a similar declaration. The hopeful suggestion offered here is that it is not too late to avoid that fate. IMAGE FORMULA7

Control over domain names vests in a person dominion over important cultural and economic resources. For example, the largest reported gathering of humanity, the Kumbh Mela festival, occurs every dozen years at the confluence of the Yamuna, Ganges, and the mystical Saraswati rivers in India. KumbhMela.com, however, is registered to a company in Berkeley, California. The entity controlling a domain name that represents the natural place on the Internet for people to gather information or build community about any particular subject immediately gains a powerful voice in that community, perhaps even the power to help define that subject. The power that a domain name entails is not lost, for example, on the Chinese government, whose state-owned news agency, Xinhua, is a joint venturer in China.com.2 A growing secondary market in domain names demonstrates their economic value, with prices ranging in the millions for especially attractive names such as Business.com or Loans.com.3 Even the service industry that has grown up around these names is big business, with the largest provider of domain names acquired in 2000 for $21 billion.4 Given their cultural and economic value, disputes over domain name entitlements are inevitable, and recent cases have asked us to decide, for example, who are the rightful owners of SouthAfrica.com,5 Barcelona.com,6 JewsForJesus.org,7 Sex.com,8 and Madonna.com.9

The rules we write for deciding such disputes have clear international impact, yet little attention has been paid to constructing a just global regime IMAGE FORMULA9

in domain names. Domain names should figure into international law debates for a number of reasons. First, they determine who has global rights to geographic and cultural identifiers.10 South Africa has even denounced an American corporation's registration of SouthAfrica.com as re-inscribing "the colonial experience."11 Second, domain names present a case study in the possibility of global governance, with the Internet authority ICANN as a world executive and the World Intellectual Property Organization as its judicial arm. Third, domain names represent a valuable resource of the Information Age. Their international distribution thus has important wealth consequences. Indeed, as commerce becomes increasingly electronic, corporations that own prominent, mnemonic domain names may be best positioned to become global leaders in their industries. As useful domain names are grabbed up by Western entrepreneurs, the domain name regime may help further entrench the existing worldwide maldistribution of wealth. Selling their goods and services through cyberspace, the global corporations of tomorrow, like the global corporations of today, will be largely Western.

The grand narrative of this new century may well be the continual expansion of advantage of the few in one domain into another domain, as ever new frontiers are conquered. The meek and poor may never inherit the earth. This Article seeks to disrupt this narrative by calling attention to the hidden bias of formally equal rules in domains as seemingly arcane as those of cyberspace. The Article thus offers a sustained critique of first-come, firstserved property regimes, especially from the perspective of global wealth distribution. …