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Legalese

While the Sex.com story has involved extraordinary fights and struggles in the real world (California, Mexico, Monaco, Israel) and online (thousands of phonecalls, emails, websites, chatroom spats), at the core has always been the legal battle.

That battle has seen the Internet redefined in law. Or, more accurately, it has seen the Internet's building blocks - domain names - pulled into existing law.

It was no easy task. First, the company that was the Internet in the early years, Network Solutions, had developed its own sense of how domain names should be dealt with legally. And it had won dozens of lawsuits while succesfully arguing that philosophy. Unsurprisingly, however, those definitions proved most advantageous to Network Solutions.

Incredibly, the law ended up in a position where a domain name that you bought money for, ran your entire business on and which represented your entire Internet presence, was still viewed as not your property -- you were merely renting it off Network Solutions.

Gary Kremen was forced to unpick that legal web against an extremely rich and powerful organisation in the highest courts of the land, and then push his point home. It took him 10 years, but he did it in the end.

 

And then Cohen

But that was only one side to the legislation. The other side was Stephen Cohen's legal fight in which he threw every single conceivable legal attack at Kremen to prevent him being awarded the Sex.com domain.

The domain name was worth hundreds of millions of dollars to Cohen and so he hired the best lawyers possible to delay, defuse, damage and otherwise destroy Kremen's legal battle for his property.

All of this meant that when the physical fighting and name-calling was over, a high-level legal battle was fought between masterful lawyers in the highest courts of the land. They each used the legal system in an effort to stymie one another and so, inevitably, a whole range of legal language, with some concepts and etymology going back hundreds of years, appeared.

To anyone but a student of law such alien terms as "chattels" and "estoppel" to name but two would leave you scratching your head. But beneath these words come perfectly understandable concepts about how society rules itself.

Here then is a simple rundown of just some of the language used, the concepts behind it and how it was used in the epic Sex.com battle:

 


conversion:
The unlawful turning or applying the personal goods of another to the use of the taker, or of some other person than the owner; or the unlawful destroying or altering their nature.

Stealing, in other words.

Kremen alleged conversion against both Cohen and Network Solutions (NSI). Using the forged letter, Cohen induced NSI to transfer sex.com - which they were supposed to be looking after on Kremen’s behalf - to his ownership.

Common law conversion is typically reserved for tangible property such as a house or a car. In the period when legal battles were being fought over domain names (that is, the late 1990s and early 2000s) they were however regarded as intangible property and therefore not subject to conversion unless represented by something tangible, such as a stock certificate.

NSI’s early method of allocating individual domain names was simply to assign them, free of charge, to whoever requested them first by sending NSI an email and a fax. In most cases, therefore, the owner of a domain name had no documentation to prove ownership - so the domain name remained intangible property.


trespass to chattels:
Trespass to chattels is a lesser form of conversion, when intentional interference with personal property indirectly causes injury to the plaintiff.

It can be defined as “intentionally dispossessing another person of a chattel; or using or meddling with a chattel belonging to another person in such a way that the result for the owner is dispossession of the chattel, deprivation of the use of the chattel for a long period of time, impairment of the condition/ quality/ usefulness of the chattel, or harm to the person of the possessor or persons or things in which he has a legally protected interest.”

Trespass to chattels originally required physical contact with another's property (the word “chattel” shares its origin with the word “cattle”), but, in two cases in the late 90s, courts determined that electronic signals touching a server or telephone system were sufficiently tangible to support a trespass cause of action.

Charles Carreon, Kremen’s lawyer, did not allege trespass to chattels against Cohen or NSI, but he was encouraged by the fact that the doctrine had successfully been used in cases involving disputes about cyberspace.


garnishment:
A garnishment is a court procedure allowing someone to collect their judgment directly from the defendant's wages, bank account, or other source such as income tax refunds.

Gary Kremen was luckier than some people who had tried to take legal action against NSI for failing to take care of their domain names. By the time Charles Carreon came on board and threw himself into the case, the Virginia Court of Appeals had recognised the status of domain names as “garnishable personal property” for the first time.

In doing so, they overruled NSI’s standard defence against claims brought by disgruntled domain name holders: that domain names simply didn’t qualify as property.

 

estoppel:
The legal principle which prevents someone asserting something contrary to what they implied in a previous action or statement, or from contradicting a previous pertinent judicial decision.

Stephen Cohen attempted, at one point, to argue that domain names could not really be considered property - and that it was therefore nonsensical to claim that he had ‘stolen’ one: after all, how can you steal something that can’t be owned?

Unfortunately for Cohen, however, Kremen’s lawyer, Charles Carreon, had discovered documentation from several court cases that Cohen had brought while he was running sex.com.

In these cases, Cohen was seeking damages from other people whose domain names included the word “sex” – and in all of them, Cohen’s argument rested squarely on the idea that domain names were property.

Having asserted elsewhere that the domain name was property, Cohen was estopped from making the contrary claim in his battle with Gary Kremen.

 

laches:
A legal doctrine whereby those who take too long to assert a legal right lose their entitlement to compensation. When you claim that a person's legal suit against you is not valid because of this, you would call it "estoppel by laches".

 

unjust enrichment:
A legal doctrine stating that if a person receives money (or other property) through no effort of his own, at the expense of another, the recipient should return the property to the rightful owner. This applies even if the property was not obtained illegally. Most courts will order that the property be returned if the party who has suffered the loss brings a lawsuit.

NSI argued that to award Kremen all or part of the damages he was alleging against them would constitute unjust enrichment.

fishing expedition:
Legal grasping at straws; the use of pre-trial investigation (discovery) or witness questioning in an unfocused attempt to uncover damaging evidence you can use against your adversary.

When Kremen was preparing to submit his third amended complaint, Cohen’s lawyers complained that he was turning the case into a fishing trip: he’d had three opportunities to plead a legally sustainable case, they said, and he’d failed; now he and his lawyers were just dragging the case out in the hopes that one of them would eventually find a way to make a claim that would stick.

 

failure of consideration:
The refusal or inability of a contracting party to perform its side of a bargain; not delivering goods or services when promised in a contract.

NSI accused Gary Kremen of failure of consideration in their attempt to have the lawsuit against them thrown out. The implication is that Kremen failed to stick to his side of an agreement or contract with NSI - a strange assertion for NSI to make, given that they were also trying to get the lawsuit thrown out on the grounds that there never was any contract between Kremen and the company…

 

waiver:
When a person disclaims or renounces a right that they may have otherwise had. Waivers are not always in writing: sometimes a person's actions can be interpreted as a waiver.

Kremen’s complaint against Cohen was amended several times; mistakes and omissions pointed out by the defendants were remedied, and the revised complaint re-submitted.

A problem arose, however, when one of the causes of action - racketeering - alleged in the original complaint and again in the first amended complaint was omitted from the second amended complaint. When it was included in the third amended complaint, Cohen’s lawyers triumphantly pointed out that this omission meant that Kremen had waived that cause of action: “… a plaintiff waives all causes of action alleged in the original complaint which are not alleged in the amended complaint.” (London v. Coopers & Lybrand, 9th Circuit, 1981)

 

unclean hands:
A legal doctrine that prevents a plaintiff who has acted unethically in relation to a lawsuit from winning the suit, or from recovering as much money as she would have if she had behaved honourably.

For example, if a plumber is suing a customer to recover the price of work he did on her home, his failure to perform the work as specified would leave him with unclean hands.

NSI accused Gary Kremen of having ‘unclean hands’ with reference to his assertion that they had unlawfully transferred Sex.com to Cohen, implying that Kremen himself was guilty of some kind lapse which led to the transfer - unsurprisingly, they don’t specify what the nature of that lapse may have been.


standing:
The legal right to bring a lawsuit. Only a person with something at stake has standing to bring a lawsuit.

Cohen argued over and over again that Kremen had no standing to bring the case against him in the first place, on the grounds that when Kremen registered Sex.com with NSI, he did so in the name of a company, Online Classifieds Inc., rather than in his own name - and subsequently brought the lawsuit against Cohen in his own name.

Even as he sits in jail, Cohen is still insisting that Kremen doesn’t have standing against him…

 

 

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