One of the weirdest cases with which I have ever been involved is Express Media v. Express.com. In a nutshell, the purchaser of the domain name conducted negotiations for quite a long time with the admin contact, and eventually purchased the domain name. Shortly thereafter, the prior registrant claimed it was stolen. It was hard to believe that the prior registrant was telling the truth, given all of the correspondence which had gone on. But, as I mentioned the last time this case came up, it appears that the hacker was very carefully curating that email account in order to avoid the account owner seeing any of the extensive communication.
So, on your point of "is correspondence with the owner's email address sufficient"?
http://www.internetlibrary.com/pdf/Express-Media-Express-Corp-ND-Ca.pdf
There are two problems with this argument. First, Ricks has presented no evidence that Express Media and DVD.com either knew they were transferring the domain name to the third party, or that they were transferring the domain name to Ricks. The allegation in the complaint stated that Network Solutions, not Express Media, was fraudulently induced into transferring ownership. Even if ownership was actually transferred to Ricks, Express Corporation did not authorize or know about the transfer. Second, the claim that title was transferred from Network Solutions to Ricks fails as well. Ricks presents evidence that he paid money to an unknown entity, and not to Network Solutions, to “take title” to the domain name. Defendants’ arguments rest on changes to the WHOIS records and the registration contact information for the domain name. Such records, however, are not the equivalent of statutorily-created title systems. They are privately-maintained systems for providing contact information and keeping records for domain names.
The doctrine of "bona fide purchaser for value" applies to purchase of goods from a dealer of goods of that kind, not a private party transaction.
Continuing with the discussion in
Express Media:
Finally, defendants argue that they cannot be held liable because they purchased the domain name in good faith. This is an affirmative defense, so defendants bear the burden of proof. “As a general rule, an innocent purchaser for value and without actual or constructive notice that his or her vendor has secured the goods by a fraudulent purchase is not liable for conversion.” Witkin, Summary of California Law, § 716, 10th ed. (2005). The law distinguishes between the person who purchased from someone who obtained title to the property by fraud and the person who purchased from a thief who had no title to sell. Defendants produce evidence, which plaintiffs do not dispute, that defendants purchased the domain name from an unknown third party who identified itself as “Susan Tregub.” The question now becomes whether that unknown third party obtained title by fraud or merely stole the domain name.
...
Here, defendants have presented no competent evidence that plaintiffs voluntarily transferred the domain name. Susan Tregub, who was listed as the administrative contact and who Ricks believed that he dealt with in buying the domain name, declared that she never voluntarily transferred the domain name (Tregub Decl. ¶¶ 15–16). Moreover, during her deposition Tregub testified that she never transferred the domain name and that no one ever contacted her asking
her to do so (Tarabichi Decl. Exh. A).Indeed, the real Susan Tregub could not have been
contacted because her email address had been removed from the registration.
...
Defendants try to make much of the fact that plaintiffs do not know precisely how the third party changed the registration information. The third party may have stolen plaintiffs’ password, it may have bypassed Network Solutions’ security measures, or it may have impersonated Susan Tregub in some other way. The method does not matter. Defendants cannot get around the fact that Susan Tregub never owned the domain name. As an attorney for plaintiffs, Tregub was only the contact person for the domain name registration, she was never the owner. Plaintiffs have shown that they did not voluntarily change the contact information and defendant does not present any evidence to the contrary. Indeed, plaintiffs were not even aware that the contact information had been changed until they later checked the WHOIS records. Thus, the third party who sold the domain name to defendants could not pass good title, and the good-faith purchaser defense does not apply.
To simply that a little bit, let me ask you this about the "bona fide purchaser" defense...
If you want to apply the BFP defense, who was the seller?
ComQuest Designs' claim is that they did not sell the domain name.
Booth's claim is that he purchased it from ComQuest Design.
Okay, fine, those sorts of claims are usually dealt with pretty simply -
produce the sale agreement, and show payment to ComQuest Design.
Escrow.com does not provide a sale agreement. They provide an escrow agreement solely.
As long as people continue to conduct business this way, this is going to keep happening. The sequence is usually "but I paid through escrow.com". Unless you have a sale agreement specifying EXACTLY who is getting paid and to what account, you don't know who is getting paid. The way domainers keep doing this is ridiculous, because then you get stuck in the loop of Escrow.com not divulging the payment information to which payment was sent, and which would have likely provided an indication that, say, wiring money to some bank in Turkey was probably not how a Florida corporation normally gets paid.
But people will keep sleepwalking into these things, and re-hashing the same cycle again and again.
As far as "but Network Solutions investigated this" goes, the only thing that means is that Network Solutions looked into whether the account was accessed through the correct credentials, that the admin contact email address duly approved the transfer, etc.. The ONLY thing Network Solutions cares about, and the only thing they have to care about, was whether the process was technically compliant. If the argument that "I bought the domain name from ComQuest Designs" rests on "Network Solutions confirmed the transfer", that's what the whole discussion in
Express Media Group is about:
Defendants contend that the agreement with Network Solutions defines the metes and bounds of plaintiffs’ property rights in the domain name much like the deed to a piece of real property. First, defendants have not authenticated the exhibits that they to be copies of agreements that plaintiffs entered into with Network Solutions.
...
Even if the agreement had been properly authenticated, it still does not have the same effect as a deed. Changes to the registration information do not constitute a transfer of ownership. Defendants attempt to distinguish the facts of this action from those in Kremen v. Cohen, 337 F.3d 1024 (9th Cir. 2003) <note: the sex.com case>. In that decision, the Ninth Circuit held that domain names were intangible property that could be converted. There, a domain name owner attempted to hold a domain name registrar liable for conversion where a third party had changed the registration information. Defendants seem to
be arguing that here, Network Solutions took title to the domain name whereas in Kremen, the registrar merely exercised possession and control of the domain name. Nothing in the facts or the agreement would indicate that Network Solutions ever held title. Plaintiffs registered their domain name with Network Solutions, but they did not pass title to it.
Again, this is pretty easy to clear up.
If you claim "I bought this widget from Bob" and Bob disagrees with you, then simply produce the sale agreement with Bob and the proof that you paid Bob.
If you can't do those two things, then you are not going to be able to demonstrate you bought that widget from Bob.
and yes, escrow platform won't talk to me. this is a huge legal mess. i am hoping james will be a honest young man and do the right thing. those millennials though...different kind of work ethic than old folk like me.
