14 Va. J.L. & Tech. 1 (2009)

handle is hein.journals/vjolt14 and id is 1 raw text is: VIRGINIAJOURNAL OF LAW & TECHNOLOGY
SPRING 2009                  UNIVERSITY OF VIRGINIA                   VOL. 14, No. 1
Of Process and Product:
Kremen v. Cohen and the Consequences of
Recognizing Property Rights in Domain Names
NOAH M. SCHOTTENSTEINt
ABSTRACT
In Kremen v. Cohen the Ninth Circuit recognized a property right in
domain names, defining property as any form of intangible benefit
that is distinct and excludable. This reasoning is flawed for three
reasons: (1) it is grounded in a faulty understanding of property
law; (2) it is over-inclusive, capturing a variety of things and
benefits that have been explicitly removed from the realm of
property; (3) and it is under-inclusive, as it fails to consider a
number of interests necessary for evaluating if something should be
deemed property. This doctrine, broadly applied, would result in a
massive expansion of legal interests classified as property.
The Kremen court also failed to contemplate the collateral
impact of such an expansive view of property. In addition to
providing a remedy for interference with the right to exclude,
property also functions as an interface between the owner and the
society at large, assigning a number of responsibilities and burdens
to the owner. For example, the location of property assists in
determining important questions of jurisdiction, venue and choice
of law, and classifying an intangible benefit as property means
transforming it into a taxable asset. When recognizing domain
names, or any other form of intangible resource, as property, one
must carefully consider how the change in rights will affect
dependent social and legal rules-something Kremen failed to do.
For these reasons, Kremen is an inappropriate source of authority to
rely upon when considering novel questions of intangible property
rights.
O 2006 Virginia Journal of Law & Technology Association, at http://www.vjolt.net.
t J.D. Expected May 2009, University of Virginia School of Law; B.A. 2004, The Ohio State
University. The author would like to thank his wife, Denise Schottenstein, and his daughter, Clara
Schottenstein, for their loving support; Julia Mahoney, for taking the time and effort to serve as an advisor
for this project; and James McDonald and Nicholas Degani, for their gracious assistance with editing.

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