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iMEGA Appeal Raises Pertinent Issues

By: R. Kingsley, Wednesday October 29th 2008
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In response to Kentucky Judge Wingat's order upholding the domain name seizure iMEGA had filed an appeal in the Kentucky Court of Appeals. The details of the 55-page appeal are now available and the appeal raises some very pertinent issues that question the correctness of Judge Wingate's order.

At the core of the debate is the definition of gambling devices. As per iMEGA's appeal Kentucky law unambiguously defines a gambling device as a mechanical device that is designed and manufactured. Therefore a gambling device has to be a physical item and cannot include an intangible entity as a domain name. This in itself was an error committed by the judge, which was compounded by the fact that the domain names had no presence in Kentucky. iMEGA argues that Judge Wingate has in effect rewritten the statute by his order, which lies beyond his authority.

The appeal filed by iMEGA also raises pertinent constitutional issues. It says that the domain names are used to advertise the web sites. Seizing the domain names amounts to prior restraint of commercial speech, which is a violation of the First Amendment. The appeal also points out that the action by the state of Kentucky protects its gambling industry by preventing other avenues to its citizens. Thus it interferes with interstate commerce and is in violation of the Commerce Clause.

The appeal also states that there were procedural violations in the manner in which the domain seizure order was obtained and that Judge Wingate failed to take cognizance of these errors. The hearing through which the seizure order was an "ex parte" one. The domain name holders were not given any notice of the state's intent nor were they allowed to say anything in their defense. This was a violation of the domain name holders First Amendment and due process rights.

Judge Wingate will be delivering his final order on December 3. iMEGA could have waited till after then for filing its appeal. It has done so now in order to prevent the actual seizure of domain names by acting earlier. The Kentucky Court of Appeals has given the respondents 10 days to file their written responses to the appeal. After the expiry of the 10-day period the matter will be go to a three judge appellate panel. If the iMEGA loses the appeal then they would probably pray for a stay on the December 3 forfeiture hearing and knock on the doors of the Kentucky Supreme Court.

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