iMEGA on Kentucky Domain CaseBy: Joan Peppin, Saturday January 22nd 2011
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The Kentucky domain name seizure case has returned to the Franklin County Circuit Court. After iMEGA filed the name of one domain name owner to establish its legitimacy, the Kentucky Supreme court directed that the issue of its legal standing be first decided in the County Circuit Court. The process has begun anew with lawyers representing iMEGA and the domain name owners on one side and the Commonwealth of Kentucky on the other side filing their briefs this week. The core of the issue is the attempt by the Governor of Kentucky to seize the domain names of over 140 online gambling operators on the allegation that they offer illegal services within the State. Lawyers representing iMEGA will be asserting the association's right to represent the domain name owners and to contest the attempts by the state of Kentucky to seize their domain names. Kentucky's lawyers will be insisting that iMEGA and other trade associations do not have the right to represent the domain name owners. The other association that is representing the domain name owners is Vancouver based Interactive Gaming Council (IGC).
After filing their brief the lawyers for iMEGA went public on why they claimed that the Commonwealth of Kentucky's actions were wrong. Jon Fleischaker, counsel for iMEGA, said, "The idea that the Commonwealth may proceed civilly against Internet domain names on the theory that they meet the criminal statutory definition of 'gambling devices' is simply not supported by the law." He added that because of this, the action undertaken by the state is wrong and without any precedence or legal authority.
Joe Brennan Junior, chairman of iMEGA, was harsher in his comments against the Commonwealth of Kentucky and their lawyers. He said, "The Commonwealth's attorneys compensate for a lack of supporting case law by devoting page after page to ad hominem attacks. In the absence of a reasoned argument, I guess calling us 'bad people' is going to be their strategy." He also reacted strongly to the Kentucky lawyers' claim that the domain name owners are trying to avoid the law. He pointed out that it was the Commonwealth that used a secret, ex parte hearing to order the domain names seized, without providing any notice to the rights holders and without giving them an opportunity be represented by counsel. The final point was perhaps the most significant. The state of Kentucky is not paying a cent to its lawyers upfront. They have initiated an action fully aware that it may not stand the test of law. If the lawyers can convert it into monetary benefits for the state then they will be paid a share.
Ironically, the matter will now be heard by Judge Thomas Wingate, who issued the original seizure orders on the behalf of Kentucky.
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