First off, two lawyers note on their blogs, 2ch.net is registered to Tucows Inc. and not Hiroyuki Nishimura:
Domain Name: 2CH.NET
Registrar: TUCOWS INC.
Whois Server: whois.opensrs.net
Referral URL: http://domainhelp.tucows.com
Name Server: NS1.MAIDO3.COM
Name Server: NS2.MAIDO3.COM
Status: clientDeleteProhibited
Status: clientTransferProhibited
Status: clientUpdateProhibited
Updated Date: 13-oct-2006
Creation Date: 22-jul-1999
Expiration Date: 22-jul-2007
Based on this, lawyer Toshimitsu Dan explains:
At any rate, the 2ch domain’s registrar is not Hiroyuki. forcible execution of assets in a third party’s name is very difficult. It would be a surprise if they could do it.
…
Did you wonder what kind of procedures need to be taken for forcible execution of a domain name? Since it’s a a forcible execution, the court would carry out auction procedures, decide on the winner of the auction, and when the winner pay the amount, I guess they would go through procedures to change the registrar.
In that case, how would they change the registration?
Would the court send its decision to ICANN? Or would they send it to VeriSign, which maintains .net domains, or Tucows, the registrar for 2ch? I don’t think any of them would respond…
In order to carry out forcible execution procedures on a foreign corporation, a proper treaty is necessary between the two nations, so if there are no conventions then I feel it would be difficult.
The original ZAKZAK story claims:
There is a period from now in which Nishimura may file an objection, but if he does not show up in court as he has been doing, the forcible execution could start as early as 2 weeks from now.
The upcoming provisional seizure is likely to have a big impact not just on Nishimura himself but also the 10 million-plus users of 2ch. That is because, based on the Tokyo Regional Court’s judgment that “it is possible to seize anything that has a price,” his domain names will also be provisionally seized, a move “unprecedented in Japanese history” (according to Japan’s domain management institution).
If the procedures move forward, the domain’s ownership rights are transferred, and the 2ch site loses its Internet address, user will no longer be able to view anything even if they access the original 2ch.net address.
But it looks like 2ch might be safe after all. Nevertheless, the article has scared a lot of people, including this blogger who will be keeping an eye on this story. On 2ch, the story has dominated the news message board, with more than 100 new threads started on the topic.
No, the registrar is merely the company the domain was purchased thru (just like godaddy or Network Solutions). The registrant is listed as “Monsters Inc” at the same address as the administrative contact (Hiroyuki Nishimura).
Are you sure it’s not just that Tucows are the register and he’s selected the privacy option? See my site for instance:
http://whois.net/whois_new.cgi?d=whatjapanthinks&tld=com
My provider offers that as a free service:
http://www.bluehost.com/privacy.html
Privacy isn’t really relevant though. Even if a Japanese court rules that the 2ch.net domain is forfeit, how are they going to enforce that judgment against Tucows, an American company that probably has no assets in Japan?
Tucows is actually Canadian – if you register a domain name at domaindirect.com, that’s who you’re dealing with. I have a couple of domain names through them.
Technically, looking around through my agreements with Tucows, it seems that cybernezumi is right. The domain name belongs to Nishimura, or whoever paid for it initially. The hard part, though will be enacting the transfer of the asset to the plaintiff. Even if relevant treaties did exist between Japan and Canada, as they well may, what injunction could be brought against Nishimura to prevent him from just setting 2ch up under a slightly different domain name? 2ch.com?
The most likely scenario, I would think, would be that the court would just make it really hard for Nishimura to do anything by pressuring hosts not to host 2ch. Or am I missing something rather major here?
This is incorrect. You can enforce a Japanese judgment in any country, and vice versa, but you have to bring an action in the local court in order to do it. Then it becomes a matter of whether the local court will recognize the foreign judgment. Usually they do, out of courtesy to the foreign court (“comity”), although there are exceptions for public policy (e.g. Japanese courts never enforce punitive damage awards), lack of jurisdiction, etc.
That said, the other caveat that Garrett brought up would definitely apply. Nishimura could just buy another domain. And as I noted in an earlier comment, Japanese courts are utterly incapable of enforcing injunctions, because there is no such thing as contempt of court in Japan.
According to the lawyer, the seized assets would be put up for auction and it’s the cash that is given to the plaintiff. That would be insane if this 35-year-old corporate employee was suddenly the owner of 2ch.
What kind of pressure would be put on hosts? Are they going to send threatening letters to Tucows? Forbid it to do business in Japan? I hope some other news outlets/learned sources start reporting on this after the weekend so we can get some clarity.
This is actually a pretty interesting legal issue. Domain names are such a new concept that it’s hard to figure out whether they can be seized.
There’s a cybersquatting law in the US which provides that the holder of a trademark can seize a domain name which is held by someone else but contains the trademark, but this only solves the problem in part. To quote someone who knows much more than I do:
Xuan-Thao N. Nguyen, CYBERPROPERTY AND JUDICIAL DISSONANCE: THE TROUBLE WITH DOMAIN NAME CLASSIFICATION, 10 Geo. Mason L. Rev. 183 (2001).
While 2ch is certainly a valuable trademark, it loses its trademark qualities if the 2ch site no longer exists. I reckon that inasmuch as the domain name would have proprietary value, it would have to be seized and sold off along with the server and the data. If the rights to the domain name were sold to the highest bidder regardless of purpose, the trademark would be divorced from its value (i.e. cease to be a trademark). The US courts seem to support this view, although I have no clue how Japanese courts would rule on the issue.
“The most likely scenario, I would think, would be that the court would just make it really hard for Nishimura to do anything by pressuring hosts not to host 2ch. Or am I missing something rather major here?”
You are missing something major. The court is ordering a seizure of assets, but there is nothing stopping him from restarting 2ch, or a similar site, under a different name.
Right, so I guess my deeper question was: Why would the seizure of the domain name as an asset, even if it could be carried out, spell the end of 2ch? Nishimura might have to do a little publicizing to make the new domain name known, but 2ch could, it seems relatively easily go on.
Anyone know what the rules on asset seizure are? Would the plaintiff have any claim on future assets, such as a new 2ch domain name?
A very good point which makes a seizure of 2ch.net as an asset questionable as, once it was seized, it would lose its value and, hence, the ability to satisfy any pecuniary obligation.
Clearly domain names have some value (you KNOW some porn operator would LOVE to buy 2ch.net), it’s just a question of whether it’s appropriate to target them for enforcement.
Some American lawyers have tried to argue that you can garnish domain name rights in the same way that you can garnish someone’s wages, the notion being that if a domain name has no proprietary value as a trademark, it at least has value as something which the debtor is entitled to receive.
I don’t think any courts have bought this argument, though. They generally view domains as being more like telephone numbers, which are so closely associated with the individual or the business that they have no value independently of that.
After some more reading, it looks like ownership of the domain would have to be brought up in a US court, since the registration was through an American top-level registrar (VeriSign) and they’re the ones who would have to change things. So the US law is actually very applicable in this case. Looks like the domain will not be moving unless Hiroyuki stops paying for it.
Does anyone remember what ended up happening with the scumbagsinjapan.com saga about 4-5 years ago?
I never heard about that, but from what I’m reading now that is insane.
Yes, Tucows is the registrar of 2ch.net. Legally, this means very little. It does not mean that they own the domain by any stretch of the imagination. The registrar does one thing and one thing only: it holds a ‘zone file’ which tells all large DNS servers what IP address to associate with the text names that we type it. It’s essentially a translation file so that we don’t have to type 206.223.157.122 every time we want to go to 2ch.net
The domain 2ch.net was registered in October 1999. As Ken Y-N suggested above, it was registered at TUCOWS with the ‘domain privacy’ option on. The domain privacy was provided by DomainTools.com – but there are still ways around that service to see the records. This is the true registrant information:
Monsters Inc
#602, 5-12-5
Shinjyuku
Shinjyuku-ku
Tokyo, TK 160-0022
JP
Administrative Contact:
Nishimura, Hiroyuki Whois
#602, 5-12-5
Shinjyuku
Shinjyuku-ku
Tokyo, TK 160-0022
JP
020-4622-8073 Fax: 020-4622-8073
Technical Contact:
Watkins, Jim
9629 Evergreen Way suite 202C
Everett, WA 98204
US
425-353-7103 Fax: 425-353-5962
That IP address above (206.223.157.122) is the IP address for 2ch.net – it resolves to Carson City, Nevada.
The IP block that 2ch.net sits on is owned by NT Technology, Inc.
N.T. Technology, Inc. 2533 N.Carson St. Carson City NV US 89706
The server is running: Apache/2.0.54 (Unix) PHP/4.4.0 mod_ssl/2.0.54 OpenSSL/0.9.7d – it was last rebooted on December 2, 2006.
The DNS server is: banana2848.maido3.com, which is owned by http://www.maido3.com – a Japanese rental server service company which is itself hosted in Kentucky.
Thanks for the info. So it looks like to get to the domain they would have to ask a US court to issue an order, which seems unlikely. Meanwhile, Hiroyuki has given an interview explaining that he won’t shut down 2ch, but ZAKZAK is confident in its reporting that he still might have to give up the domain as a “provisional seizure” covers all assets, unlike a regular seizure which only covers the amount owed. I don’t think I’ll be making another major post on this issue until it becomes clear exactly what’s going to happen.