肯塔基事件的後續最新發展,中英文版.

[J.F. Chang]

肯塔基事件的後續最新發展,中英文版

幫大家簡單整理了一下,以下是中譯內容摘要.

肯塔基巡迴法庭已經駁回了擁有141個賭博網域業者代表所提出，關於the Commonwealth of Kentucky(the Commonwealth就是肯塔基州政府的意思)有權沒收這些網域的的異議之訴。
上個月Kentucky基於〝這些賭博網域名被使用於連結至違法的賭博行為〞的理由，沒收了這些網域名。這些網域名包括了十分流行的名稱例如：PokerStars.com,FullTiltPoker.com,BodogLife.com,GoldenPalace.com,Bet21.com,DoylesRoom.com 及Rick Schwartz’ IndianCasino.com
在正式文件中，巡迴法庭的Thomas D. Wingate法官表述並駁回了這些網域所有人的法律顧問試圖撤銷這個沒收行為的異議之訴。同時依據Fox 17的規定，在做出最後決定之前，法官會在11月17日會舉行聽證會。
下面是法律面的討論

法院對於有關網域的民事沒收訴訟是否有審判權：
州政府已經提出充足的證據證明，在KRS Chapter 528已經明確禁止在州境內的所有賭博行為，而涉訟的141個賭博網域已經被使用於連結到州境內的線上或網路賭博行為，而KRS 528.100並授權州政府得沒收賭博器具。進而，法院找到充足的法律基礎來審判州政府及141個網域所有人的民事沒收訴訟。

法院對於有關網域名是否有審判權：
所謂財產是泛指人與物之間有形及無形的關係。換言之〝財產〞一詞就是權利概念的統稱。而這些權利包括物的佔有(排除其他佔有)、使用、收益、處分、生前死後的移轉及受法律上的保護。
進一步言，法院認為這141個網域名是屬於〝財產〞，自然對於其所產生的訴訟有審判權。

涉訟的141個網域名是否在肯塔基州出現(地域管轄)：
地方法院同意，若只是單純的網站維護或是網路廣告是不足以有審判權的，所以法院認為如果這些網域只是提供資訊，沒收的執行命令就應該被部分或全面的撤回。但是，根據州政府所提出的證據顯示，地方法院已經認為州政府已經明確的分辨出這些賭場網站及賭場域名的的運作是持續性同時有組織性的。據證據顯示，這141個網域的虛擬域名轉換站設在肯塔基州，而這些轉換行為並非只是提供廣告或是資訊。這141個網域名明確的提供或維護了賭局/下注的進行，所以，法院有對其有管轄權。

涉訟的141個網域名在定義上屬於賭博設施
法院認為141個網站已經明確違反了KRS Chapter 528的規定，而在定義上，他們屬於賭博設施的一種，所以沒收於法有據。

Poker在定義上屬於賭博
因為有涉倖性

州政府對於提出此一訴訟是有當事人適格的
州政府認為此提供網域名的行為已經違反了KRS Chapter 528的規定，所以有當事人適格。

以下是英文原來內容.

Kentucky Circuit Court Dismisses Objections to Seizure of Gambling Domains
by Chad Kettner in Categories: Legal Issues - 9 Comments
The Kentucky Circuit Court has dismissed all objections raised by the representatives of the 141 gambling domains that are subject to seizure by the Commonwealth of Kentucky.
Last month, the Commonwealth of Kentucky seized a number of gambling domain names because the “domains were being used in connection with illegal gambling activity.” The names included widely popular online destinations such as PokerStars.com, FullTiltPoker.com, BodogLife.com, GoldenPalace.com, Bet21.com, DoylesRoom.com and also Rick Schwartz’ IndianCasino.com.
In the official decision (.pdf), Circuit Court Judge Thomas D. Wingate addressed and dismissed the objections raised by the domains’ legal counsel who were attempting to have the seizure dropped. According to Fox 17, the judge will hear arguments on November 17th before making his final decision.
On whether or not the court has jurisdiction over civil forfeiture action involving domain names:
“The Commonwealth has presented overwhelming evidence that KRS Chapter 528 prohibits gambling in the Commonwealth; that the Defendants 141 Domain Names have been and are being used in connection with on-line or internet gambling activities available and accessible within the Commonwealth; and that KRS 528.100 authorizes forfeiture actions of gambling devices. Based on the foregoing, this Court finds sufficient bases to exercise its authority and hear and adjudicate the civil forfeiture claim presented by the Commonwealth against the Defendants 141 Domain names.”
On whether or not the Court has in rem jurisdiction over the Defendants 141 Domain Names:
“Property is about the relationship of people with respect to things, both tangible and intangible. The analogy commonly used to describe property is the bundle of rights concept. Those rights include the right to possession, management and control (the right to exclude), the right to income and capital, the right to transfer inter vivos and on death, and the right to the protection under the law.
Considering the foregoing, this Court finds the Defendants 141 Domain Names are property and therefore subject to this Court’s in rem jurisdiction or to possible civil forfeiture.”
On whether the Defendants 141 Domain Names have a presence in Kentucky:
“The Court agrees that the maintenance of a website or Internet advertisement alone, without more, is not enough to constitute presence for purposes of state court jurisdiction alaysis…Thus, the Court recognizes that as to any of the Defendants 141 Domain Names that identifies websites which are providing information only, the Seizure Order must be appropriately rescinded and will be rescinded in due course…
…For now, however, and considering the foregoing discussion and based o nthe other evidence offered by the Commonwealth during the seizure hearing on September 18, 2008, the Court finds that the Commonwealth has established a prima facie case that the presence of the operators of the casino websites and the Internet domain names which identify these gambling operators with is continuous and systematic, constituting reasonable bases for the exercise of this Court’s jurisdiction. As the evidence in the record stands, teh Defendants 141 Domain Names transport the virtual premises of an Internet gambling casino inside the houses of Kentucky residents, and are not providing information or advertising only. The Defendants 141 Domain Names perform a critical role in creating and maintaining connection by way of the various interfaces to transact a game or play…Therefore the Court has reasonable bases to assert its jurisdiction over them.”
On whether domain names, by reason of their illegal or unlawful use, are gambling devices:
“The Court is aware that the Domain Name System was never intended to avoid compliance with or violate International or Municipal laws, the fact remains that Domain Name System is not (or at least not yet) full-proof from vice and abuse. The Defendants Domain Names here were used and are still being used in connection with Internet gambling transactions in violation of the spirit of KRS Chapter 528. Accordingly, the Defendants 141 Domain Names fall within the meaning of a gambling device and are subject to seizure and possible forfeiture as a gambling device.”
On whether poker is “gambling” as defined by KRS 528.010(3):
“KRS 528.010(3) does not require that chance be the only factor in the outcome of a gamgbling enterprise; just as ‘no owner of a racehorse or a rooster would ever guarantee a winner’ of a race or a fight, even a master poker player cannot guarantee victory. Chance, though not the only element of a game of poker, is the element which defines its essence. In the end, no matter how skillful or cunning the player, who wins and who loses is determined by the hands the players hold. “
On whether the Commonwealth, through the Secretary of Justice and Safety Cabinet, has standing to bring this civil forfeiture action:
“Considering the foregoing discussion, the Court is satisfied that the law enforcement interest of the Commonwealth, to curb Internet casino gambling, is a judicially cognizable interest sufficient to bring this suit. The Commonwealth has shown that there was a violation of KRS Chapter 528 that is ongoing. Thus, the Commonwealth’s interest is neither remote nor speculative.”
Judge Wingate’s final decision gives the affected domain owners 30 days to institute geographic blocks on their websites in order to have their domain names removed from the forfeiture portion of the case, with a final hearing scheduled for November 17, 2008.
Jeremiah Johnson, the President of the Internet Commerce Association who earlier condemned the seizure, has responded to the court’s decision with displeasure:
“The Internet Commerce Association is extremely disappointed in the decision issued by the Court this afternoon. This is a dangerous decision not just for domain name investors and developers but for all who value commerce and free speech on the Internet. The Court has incorrectly held that domain names are a form of property subject to in rem jurisdiction anywhere on the face of the Earth where their associated websites may be viewed on a computer screen…The remedy proposed by the court – geographic blocking so that none of the subject websites can be viewed from within Kentucky – is infeasible for individual domain names which could be subject to different laws and regulation in thousands of jurisdictions worldwide.”
This ruling is extremely significant to the domain industry since it is setting a precedent in domain law. Will this open the way for any and every jurisdiction to seize domain names they deem violating their laws or rules? The precedent this is setting implies that any jurisdiction could have this right and that website/domain owner must conform to local laws, not just Kentucky but world-wide or in every region that a website/domain can be accessed. Not doing so could lead the owner to have their domains seized as well. This is a very important decision and one that needs to be fought for the sake of all internet businesses. What are your thoughts?

[哈啦]

十分感謝提供這篇重要的資訊。
這中譯是你自己翻的嗎？
這件案子實在很離譜，「據證據顯示，這141個網域的虛擬域名轉換站設在肯塔基州」，不知什麼叫轉換站?

[J.F. Chang]

是請有法律背景的朋友幫忙的,可能沒有翻很好,請大家多包涵.

[J.F. Chang]

作者: 哈啦

十分感謝提供這篇重要的資訊。
這中譯是你自己翻的嗎？
這件案子實在很離譜，「據證據顯示，這141個網域的虛擬域名轉換站設在肯塔基州」，不知什麼叫轉換站?

應該是指查到主機是放在肯塔基的意思,據朋友說,依美國的法律程序,目前這個案子還沒有到最後定案,還可以再審(兩方繼續辯論)

[steven]

作者: J.F. Chang

應該是指查到主機是放在肯塔基的意思

不是這個意思，按原文的說法，是指這幾個賭博網站在Kentuky居民的家中建立了虛擬的營業場所，因為在這些用戶家裡確實有賭場營業事實。

[jack111]

他们认为赌博域名算赌博器具= =

[哈啦]

肯塔基的上訴法院駁回一審的裁定，依然認為這些域名屬於「賭博設施」，但肯塔基政府無權管轄州境外的賭博設施，因此推翻了最先要求移轉這些域名至肯塔基政府的判決。

也就是說，推翻了最早的法院命令！

總算美國還有些腦袋清醒而且懂得網路的法官。

http://www.cardplayer.com/poker-news...h-domain-names

[chami]

肯塔基上訴法院駁回州政府欲沒收域名的原因如下:
1、上訴法院認為域名不構成賭博設施，也就是說肯塔基的州法律裡所規範的條文中，域名 不是構成賭博設施的基本要件。
2、本身案件並沒有進行刑事程序，因此也沒有正當的程序可走民事沒收動作。
因此，上訴法院純粹以法的角度來看待這件事情時，其實是回歸到法條本身對於域名是否為賭博的設施，存在著不同的見解。
在上訴法院中，兩位法官持著第一點以及第二點的觀念，認為州政府對於此案不適用賭博條例，以及程序不符規定...等，因此駁回州法院的沒收動作。

但是上訴法院中，一位法官是與州法院有相同觀念，認為州法律的賭博條文中，域名是符合該購成要件，因此在二比一的比數上，上訴法院才駁回州法院的沒收動作。

所以其實此案並未提及肯塔基有沒有權利去沒收域名，而是上訴法院純粹以法律的構成要件審查域名是否為賭博設施。

若今天州法律的法條有延伸規範域名是符合賭博設施的構成要件，則肯塔基政府很有可能就能沒收域名了。

以下是肯塔基事件的原文:

原文:

Kentucky Appeals Court Shuts Down Attempted Domain Seizure
by Chad Kettner in Categories: Legal Issues - 4 Comments

The Kentucky Appeals Court has ruled in a 2-to-1 majority decision against the Commonwealth of Kentucky in its attempt to seize 141 valuable gambling domains, overturning the previous decision by Judge Thomas Wingate of the Kentucky Circuit Court and finally putting an end to Governor Steve Beshear’s efforts to shut down any online gambling websites which could be accessed within the state.


Judge Michelle M. Keller, in her majority decision, found that domain names were never classified as illegal gambling devices by Kentucky law, as had been claimed, and therefore the Commonwealth could not rightfully proceed with its seizure:

“(I)t stretches credulity to conclude that a series of numbers, or Internet address, can be said to constitute a ‘machine or any mechanical or other device…designed and manufactured primarily for use in connection with gambling,” Judge Keller wrote. “We are thus convinced that the trial court clearly erred in concluding that the domain names can be construed to be gambling devices.”

Judge Jeff S. Taylor, also in the majority, added that the Commonwealth of Kentucky could not seek a civil forfeiture based on a criminal statute unless there was a criminal proceeding, which there was not. Since this failed to happen, the Commonwealth was overstepping its boundaries by trying to seize property which was outside its jurisdiction.

Judge Micheal Caperton, in his dissenting opinion, stated that Internet domain names played a role in the larger mechanism for gambling - which included computers and Internet service - and thus could be considered a “gambling device” by Kentucky law.

The 2-to-1 decision immediately prohibits the seizure of the 141 domain names by the Commonwealth of Kentucky.

“We are very happy with the court’s ruling today,” said Joe Brennan Jr., chairman of the Interactive Media Entertainment & Gaming Association (iMEGA). “The judges clearly agreed with our interpretation of the law and, thankfully, this reverses what would have been a terrible precedent for our country and the Internet.”

In September 2008, Kentucky seized the long list of domain names - including PokerStars.com, FullTiltPoker.com, BodogLife.com, GoldenPalace.com, Bet21.com, DoylesRoom.com and Rick Schwartz’ IndianCasino.com - stating that the domains were “being used in connection with illegal gambling activity” within the state.

The seizure created an uproar in the domain community, with the Internet Commerce Association (ICA) immediately addressing the situation, GoDaddy refusing to hand over the domains registered through them, and the website owners appealing the decision.

But against all logic, Judge Thomas Wingate of the Kentucky Circuit Court dismissed all objections from the representatives of the 141 domain names and stated that Kentucky did have the right to seize the domains since they were illegal devices used to facilitate gambling within the state borders.

The decision, which also gave domain owners a second chance to maintain control of their domains if they geo-blocked Kentuckians from accessing the websites, didn’t sit well with either side as Governor Steve Beshear didn’t believe the “get out of jail free” card was warranted and the iMEGA filed a motion to stay, claiming Kentucky didn’t have the right to seize domains regardless of any geo-blocking efforts.

In the end, the courts finally sided with the defendants - a monumental decision which will provide added value and security to gambling domain names and websites for now and the foreseeable future.

“We are humbled by this decision and by the overwhelming support received from Internet businesses and free speech organizations everywhere,” said Jeff Ifrah, an attorney representing the Interactive Gaming Council. “The Court of Appeals has now corrected a fundamental misunderstanding by the trial judge in this proceeding of the nature of the Internet and the legality of online poker in Kentucky.”