License and registration: how both property and contract legal frameworks fall short on interpreting domain name registration under the US Anticybersquatting Act

ABSTRACT What are a re-registrant's rights to an Internet domain name under the US Anti-Cybersquatting Consumer Protection Act? Circuit courts of appeals have split on the question of whether to view Internet domain name re-registrations as intangible property (Ninth Circuit) or under a contract framework (Third and Eleventh Circuits). But it turns out that both of these views fall short. The property approach could encourage cybersquatting, contravening the ACPA’s statutory purpose, and the contract approach can be over-inclusive, potentially subjecting to liability a domain name registrant who is merely changing her address, her payment information, or even correcting a misspelling. Where the two approaches lead to divergent outcomes, a hybrid approach is not feasible. I suggest that recognizing the de facto licensing system already used in domain name registration (and re-registration) (1) resolves the circuit split, (2) more accurately describes the process of acquiring and maintaining one's rights in a domain name registration, and (3) enables consistent application of the ACPA.