National Arbitration Forum: Registrars can’t refuse transfer of domain names without a court order

A decision at the National Arbitration Forum found that the Registrar PDR Ltd. d/b/a PublicDomainRegistry.com withheld the transfer of the domain names <maxalbums.com>, <emp3world.com> and <full- albums.net> in violation of the Policy on Transfer of Registrations by Registrars.

This all started last year when the City of London Police sent letters to registrars of torrent and MP3 ewbsites, stating that the domains in question (including ExtraTorrent.com, SumoTorrent.com, emp3world.com, full-albums.net and maxalbums.com) were breaking UK law. Therefore the domains should be suspended within 48 hours. One registrar, PDR Ltd, immediately complied with this request, even though the police had not obtained a court order. EasyDNS, refused to comply. EasyDNS took the matter to Verisign (who issued a decision of “No Decision”) and eventually all the way to the National Arbitration Forum. On the 6th of January ICANN Transfer Dispute Resolution Policy panel issued this decision.

Registrar easyDNS Technologies Inc. filed a complaint against Registrar PDR Ltd. d/b/a PublicDomainRegistry.com after PDR refused to transfer the 3 domains to easyDNS.

easyDNS Technologies, Inc., the Gaining Registrar, said that PDR Ltd., the Registrar of Record, breached the Policy on Transfer of Registrations by Registrars by refusing to transfer the <maxalbums.com>, <emp3world.com>, and <full- albums.net> domain names.  The Registrar of Record refused to do so because the domain names at issue were identified by the City of London Police as “suspected to be involved in the criminal distribution of copyrighted material either directly or indirectly and liable to prosecution” under a number of United Kingdom laws.

The Gaining Registrar said that the Transfer Policy does not permit a registrar of record to withhold a transfer on this basis.  According to the Gaining Registrar, the Transfer Policy permits a registrar of record to withhold a transfer of a domain name only in response to a court order.

Panelist Bruce E. Meyerson stated that:

No court order has been issued which would prohibit the transfer of the domainnames at issue from the Registrar of Record to the Gaining Registrar.  Therefore,there is nothing in the Transfer Policy which authorizes the Registrar of Record to refuse to transfer the domain names.

To permit a registrar of record to withhold the transfer of a domain based on the suspicion of a law enforcement agency, without the intervention of a judicial body, opens the possibility for abuse by agencies far less reputable than the City of London Police.  Presumably, the provision in the Transfer Policy requiring a court order is based on the reasonable assumption that the intervention of a court and judicial decree ensures that the restriction on the transfer of a domain name has some basis of “due process” associated with it.

The Registrar of Record argued that a basis for withholding the transfer of the domain names was their involvement in fraudulent activity.  The Response stated that the three domain names “were involved in criminal distribution of copyrighted material directly or indirectly and are liable to prosecution under UK law which serves as evidence of fraud” under the Transfer Policy.  First, the Registrar of Record’s assertion is not correct as the London Police Request does not state that it has evidence of fraud.
The Registrar of Record apparently contacted the London Police, as the Registrar states that the London Police have “agreed to answer any and all questions that might arise with regards to these domain names.”
Second, the reference to “evidence of fraud” in the Transfer Policy does not refer to fraudulent conduct by the holder of the domain name, but evidence of fraud with respect  to the transfer of that domain name.  See GNSO Issues Report, Inter-Registrar Transfer Policy Part B at 14-15 (May 15, 2009).

The decision was:

Having found that the Registrar of Record withheld the transfer of the domain names at issue in violation of the Policy on Transfer of Registrations by Registrars, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <maxalbums.com>, <emp3world.com>, and <full- albums.net> domain names be TRANSFERRED from the  Registrar of Record to the Gaining Registrar.