Ruling in Kentucky domain name case due today


Update: The ruling on the state of Kentucky's forfeiture motion was not released today as expected. According to the court clerk, computer problems have delayed the release of the ruling until sometime tomorrow.

A Kentucky circuit court judge is expected to rule today in the online poker domain names forfeiture hearing that took place in his court last week.

At stake is the future of 141 gambling Web site domain names, which were seized by the state without notice or hearing on Sept. 18. Affected sites include,,,, and

Today's ruling is highly anticipated by the poker community, which has rallied against Kentucky's efforts to shut down online poker.

The hearing on the state's motion to have the court order forfeiture of the seized domain names was originally set for Sept. 26.  However, that hearing was continued until last week in order to give representatives of the affected domain names time to prepare their arguments and submit necessary papers.

Last week, at the forfeiture hearing, Judge Thomas Wingate heard arguments from both sides in the dispute for over three hours, and then took the matter under submission. He stated at the conclusion of the hearing, "This is a very complicated matter and I will need seven days to render a decision."

The state was represented at the hearing by private attorney Robert Foote, working under a contingency fee agreement, and not the Kentucky Attorney General. Appearing on behalf of the defendant domain names were attorneys representing the Poker Players Alliance (PPA), which filed an amicus brief, the Interactive Gaming Council (IGC), the Interactive Media Entertainment and Gaming Association (iMEGA), the Internet Commerce Association (ICA) and Network Solutions, as well as some of the seized domain names' registrars, including GoDaddy, and representatives of some of the site owners.

The first issue for the judge to address was that of legal standing. The plaintiff argued that the attorneys representing the defendant domain names lacked standing to appear in court, claiming that they were "surrogates" and did not directly represent any of the entities owning the names covered by the seizure order. The judge disagreed and allowed attorneys to take part in the hearing.

The next issue was that of jurisdiction. The state argued that domain names are "virtual property" and thus are subject to jurisdiction at any location from which they can be viewed.  The state's attorney tried to use the case to argue that domain names are considered property that may be seized, but the defense argued the Bodog case was a trademark infringement case and irrelevant to the current dispute.

Attorneys for the IGC argued that Kentucky lacked jurisdiction over the domain names and that it was therefore unconstitutional for the state to seize them. "These domain names do not exist here," said Jerry Stouck, the IGC's Washington-based attorney.  "They can't be found in Kentucky and therefore they can't be seized here."

Attorneys for iMEGA similarly raised the issue of Kentucky's lack of jurisdiction over the domain names in its motion to dismiss.

In court, attorneys for Network Solutions, the leading domain name registration service, described for the court exactly how domain names work and why they are not "property" capable of being seized. NS attorney Tim Highland told the court, "People are not going to the domain names to gamble. They are going to the web site. The domain is made up of just letters and numbers. If anything the online gambling site itself should be seized."

The defense then countered the state's next two arguments, that online gambling is illegal in Kentucky and that domain names are "gambling devices" which are subject to seizure and forfeiture.

Under the relevant Kentucky statute, online poker would not be considered illegal as it is a game of skill, played not against the house but against other players.

They further argued that the definition of gambling device under the relevant Kentucky statute, 528.010, refers to mechanical devices such as roulette wheels and does not in any way correlate with Internet gambling domain names.

The defense made a special point of advising the court that Churchill Downs, the location of the Kentucky Derby, operates an online gambling site in the state and was not subject to the seizure motion.

Defense then went on to categorize the state's attempt to ban online gambling sites other than those run by businesses in the state as a protectionist measure to shield Kentucky businesses from out-of-state and foreign competition. Defense attorneys argued that the state's attempt to regulate interstate commerce, especially to benefit in state businesses, is an unconstitutional violation of the United States Commerce Clause.

The move to shut down online gambling in Kentucky was instigated by the Governor Steve Beshear. He was quoted as saying, "Illegal Internet gambling poses a unique threat to our Commonwealth. For individuals - particularly our youth - it is tantamount to a virtual home invasion."

But despite the anti-gambling rhetoric, opponents noted that Governor Beshear campaigned on a platform that included bringing more gambling to the state of Kentucky. His move to stop online gambling in the state has been seen as a way to eliminate competition for the state's horse racing and state lottery as well as for potential future casinos.

Sometime today we will find out if he was successful in his effort to ban online gambling in his state, or whether the representatives of the online poker community were able to convince the judge that this was something the state had no right to do.

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