Kevin Spacey loses pivotal cybersquatting court case

Movie star unable to sue in US

By Kieren McCarthy, 26th November 2001

Movie actor Kevin Spacey has lost a landmark court battle over ownership of www.kevinspacey.com.

Judge Gary A Feess, of the United States District Court of the Central District of California, ruled on 14 November that if Mr Spacey wished to take ownership of the domain to court he would have to file in a Canadian court, where its current owner - the notorious "cybersquatter" Jeffrey Burgar resides.

The decision, in which Mr Burgar and his lawyer Mr EC Grimm "raise a novel threshold question regarding the exercise of personal jurisdiction where the Defendants' 'contact' with the forum have taken place in cyberspace", should at least allow a more level playing field in relation to future domain disputes. From now, complainants are unlikely to be able to chose where a case is heard, removing any incentive for law courts in certain areas to advertise their stronger approach to large companies and rich individuals.

This decision (case CV-3848) effectively ruins any hopes Mr Spacey had of taking over the domain, without buying it.

In the Anticybersquatting Consumer Protection Act 1999, US Congress accepted that as long as there is no attempt to sell on a "personal name" Web site for profit, then it is an example of "fair use" and permission is not needed from the individual in question.

This decision was roundly attacked by Californian senators at the time, who stood up for the Hollywood film industry. The California legal system could be considered the most sympathetic jurisdiction to anti-cybersquatter manoeuvres conducted by celebrities.

Arbitraitor

Why didn't Spacey's lawyers just go to domain arbitrators the World Intellectual Property Organisation (WIPO) or the National Arbitration Forum (NAF), like every the lawyers of every other celebrity and use their domain resolution system (Uniform Dispute Resolution Policy, more commonly known as UDRP)?

This is something that Mr Spacey did in April this year, winning the domain www.kevinspacy.com in August. UDRP has been heavily criticised in the past for showing bias towards famous or influential people, but... Mr Burgar won a previous WIPO case in almost identical circumstances over the domain www.brucespringsteen.com.

In that case (D2000-1532), the three-person panel made damning criticisms of how WIPO and UDRP operated, although recent decisions have not fully taken these into account.

Mr Spacey filed his case against Mr Burgar on 4 May this year, saying that Mr Burgar was "an infamous cybersquatter" who was using the actor's name to promote a commercial celebrity Web site. The suit claimed Mr Spacey and his production company M. Profitt Productions (named after the incestuous junkie crime lord Mel Profitt he played in TV show Wiseguy) owned the rights to Spacey's name, voice, and image. They wanted the domain transferred over and monetary damages paid.

That Mr Burgar is "an infamous cybersquatter" is not under question. He has had celebrity run-ins with Celine Dion, Jodie Foster, Mariah Carey, and others. But he is a rare example of someone willing to argue his case for domain name ownership and has helped more than almost anyone else in exposing contradictory and unjustifiable decisions made by the domain ruling bodies. ®