Unless KY Traffic Blockage is Shown by Nov 17, Judge Orders Domains Seized
Kentucky circuit court Judge Thomas Wingate ruled October 16 to uphold the domain seizure of 141 online poker and Internet gambling sites to the Commonwealth of Kentucky, EXCEPT sites whose owners "or respective registrants or their agent, or any other person with an interest or a claim" can demonstrate in person to the court that their site blocks traffic to Kentucky residents on or before a hearing on November 17. If blockage to Kentucky residents is not demonstrated, then the domains will be forfeited to the commonwealth.
On the downside for Kentucky state coffers, the ruling did not order any fine to be paid to the state.
Also, the question has been raised by gambling911 whether any person that appears before the court representing a domain to prove traffic has been blocked to Kentucky could "ultimately be subpoenaed. The judge implies immunity in his decision but that is a really hard call."
THE CORE MATTER: KENTUCKY'S FORFEITURE LAW
At the heart of the matter is the Kentucky law saying "any gambling device or gambling record possessed or used in violation of this chapter is forfeited to the state, and shall be disposed of in accordance with KRS 500.900, except that the provisions of this section shall not apply to charitable gaming activity as defined by KRS 528.101(1)."
SUMMARY OF JUDGE'S OPINION AND ORDER
Wingate wrote a 44-page opinion for upholding his initial order for the seizure, stating in his summary that "judicial interference of the Internet will NOT create havoc," and furthermore that the "Internet with all its benefits to modern day commerce and life, is still not above the law, whether on an international or municipal level."
You can read the entire document that Gambling911 kindly posted a copy of, at: http://www.gambling911.com/files/ima...onandOrder.pdf.
In the Opinion and Order the Judge addresses the issues raised at the September 25 and October 7 hearings. Here are highlights of some of the judge's replies to those issues raised:
Are the Defendants 141 Domain Names Property? Reply: the Judge cited other cases that shows domain names have value similar to property, as they are definable, can be exclusively claimed, and can be auctioned. Therefore they are property.
Do the defendants 141 Domain Names have a presence in Kentucky? Reply: because they do business in Kentucky, they have a presence. He dismisses the argument that no domain name is registered in Kentucky.
Are the Domain Names, by reason of their illegal or unlawful use, gambling devices? Reply: The Judge says that he follows the spirit of the Kentucky gambling device description and because the 141 domain names connect to 'virtual casinos', they act as gambling devices.
Is poker "Gambling" as defined by KRS 528.010(3)? Reply: Because poker has all 3 elements that define gambling: the element of chance, risking something of value for a chance to win a prize, and the awarding of a prize to the successful player, that online poker is gambling.
FRIEND OF COURT
In his opinion, the judge noted that only PPA, iMEGA, the Internet Commerce Association (ICA) and Network Solutions Inc (NSI) have 'friend-of-court status' and can continue to "present briefs and memoranda for purposes of informing the court of the ever-changing facets of the Internet," but they could not represent any domain.
GAMBLING & INTERNET COMMUNITY REACTION
"Clearly, we believe the judge in this case got it wrong," said John Pappas, executive director of the Poker Players Alliance(PPA). "First of all, we strongly disagree with Judge Wingate's ruling that poker is not a game of skill. As demonstrated in the amicus brief we filed, skill plays an essential role in being a successful poker player. Additionally, we believe that by confirming Governor [Steve] Beshear's actions, the court has set a dangerous precedent for censorship of the Internet. Today's ruling is a big step backward for both personal rights and Internet freedom."
Joe Brennan Jr., chairman of the Interactive Media Entertainment & Gaming Association (iMEGA) said, "What Judge Wingate has done is to create the 'ultimate weapon' to be used by the powerful and influential to attack content they oppose. This will enable government to eliminate competition from differing ideas, beliefs and commerce. This decision today is where it starts, but where will it stop?"
Brennan noted that iMEGA had already prepared for this possible result from the Kentucky court, and will challenge this decision at both the Federal and State courts, to prevent "this cancer from metastasizing and threatening the entire online world."
"This decision must not be allowed to stand, because of the threat it poses to the Internet as a whole," said Brennan. "Judge Wingate has ignored the clear laws of his own state in coming to a decision that essentially green-lights any jurisdiction - in the US and abroad - to ignore our rights and abuse their power to do away with competition or speech or content with which they oppose, regardless of the law. This is a dark day for Internet freedom."
PPA PRESSES LEGISLATION & REGULATION NOT PROHIBITION
"I am certain that many of the plaintiffs in this case intend to quickly appeal this matter,"noted John Pappas, executive director of the PPA. "We are confident that the Kentucky Appellate Court will review the facts and overturn today's order. At the same time, the PPA will continue its efforts to protect the rights of Kentucky citizens to play poker online."
Pappas added, "To truly address Governor Beshear's concerns with online gaming, the PPA continues to encourage the introduction of legislation, modeled after federal legislation such as that introduced by Senator Robert Menendez and Congressman Barney Frank, that would license and regulate online gaming. This approach would allow Kentucky to legally capture millions of dollars to increase revenue and fund critical state programs."
