Of Process and Product: Kremen v. Cohen and the Consequences of Recognizing Property Rights in Domain Names by Noah M. Schottenstein

In Kremen v. Cohen the Ninth Circuit recognized a property right in domain names, defining property as any form of intangible benefit that is distinct and excludable. This reasoning is flawed for three reasons: (1) it is grounded in a faulty understanding of property law; (2) it is over-inclusive, capturing a variety of things and benefits that have been explicitly removed from the realm of property; (3) and it is under-inclusive, as it fails to consider a number of interests necessary for evaluating if something should be deemed property.