Tuesday, January 20, 2009

Kentucky Not King of Internet After All

Welcome to KentuckyRemember that case in Kentucky a couple of months back involving the seizure of 141 domains hosting online gambling sites? The one in which Franklin Circuit Court Judge Thomas D. Wingate ruled -- incredibly -- that the Commonwealth of Kentucky was justified in requiring those sites to block access by Kentucky residents or risk forfeiting the domains? And a few of them -- including the Cereus network and Cake Poker -- went ahead and did just that?

Last we heard, that decision had been appealed. This afternoon came the decision, and by a 2-1 vote among the three judges hearing it, the appeal was granted.

The Court of Appeals’ ruling does mention the jurisdiction question, but it appears it was the argument that a domain name was a “gambling device” that ultimately sunk the original decision. Reading through the judges’ explanation for why that argument is insufficient, you can just sense the judges -- at least the two who were in the majority here -- shaking their heads at the faulty logic that enabled Judge Wingate to arrive at such a weak conclusion:

“Suffice it to say that given the exhaustive argument both in brief and oral form as to the nature of an Internet domain name, it stretches credulity to conclude that a series of numbers, or Internet address, can be said to constitute a ‘machine or any mechanical or other device... designed and manufactured primarily for use in connection with gambling.’ We are thus convinced that the trial court clearly erred in concluding that the domain names can be construed to be gambling devices subject to forfeiture....”

And that is that. As the judges say, “Because we have concluded that petitioners are entitled relief on the above-stated basis, we decline to address other issues presented in the briefs and/or argued at oral argument.”

If you recall, the bulk of that decision (about three-fourths of the 44-page document) was taken up with a long “Discussion of the Issues.” (I summarized most of that original decision here.) That “Discussion” included the whole “gambling device” claim, but also touched on all manner of other issues, too, including arguments justifying Kentucky’s jurisdiction over the 141 domain names.

There was also a section in there addressing the question of whether poker is indeed gambling. With regard to that latter issue, Judge Wingate had determined that since “in the end, no matter how skillful or cunning the player, who wins and who loses is determined by the hands the players hold,” poker was indeed gambling.

But, like I say, the judges here aren’t bothering with any of that.

The judges do add a few parting shots, too, in the decision. One of the consenting judges explains how he’d also have granted the appeal since circumstances for the forfeiture of the domains weren’t met. And the dissenting judge also throws in his two cents regarding the “gambling device” question, weakly arguing that since computers are built by humans, and humans also write the software, we can therefore consider the whole kit-and-kaboodle a “device” and thus regard it as such in legal contexts. Luckily his two colleagues thought otherwise.

This ruling will be appealed, too (in the Kentucky Supreme Court). And I suppose anything could happen there, but it seems pretty doubtful this one is gonna get reversed yet again.

Good news for online poker players in Kentucky, then, as well as for those in other states, too, where similar seizure-type action might’ve been tried had this one not been successfully thwarted.

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