[00:00:01] Speaker 00: Case number 14-7193 at L. Susan Weinstein, individually as co-administrator of the estate of Ira William Weinstein and as National Guardian of Plaintiff David Weinstein Minor at L Appellant versus Islamic Republic of Iran at L. Mr. Capps for the Appellant, Mr. Francisco for the Appellees. [00:01:05] Speaker 03: Good morning. [00:01:05] Speaker 03: Mayor Johnson, on behalf of Plaintiff's Appellants. [00:01:08] Speaker 03: My clients are victims of terrorism. [00:01:09] Speaker 03: Suffered mightily at the hands of Iran, Syria, and North Korea. [00:01:13] Speaker 03: And for that, received judgments in excess of approximately $250 million compensatory damages, cumulatively. [00:01:19] Speaker 03: $1.75 billion punitive damages. [00:01:22] Speaker 03: Haven't been able to collect anything. [00:01:24] Speaker 03: The governments of Iran, North Korea, and Syria, that's incorrect. [00:01:26] Speaker 03: They haven't been able to collect materially anything. [00:01:28] Speaker 03: They've collected some small amounts. [00:01:29] Speaker 03: The governments of Iran, North Korea, and Syria haven't paid, and they're not going to pay. [00:01:32] Speaker 03: They've made it very clear. [00:01:34] Speaker 03: Congress tried to address this problem through four separate enactments, culminating in 28 U.S.C., 16 10G, to enable victims of terrorism to go through the legal process, the process driven by attorneys, and through the court system, to find assets that others have been found, and try to collect the limited assets of Iran, North Korea, and Syria that exist in the United States. [00:01:57] Speaker 03: The internet is run by each two ICANN, at least at the root zone level, at the highest level of the internet. [00:02:02] Speaker 03: Iran, North Korea, and Syria have Internet assets. [00:02:04] Speaker 03: They have country code, top-level domain names, and IP addresses that, again, are operated through buy-in through ICANN in California and DC. [00:02:21] Speaker 03: So the clients attach those assets. [00:02:26] Speaker 03: It did attach those assets in the District of Columbia through a writ of attachment using the process supplied by a D.C. [00:02:32] Speaker 03: statute. [00:02:33] Speaker 03: And the court below quashed that writ of attachment, not allowing any discovery, not allowing us to submit any substantive argument at all. [00:02:40] Speaker 03: We requested additional time by motion following discovery. [00:02:45] Speaker 03: And the district court didn't allow that, finding that it could reach the questions on threshold questions of law under D.C. [00:02:52] Speaker 03: law. [00:02:54] Speaker 03: That was an abusive discretion on two levels. [00:02:57] Speaker 03: First of all, it misapplied DC law. [00:02:59] Speaker 03: And in reliance on the misapplication of DC law, that formed the basis of his decision to deny discovery. [00:03:06] Speaker 03: And secondly, it didn't even reach the question of the IP addresses at all. [00:03:09] Speaker 03: It simply didn't address them. [00:03:10] Speaker 03: That's not the fault of the district court, certainly. [00:03:13] Speaker 03: ICANN didn't raise the issues. [00:03:14] Speaker 03: And because we didn't get the opportunity to provide substantive briefing and response, the district court apparently wasn't even aware that the IP addresses were attached. [00:03:22] Speaker 03: But nevertheless, it was an abuse of discretion not to allow discovery on that question without even addressing the issue, without reaching substantive points of law. [00:03:31] Speaker 03: Instead, it applied Virginia law, a peculiar statute that relies on the existence of liabilities, quote unquote, liabilities, between the guard of sheep and the judgment debtor. [00:03:48] Speaker 03: The liability requirement does not exist under DC law. [00:03:51] Speaker 03: And when the court in Umbro held that the district court applied, the court in Umbro held that because a domain name is not a liability owed to the judgment debtor, that non-liability can't be attached because, again, the Virginia statute requires the existence of a liability. [00:04:07] Speaker 03: Umbro did not reach the question of whether domain names are property. [00:04:11] Speaker 03: It addressed it. [00:04:12] Speaker 03: It acknowledged that one of the parties believed that it was property, but didn't reach the question, as Tucares.com, the 28-J case that we sent you recently, CRS Recovery, and Sprinkler Warehouse all make clear, among other cases. [00:04:26] Speaker 03: Umbro was an outlier. [00:04:29] Speaker 03: It's not persuasive. [00:04:31] Speaker 03: Even if it weren't an outlier, an outlier is probably too weak. [00:04:33] Speaker 03: It's the only case. [00:04:35] Speaker 03: except for a couple that rely on Umbro. [00:04:37] Speaker 03: At least this question decided in the manner that Umbro did. [00:04:42] Speaker 03: It's not persuasive. [00:04:43] Speaker 03: And it's not relevant to see CTO TLDs, because country-level domain names, unlike secondary to second-level domain names, do not receive services at any substantial level, beyond the de minimis services that ICANN provides in changing or directing the change to the root zone code one time. [00:05:07] Speaker 03: And because of that, because the top-level domain names are not recipients of services on an irregular basis, the analysis in UMBRO relevant to the provision of services that the top-level domain name gives to the secondary domain name, which again, it isn't applicable here at that higher level. [00:05:24] Speaker 03: The analysis doesn't apply at all. [00:05:27] Speaker 03: Moreover, regarding the question of the provision of services that I can't rely so heavily on, [00:05:34] Speaker 03: It's a mistake, because properties attach on a regular basis. [00:05:39] Speaker 03: Without regard to the weather, there's a provision of services. [00:05:42] Speaker 03: Without regard to the question of services that animated AMBROS so much and ICANN's briefing. [00:05:47] Speaker 03: For example, apartment buildings. [00:05:50] Speaker 03: co-ops, any leasehold. [00:05:52] Speaker 03: These are all, not every leasehold, but many leaseholds, property with an easement on it. [00:05:57] Speaker 03: These are all examples of real property that, maybe not in the hands of a garnishee, but certainly when you're going after the judgment debtor, are certainly attachable. [00:06:05] Speaker 03: There's a provision of services very often. [00:06:07] Speaker 03: There are limitations on the use of property. [00:06:09] Speaker 03: Nevertheless, it's attachable. [00:06:10] Speaker 03: It's attachable subject to the limitations, certainly. [00:06:13] Speaker 03: But the existence of limitations is not a reason not to allow attachment. [00:06:27] Speaker 03: DC statute entitles the judgment creditors to discovery. [00:06:31] Speaker 03: It's a provision in the code. [00:06:32] Speaker 03: We're entitled to deposition. [00:06:38] Speaker 03: We're entitled to interrogatories. [00:06:40] Speaker 03: We submitted interrogatories. [00:06:42] Speaker 03: ICANN responded with one word, essentially, no. [00:06:46] Speaker 03: Provided no information of any relevance. [00:06:49] Speaker 03: didn't allow it, didn't submit to the decision, not that we directly demanded that they do so. [00:06:54] Speaker 03: Instead, we requested significant discovery beyond just deposing ICANN, deposing third parties at great length, excuse me, explained at great length, and the district court again did not allow it. [00:07:07] Speaker 03: Reaching these issues, reaching these issues on this record would do a great injustice. [00:07:12] Speaker 03: It would do great justice to my clients, first of all. [00:07:15] Speaker 03: It would do great justice to the top level domain managers around the world who aren't represented here, who are being told by ICANN that their property is not property. [00:07:23] Speaker 03: A similar property that has been sold in one instance for $107 million, referring to the columbia.co domain name, which is referenced in the appendix. [00:07:32] Speaker 03: It was a sale of that asset for $107 million. [00:07:35] Speaker 03: Other assets that have similarly been transferred, the details of which are not exactly reflected in the record. [00:07:41] Speaker 03: And again, that's because there's been no discovery. [00:07:43] Speaker 02: Can I ask you, assuming that they are property, [00:07:49] Speaker 02: I have two questions about DC law, which are actually questions generally about the common law of attachment. [00:07:56] Speaker 02: So one requirement is that the creditor [00:08:03] Speaker 02: can't obtain more rights in the property than the debtor, right, than the judgment debtor. [00:08:07] Speaker 02: That's what we said in Heiser, right? [00:08:11] Speaker 02: And secondly, that the garnashee has to be, has to have the property in its hands. [00:08:19] Speaker 02: It has to be in possession of the property. [00:08:21] Speaker 02: Correct. [00:08:22] Speaker 02: Both of those are correct. [00:08:23] Speaker 03: Generally, yes. [00:08:24] Speaker 02: Well, that's what the D.C. [00:08:25] Speaker 02: statute specifically talks about in the hands of and talks about possession. [00:08:29] Speaker 03: Yes, but it's talking about physical property mostly. [00:08:31] Speaker 02: That particular statute you're referring to. [00:08:33] Speaker 02: Well, it has to be in possession of something. [00:08:35] Speaker 03: Okay, I mean, when you're talking about intangible property, it's obviously legal fiction. [00:08:40] Speaker 03: And so to talk about it in that sense is a little bit challenging, but okay. [00:08:43] Speaker 02: So my question, I just want to understand exactly what we're talking about here. [00:08:46] Speaker 02: As I read your attachment letter, [00:08:50] Speaker 02: You want the CCTLD – I'm going to just talk about Iran, just because it's easier – of Iran. [00:08:55] Speaker 02: And you want to get – that's one of the – one thing. [00:08:59] Speaker 02: The government of Iran's IP addresses and the ministry's IP addresses, correct? [00:09:04] Speaker 02: Those are the three things. [00:09:05] Speaker 02: The way in which you would get the CCTLD of Iran is by updating an entry and a route zone directory. [00:09:12] Speaker 02: Is that right? [00:09:13] Speaker 02: Correct. [00:09:14] Speaker 02: Okay. [00:09:14] Speaker 02: So starting with that one. [00:09:19] Speaker 02: does iran have the power to require ICANN to make that change? [00:09:26] Speaker 02: Does Iran have the power? [00:09:27] Speaker 02: Yeah, because they're the judgment debtor, right? [00:09:29] Speaker 02: Yes. [00:09:29] Speaker 02: So, since you can't get any more power than the judgment debtor has, could Iran make ICANN make that change? [00:09:37] Speaker 03: I'll respond directly, but first, I think that's in the statement of the law. [00:09:40] Speaker 03: We can't take more interest than Iran has. [00:09:43] Speaker 03: But that doesn't mean that we can't do things that Iran can't do. [00:09:46] Speaker 03: Because the rules say, Heiser, for example, says that, again, you can't attach more than the judgment debtor has. [00:09:52] Speaker 03: But that doesn't mean that through the legal process, through court order, we can't do things that Iran by itself wouldn't be able to do. [00:09:58] Speaker 03: There's a decision by this court, Washington Loan and Trust, 1902, I think, cited at the end of our reply brief, which says that it was talking about a safe deposit box. [00:10:09] Speaker 03: But there's two keys, obviously. [00:10:10] Speaker 03: The bank has one key, and the owner of the box has another key. [00:10:14] Speaker 03: The court says that the court is grappling with this issue because the judgment debtor whose property is being attached only has one of the keys. [00:10:20] Speaker 03: The judgment debtor by himself can't open the box. [00:10:22] Speaker 03: And the court says that's irrelevant. [00:10:24] Speaker 03: It would be very strange to look at law that way, to look at judgment that way. [00:10:27] Speaker 02: The judgment debtor, in that case the holder of the safe deposit box, has the power to require the bank to open a safe deposit box. [00:10:35] Speaker 02: If I get a safe deposit box, I get a key. [00:10:38] Speaker 02: Obviously, the bank gets a key. [00:10:40] Speaker 02: And by my contract with the bank, they've got to open it when I want it open, right? [00:10:44] Speaker 03: There are limitations. [00:10:45] Speaker 03: I mean, it's 3 in the morning. [00:10:46] Speaker 02: I can't demand it. [00:10:47] Speaker 02: OK. [00:10:47] Speaker 02: But at some point, the bank has to be willing to open it, otherwise nobody would ever get out of shape to possibly. [00:10:53] Speaker 02: Does Iran have that authority over ICANN? [00:10:58] Speaker 02: So let's say Iran wanted to. [00:11:01] Speaker 03: I believe the answer is yes. [00:11:02] Speaker 03: And in what way? [00:11:04] Speaker 03: First of all, this is fast to the record issue. [00:11:06] Speaker 03: The record is not developed. [00:11:07] Speaker 03: And we haven't had the opportunity to develop it. [00:11:08] Speaker 03: It's an extremely important dancer in this question. [00:11:10] Speaker 03: I don't think the court can or should reach this issue. [00:11:12] Speaker 03: Well, give me an idea of how it works. [00:11:13] Speaker 03: Sure. [00:11:14] Speaker 03: Iran owns this property. [00:11:16] Speaker 03: It belongs to Iran. [00:11:18] Speaker 03: It was developed by John Postle, the process by which it transferred is not developed by anyone, I don't think. [00:11:25] Speaker 02: I'm assuming that for the purposes of this argument. [00:11:27] Speaker 02: If Iran says, I want to transfer my .IR to, I don't know, Korea or something, [00:11:36] Speaker 02: Is there anything that requires ICANN to do that? [00:11:38] Speaker 03: There are limitations. [00:11:39] Speaker 03: I mean, if they want to transfer it to Korea, that would be difficult, because the dot IR is obviously intended for the people of Iran. [00:11:45] Speaker 03: And so giving it to Korea would create problems. [00:11:46] Speaker 03: Giving it to somebody who doesn't have the ability to manage it, doesn't have the technical skills to be able to manage it properly would be a problem. [00:11:52] Speaker 03: And those limitations need to be abided by. [00:11:54] Speaker 03: But beyond that, it's not ICANN's role to say yes or no if it belongs to Iran. [00:12:00] Speaker 03: ICANN is not Congress. [00:12:02] Speaker 03: ICANN doesn't create law. [00:12:03] Speaker 02: Could Iran sue ICANN, if ICANN refuses to do this, and force them to allow the change to a different... I don't know... I don't see why not. [00:12:16] Speaker 02: And now, does ICANN have possession of the CCTLDs? [00:12:23] Speaker 03: I can't have possession. [00:12:24] Speaker 02: Again, we're talking about intangible asset. [00:12:26] Speaker 01: I understand that, but the statute... You said that several times. [00:12:29] Speaker 01: Intangible assets can be possessed. [00:12:32] Speaker 01: Yes, but... It doesn't follow. [00:12:34] Speaker 01: If you call it intangible, you can't possess it. [00:12:36] Speaker 01: I mean, one of the prime examples is the trade secret. [00:12:40] Speaker 01: Would you say the company that's manufacturing a particular product in accordance with their trade secrets doesn't possess the trade secrets? [00:12:47] Speaker 03: Of course they do, Your Honor. [00:12:48] Speaker 03: They own the trade secret. [00:12:50] Speaker 03: The word possess has connotations that don't apply to an intangible asset. [00:12:55] Speaker 03: And for the purposes that we're talking, absolutely a trade secret is owned and possessed by the party that created it. [00:13:04] Speaker 02: Well, I thought that the CCTLDs had been delegated to the registry managers. [00:13:12] Speaker 03: That's the process by which I can give them out. [00:13:15] Speaker 03: But again, I can create them for a specific purpose. [00:13:21] Speaker 03: It was to benefit Iran in its subjects. [00:13:23] Speaker 03: I can describe the process at which it gives CCDLDs out and takes them away and gives them to other people as delegation, suggesting that it's done entirely on a discretionary basis. [00:13:33] Speaker 03: But that's ICANN's nomenclature. [00:13:36] Speaker 03: I mean, that has nothing to do with the way that the law ought to look at CCDLDs. [00:13:40] Speaker 02: Well, you talk about reclaiming them. [00:13:42] Speaker 02: I just wonder, what does that mean? [00:13:44] Speaker 02: Reclaiming them on behalf of Iran. [00:13:45] Speaker 02: Is that your question? [00:13:46] Speaker 02: That ICANN can reclaim them from Iraq. [00:13:49] Speaker 02: Oh, that's the IP addresses we're talking about. [00:13:53] Speaker ?: OK. [00:13:54] Speaker 02: So how was it going to, I see, they didn't have to update the entry in the route zone directory, that's what you said, right? [00:14:01] Speaker 02: Correct, that's all that would happen. [00:14:03] Speaker 02: And who has the route zone directory? [00:14:04] Speaker 03: It's currently in the hands of VeriSign. [00:14:07] Speaker 02: Right, so why shouldn't this case be brought against VeriSign in Virginia rather than against ICANN in Washington? [00:14:14] Speaker 03: Well, that's a good question. [00:14:15] Speaker 03: ICANN is in charge. [00:14:16] Speaker 03: I mean, their assign is essentially a custodian. [00:14:19] Speaker 03: I don't believe that they have any discretionary role whatsoever. [00:14:21] Speaker 03: They're hired to do what they're told to do by ICANN. [00:14:25] Speaker 03: So it's not, for example, if you have a security company that's watching a vacation home in North Carolina, let's say, that I'm not there the whole year, the security company doesn't own the house. [00:14:40] Speaker 03: I mean, they're custodian over the asset in terms of, again, making specific changes to it. [00:14:47] Speaker 03: But it belongs to the federal government, ultimately. [00:14:49] Speaker 03: It's in possession of ICANN under the control of ICANN. [00:14:53] Speaker 02: So if it belongs to the federal government, can Iran really make it do anything? [00:15:00] Speaker 03: Can Iran make the federal government do anything? [00:15:01] Speaker 02: Our federal government, yeah. [00:15:02] Speaker 02: So that is, if Iran wanted to change the route zone directory to make a sale, like you're talking about, it couldn't make our federal government do anything. [00:15:11] Speaker 03: The CCTLV belongs to Iran. [00:15:13] Speaker 03: The root zone belongs to the federal government. [00:15:16] Speaker 02: But it would have to make a change in the root zone in order to get what you want, right? [00:15:22] Speaker 03: That's correct. [00:15:25] Speaker 03: It's an interesting problem. [00:15:27] Speaker 03: I mean, if you assume that the federal government has the rights of you to say, we're not doing anything, this is our property, we're doing nothing with it, it would shut the internet down. [00:15:35] Speaker 03: They certainly don't assert that right, they never have it, and in the brief they make clear that they have no role. [00:15:41] Speaker 02: So each of you assume the opposite of what actually turns out to be a useful position for you. [00:15:45] Speaker 02: If you take the position that it's owned by the United States, then Iran can't make it do anything. [00:15:51] Speaker 02: If they take the positions not owned by anybody, then maybe Iran can. [00:15:55] Speaker 02: So I'm a little confused, not wanting to resolve that question for the very reasons that you presented in your brief, I'm trying to assume it [00:16:03] Speaker 02: is correct, that you are correct about it. [00:16:05] Speaker 02: And in that case, I'm having trouble figuring out exactly what to do about this possession problem of the CCTLDs. [00:16:15] Speaker 03: The asset is controlled, again, by Iran. [00:16:17] Speaker 03: I'm sorry, the asset is controlled by Iran. [00:16:18] Speaker 03: Controlled by ICANN. [00:16:19] Speaker 03: And because it's controlled by ICANN and under the auspices of ICANN, ICANN has the authority, the government gave it the authority to make changes to it. [00:16:26] Speaker 03: I don't know that the government is certainly given the government's position. [00:16:31] Speaker 03: I don't know that the government's interest in the root zone plays any role here. [00:16:35] Speaker 03: Given again because the government is taking the position that it has no role to play. [00:16:39] Speaker 03: And I think that the government taking that position explicitly before this court ought to play a significant role in that discussion. [00:16:45] Speaker 01: Let's suppose you win. [00:16:46] Speaker 01: What do you do with the [00:16:48] Speaker 03: We would either license it or sell it to a party that has the ability, recognized by ICANN ideally, ideally somebody that's already administering the top level domain name and there are plenty of private companies that do that. [00:17:08] Speaker 03: to then operate the .IR on some kind of, well, if it's a license on some kind of royalty basis. [00:17:16] Speaker 01: What happens to all the holders of the secondary domain names? [00:17:19] Speaker 03: Absolutely nothing. [00:17:21] Speaker 03: They would not notice any change at all. [00:17:22] Speaker 03: There would be a seamless transition. [00:17:23] Speaker 03: The only difference is when they want to pay at the end of the year to renew their second level domain name, they would pay a different address. [00:17:30] Speaker 03: That would be the only difference. [00:17:31] Speaker 03: Because the transition would have to be seamless. [00:17:34] Speaker 03: It would totally disrupt the internet, and that's not our goal, certainly. [00:17:37] Speaker 03: And that's not what would happen. [00:17:39] Speaker 03: We would make sure that it would be a seamless transition to whatever we license or sold it to. [00:17:43] Speaker 03: And the second level of the minis would operate again without any interruption at all. [00:17:47] Speaker 03: It would just be complete. [00:17:47] Speaker 03: As long as the route zone is adjusted as it would have to be according to court order in a timely way, instead of directing traffic to address A, it would direct it to address B. [00:17:58] Speaker 03: and everything else would operate as before. [00:18:02] Speaker 01: You know, I can understand if the top-level domain name was something like TV, and that was that Tuvala island chain that did something. [00:18:18] Speaker 01: I'm not sure it's a sale or a lease or whatever, but what value is there in IR other than designating Iran? [00:18:27] Speaker 03: both the Iranian and CyW. [00:18:31] Speaker 03: People want to have, for whatever reason, somebody gets a .IR domain name. [00:18:34] Speaker 03: They want to have association with that nationality. [00:18:37] Speaker 03: That's what .IR represents. [00:18:39] Speaker 03: But I think a question ultimately gets to marketability. [00:18:42] Speaker 03: And if the question is, this asset isn't worth very much, so be it. [00:18:46] Speaker 03: That's what the market will bear. [00:18:48] Speaker 03: That's what the market will bear. [00:18:48] Speaker 03: And that's the amount that we'll recover. [00:18:50] Speaker 03: We're not going to recover more than the assets worth. [00:18:52] Speaker 03: But we certainly want that amount, whatever it is. [00:18:56] Speaker 03: And I think we're entitled to it. [00:18:57] Speaker 02: Can I ask you the same question now about the IP addresses? [00:19:01] Speaker 02: Sure. [00:19:01] Speaker 02: Were they not already allocated to the regional registries and then from there down to the ISPs and around? [00:19:10] Speaker 03: The answer is yes, and that's the only question I think the record can establish. [00:19:14] Speaker 03: Everything else about this is very fuzzy because there is no record. [00:19:17] Speaker 03: The reason that I think it's not a problem, first of all, when you're talking about large blocks of addresses, which is what happens with a country like Iran with a massive military program and a massive internet program and presence, the assets are allocated from the [00:19:33] Speaker 03: intermediate registry, the regional registry to Iran in enormous blocks. [00:19:38] Speaker 03: If the block that the registry received from ICANN is undivided and transfers in kind to Iran, the path from ICANN to Iran is very straightforward. [00:19:49] Speaker 03: At no point is the registry really getting involved in the asset. [00:19:53] Speaker 03: That's one. [00:19:54] Speaker 03: Getting involved in dividing up the asset, getting involved in the allocation of the asset because... I'm sorry. [00:19:59] Speaker 02: I'm further coughing. [00:20:00] Speaker 02: The IP addresses now are reallocated to individual machines and individual users and... That's done by Iran, at that point. [00:20:07] Speaker 02: Yes, yes, yes, but you want them back. [00:20:09] Speaker 03: We will, right. [00:20:11] Speaker 02: And how would you get them back? [00:20:14] Speaker 02: In other words, this again goes to the question I was asking before. [00:20:16] Speaker 02: They're not in the possession of ICANN. [00:20:19] Speaker 02: They would have to somehow be reclaimed from ICANN. [00:20:22] Speaker 02: Is that right? [00:20:22] Speaker 03: So that's point two. [00:20:24] Speaker 03: ICANN is in control of these things from the very beginning. [00:20:26] Speaker 03: And they remain in control of all. [00:20:27] Speaker 03: Even the addresses that are allocated, it's individually. [00:20:30] Speaker 03: No, the registries don't actually do that. [00:20:32] Speaker 03: But an internet service provider, for example, Verizon, will give out a single IP address to where it needs to go. [00:20:39] Speaker 03: The asset is nevertheless controlled by ICANN in the sense that in order to operate it needs to be centralized. [00:20:49] Speaker 03: It wouldn't work if it wasn't centralized. [00:20:51] Speaker 02: What is it that ICANN would have to do if you would succeed in attaching the IP addresses? [00:20:59] Speaker 02: What would you want ICANN to do about it? [00:21:01] Speaker 03: cause the IP address to be assigned to a different machine. [00:21:06] Speaker 02: And how does it do that? [00:21:07] Speaker 02: What does it have to change in order to do that? [00:21:10] Speaker 02: That's a technical question I personally don't even know the answer to. [00:21:12] Speaker 02: The question is, how does it fit within the attachment statute which talks about the asset being in the hands of credit being in the hands of possession, all those kind of words? [00:21:25] Speaker 03: It's in the hands of ICANN in the sense that ICANN controls it. [00:21:29] Speaker 03: I can't have control over these assets. [00:21:31] Speaker 02: You talk about sort of reclaiming them, and I'm unsure what you mean by that. [00:21:38] Speaker 03: It was probably a poor word choice. [00:21:39] Speaker 02: It actually metaphorically sounds like I can understand it. [00:21:43] Speaker 01: Well, in the context, that's what we were, you know, but anyway. [00:21:47] Speaker 01: I thought the IP addresses were distributed in a block to equipment manufacturers. [00:21:55] Speaker 01: Is that wrong? [00:21:56] Speaker 03: I believe that's wrong. [00:21:57] Speaker 03: I believe that's wrong. [00:21:58] Speaker 03: It's assigned at the local level, so to speak, by an internet service provider or by a country. [00:22:05] Speaker 01: If the file happened by a laptop, it already has an IP address on it. [00:22:09] Speaker 03: I don't believe that's true. [00:22:10] Speaker 03: It has 192.168, which is a local address. [00:22:13] Speaker 03: But that address is not. [00:22:15] Speaker 03: It's local to your home network. [00:22:17] Speaker 03: It's not an address that was assigned by the manufacturer. [00:22:24] Speaker 03: There are no further questions? [00:22:27] Speaker 03: Thank you. [00:22:40] Speaker 04: Chief Judge Garland, may it please the court, Noel Francisco for ICANN. [00:22:45] Speaker 04: Chief Judge Garland, I'd like to first address your question about Iran's authority in this area, and then Judge Randolph, I'd like to address your question about what would happen to the second-level domainings, because I think they go to the critical issues in this case, which is whether or not these country code top-level domainings are attachable property. [00:23:03] Speaker 04: I think that's the easiest way to resolve this without getting into the more esoteric questions as to whether they're property in some sense, even if you assume there's some sort of property. [00:23:11] Speaker 04: So you want to skip the grounds on which the district court decided the case. [00:23:15] Speaker 04: No, Your Honor, because I think the district court didn't address whether they're property. [00:23:18] Speaker 04: He was quite clear that he wasn't addressing that question. [00:23:21] Speaker 04: He held that they weren't attachable property. [00:23:24] Speaker 04: Here there are three basic principles of D.C. [00:23:26] Speaker 04: attachment law that each independently foreclose the attempt to attach the CCTLDs. [00:23:31] Speaker 04: The first, Chief Judge Garland, is the one that you put your finger on when you asked what Iran's ability was to force ICANN to transfer a CCTLD from one manager to another. [00:23:43] Speaker 04: And the answer is all Iran has the ability to do is make a request the same way you could make a request or the same way I could make a request. [00:23:50] Speaker 04: That is not [00:23:52] Speaker 04: anything the district court said, though. [00:23:54] Speaker 04: No, Your Honor, that was not the basis upon which the district court resolved this decision, but it is a basis upon which you can affirm the district court below. [00:24:02] Speaker 02: If we were satisfied that the facts are as you put them rather than as the facts are as your opposing counsel. [00:24:07] Speaker 04: Well, no, Your Honor, because on this issue, there's not even a factual dispute. [00:24:11] Speaker 04: They've never disputed the fact that it's ultimately... I thought you were disputing it when I asked them. [00:24:17] Speaker 04: Well, but if you look at what they actually sought discovery on, they never sought discovery on any of this. [00:24:22] Speaker 04: I think if you look at page 17 of the blue brief, [00:24:25] Speaker 04: They talk about what they want discovery on. [00:24:28] Speaker 04: They want discovery on ICANN's assertion that the attached Internet assets are not property. [00:24:33] Speaker 04: I'm assuming for the sake of argument that they are in some sense property. [00:24:37] Speaker 04: And they want discovery on whether ICANN is unable to transfer the assets. [00:24:42] Speaker 04: So they're not questioning that ICANN plays a role. [00:24:46] Speaker 04: They're simply questioning whether ICANN has the sole authority or whether ICANN can only do it with the concurrence of the Department of Commerce. [00:24:55] Speaker 04: Either way... If the question is whether they've conceded this, I'm going to ask them afterwards. [00:24:59] Speaker 04: Sure, Your Honor, but they certainly have not sought discovery on that. [00:25:02] Speaker 04: And on that question, it's quite clear that the transfer of a CCTLD from one manager to another is a multi-stakeholder process in which ICANN and the Department of Commerce have separate and independent roles, and they don't dispute that basic fundamental point. [00:25:17] Speaker 04: That's what underscores how what the plaintiffs are trying to get here is greater power in the underlying CCTLDs than Iran, Syria, and North Korea have. [00:25:26] Speaker 04: If Iran, Syria, and North Korea have no ability to transfer the CCTLD from one manager to another, then it's an inappropriate use of the garnishment process to force the very type of transfer that the purported owners of the property couldn't do themselves. [00:25:42] Speaker 04: I'd also like to turn to the issue upon which the district court did resolve this case because I think you said there are three principles of attack. [00:25:49] Speaker 04: Yes, what before we get to the district courts? [00:25:51] Speaker 04: What's your sure? [00:25:52] Speaker 04: So the first print the first prince of the principle of attachment all that we were just discussing was that no judgment power that judgment creditor can't get any more power than the judgment second one. [00:26:01] Speaker 04: Excuse me. [00:26:02] Speaker 04: The second is the one that the district court relied upon. [00:26:05] Speaker 04: Can we skip to the third? [00:26:07] Speaker 04: Sure. [00:26:07] Speaker 04: The third one is that goods and channels are limited to tangible personal property. [00:26:13] Speaker 02: So the one I was asking about that has to be in the hands of is not one of your three. [00:26:18] Speaker 04: No, that also, if you assume esoterically that this is property in some sense, neither the ccTLDs nor the underlying IP addresses, I would say, are currently in ICANN's possession. [00:26:37] Speaker 04: They have certain abilities over ccTLDs. [00:26:40] Speaker 04: certain roles in the transfer from one to another. [00:26:43] Speaker 04: They don't have that same role with respect to the IP addresses, but I don't think in either way could you say that they're in their hands. [00:26:49] Speaker 04: All right. [00:26:49] Speaker 04: I interrupted you. [00:26:50] Speaker 04: You have two other. [00:26:51] Speaker 04: Sure. [00:26:52] Speaker 04: So I would like to defend the basis upon the judgment below, because I think it was absolutely correct. [00:26:58] Speaker 04: And that's the first principle, that you cannot use garnishment law to insert yourself into the middle of an ongoing relationship to provide services. [00:27:06] Speaker 04: Here, what plaintiffs effectively want to do is to force internet users in Iran, Syria, and North Korea to purchase internet services from either them or their designee. [00:27:17] Speaker 04: To give an example, suppose I had a contract with the government of Iran where I paid them money in order to provide me with legal services. [00:27:25] Speaker 04: What plaintiffs are effectively trying to do is step into Iran's shoes and force me to purchase legal services from them. [00:27:32] Speaker 04: Well, that is simply an inappropriate use of garnishment law. [00:27:36] Speaker 02: Can I? [00:27:36] Speaker 02: OK, so the problem that I have with the district court's opinion is that it's based on the Umbro case. [00:27:43] Speaker 02: And the Umbro case is based, it only resolves the question of second level domains. [00:27:49] Speaker 02: And it says that you can't attach second level domains. [00:27:52] Speaker 02: That seems to me very unlikely to be DC law. [00:27:56] Speaker 04: I think that it's based not just on the Umbro case, it's also based on the general principle as I agree that the least as far as DC. [00:28:05] Speaker 02: unlikely that DC would say that, I don't know, porno.com, which you can imagine what they do, and they owe a lot of money to [00:28:16] Speaker 02: extra porno dot com and they don't pay and um extra porno would be able to attach them just like in california they're able to attach and in minnesota they're able to attach doesn't that seem likely in the development now um i don't know your honor but that's clearly distinguishable because i can take the porno dot com [00:28:36] Speaker 04: Say I have the right to control the porno.com second level domain name. [00:28:41] Speaker 04: I have no obligation to actually use it. [00:28:43] Speaker 04: Say I'm a member of the Christian right and I don't want it to be used. [00:28:47] Speaker 04: I can purchase it, stick it on a shelf and let it collect dust. [00:28:51] Speaker 04: The same is not true when it comes to a top level domain name. [00:28:54] Speaker 04: The sole function of assigning a manager to a top level domain name [00:28:58] Speaker 04: is to pose upon them the duty to operate that name. [00:29:01] Speaker 04: And that's why, with respect to top-level domain names, the underlying property, assuming for the sake of argument that we're going to call it property, is completely inseparable from the duty to operate the CCTLD. [00:29:13] Speaker 04: And plaintiffs are quite candid in what they want. [00:29:15] Speaker 04: They want to either be able to operate it themselves or, as counsel just explained, license it to somebody else to operate it. [00:29:23] Speaker 04: So in other words, they're trying to force internet users in these countries to purchase a bundle of services from either them or their designee. [00:29:30] Speaker 04: It's not just Umbro that makes clear why that's inappropriate. [00:29:34] Speaker 04: It's also cases like Cummings General Tire and Shippert's DC Court of Appeals cases. [00:29:38] Speaker 04: I'm not going to tell you that those cases are squarely on all fours. [00:29:41] Speaker 04: They're not. [00:29:41] Speaker 04: But they stand for the basic proposition that when you've got an ongoing relationship to provide services, garnishment isn't an appropriate way to insert yourself into the middle of that in order to essentially attach the payments that flow from the use of those services. [00:29:57] Speaker 04: And under certification law, you don't need a DC case [00:30:02] Speaker 04: on all fours in order for this court to resolve it. [00:30:05] Speaker 04: You just need a discernible path to resolution. [00:30:07] Speaker 04: Here I would submit that those cases, along with Umbro, which stands for the same basic principle, you might disagree with how they applied the principle and the facts of Umbro, but the basic principle is the same principle as in Cummings and Shipwrights. [00:30:20] Speaker 04: That provides a discernible path to resolution, and again, it's not an issue upon which plaintiffs have sought discovery in this case. [00:30:27] Speaker 04: The third basis is the cleanest legal basis to resolve this, and there's absolutely no question on anybody's part as to whether discovery is necessary. [00:30:37] Speaker 04: And that's the meaning of the phrase goods and channels in the D.C. [00:30:40] Speaker 04: attachment law. [00:30:42] Speaker 04: As this court held in the Heiser case, when it comes to interpreting garnishment statutes, D.C. [00:30:47] Speaker 04: applies the strict construction rule. [00:30:49] Speaker 04: That means you have to adopt the narrowest reasonable interpretation of the words in order to safeguard the rights of innocent third-party garnishes like I can. [00:30:57] Speaker 02: And in the Parsons case... The case that Heiser is talking about is a due process case. [00:31:03] Speaker 02: It's about the due process provided to the garnishy. [00:31:07] Speaker 02: It's not about what is the subject of garnishment. [00:31:11] Speaker 02: And as I read the DC cases, they are... I'm just going to try to find them. [00:31:19] Speaker 02: Roe says, goods and channels mean all categories of property and all rights and interests in property. [00:31:27] Speaker 02: That is as broad as can be. [00:31:30] Speaker 04: Well, I disagree with that reading of Roe, Your Honor. [00:31:32] Speaker 04: Roe involved the execution of a judgment in a municipal court. [00:31:36] Speaker 04: The specific statute that applied to the execution of a judgment in municipal court did not use the phrase goods and chattels. [00:31:42] Speaker 04: It is true that there's some dicta in Roe that separately discusses a different statute that wasn't applicable in that [00:31:49] Speaker 02: All that means is that there isn't a case directly on point, but as you told me a few minutes ago, all we have to do is be able to discern the path, and the Court of Appeals there is pretty much explaining the path, which is that we're no longer, there's a long discussion about this, we're no longer going to distinguish between law and equity, we're no longer going to distinguish between tangible and intangible, we're going to, these words mean everything, all kinds of property. [00:32:13] Speaker 04: accept, Your Honor, that much more recent D.C. [00:32:16] Speaker 04: case law makes a much clearer, discernible path. [00:32:19] Speaker 04: And that's the strict construction rule. [00:32:21] Speaker 04: In Heizer, they were citing D.C. [00:32:24] Speaker 04: Court of Appeals case law that stands for the basic proposition that's widely accepted in other courts as well, that when you interpret garnishment statutes, you need to construe them narrowly in order to safeguard the rights of third-party garnished youth. [00:32:35] Speaker 04: So you start with that strict construction rule, which requires you to adopt a narrower resolution. [00:32:39] Speaker 01: And the statute here, what is it, subsection G, [00:32:42] Speaker 01: Yes, Your Honor, exactly. [00:32:47] Speaker 04: And then when you combine that with the D.C. [00:32:48] Speaker 04: Court of Appeals far more recent decision in Parsons, Parsons, which involved trusts and estates, made crystal clear that one common definition of goods and chattels is limited to tangible personal property. [00:33:01] Speaker 02: Yeah, but I'm sorry, but that's one, if I'm correct about that, that's one where you take the context of the will and you make that it could be read either way, but that the more common way is it covers everything. [00:33:13] Speaker 02: And in the context of that case and that will, [00:33:18] Speaker 04: They said that they were going to read it narrowly, but that's not... Well, the will didn't actually use the phrase goods and chattels. [00:33:24] Speaker 04: They were discussing the phrase goods and chattels and explaining how one common understanding of the phrase goods and chattels was limited to... Normally, a bequest of personal property includes every form of personal property from whatever source it may be derived. [00:33:39] Speaker 02: The context may show that it's limited to tangible. [00:33:42] Speaker 02: And in the context of this will, they decided it was. [00:33:45] Speaker 04: But if you continue that sentence, Your Honor, it would limit it to tangible personal property, which is one definition of goods and shadows. [00:33:52] Speaker 04: Yes, one meaning. [00:33:53] Speaker 02: Right. [00:33:54] Speaker 04: But there are other meanings. [00:33:56] Speaker 04: Look, I would concede that there are [00:33:58] Speaker 04: different definitions of goods and chattels when you look out at the various sources. [00:34:01] Speaker 04: So how would you say it's limited? [00:34:02] Speaker 04: What do you think goods and chattels means? [00:34:04] Speaker 04: Sure. [00:34:05] Speaker 04: What it means is tangible personal property. [00:34:07] Speaker 04: Only tangible? [00:34:09] Speaker 04: Yes, Your Honor. [00:34:09] Speaker 04: When you construe it in light of the strict construction rule. [00:34:12] Speaker 04: Because the strict construction rule requires you to adopt the narrower construction. [00:34:16] Speaker 04: In fact, I think- So copyrights can't be attached in the DC. [00:34:21] Speaker 04: Not under the DC attachment law, limited to goods, chattels, and credits. [00:34:25] Speaker 04: So for example, it also includes the word credits. [00:34:27] Speaker 04: If goods and channels does actually include all intangible property, the term credits would be completely superfluous. [00:34:34] Speaker 04: So let me even assume for the sake of argument that there's some category of intangible property that gets swept into the phrase goods and channels. [00:34:42] Speaker 04: It certainly doesn't include the most esoteric form you could imagine, this thing that we call a CCTLD. [00:34:48] Speaker 02: Just to be clear, so you are saying second level domain names can't be attached in the District of Columbia. [00:34:53] Speaker 02: That's your view. [00:34:54] Speaker 04: not as a good chattel or credit. [00:34:56] Speaker 02: That's true, huh? [00:34:57] Speaker 02: Then how? [00:34:57] Speaker 04: Your honor, there may be, I think you're probably right, that they can't be attached. [00:35:02] Speaker 04: That doesn't mean they're not property. [00:35:03] Speaker 04: That doesn't mean they're not subject to conversion. [00:35:06] Speaker 04: That doesn't mean they're not subject to everything else. [00:35:08] Speaker 04: But when you take a statutory phrase like goods, chattels, and credits, [00:35:12] Speaker 04: Combine it with a strict construction rule and a clear, recent D.C. [00:35:16] Speaker 04: Court of Appeals decision stating that one common understanding of that term is limited to tangible personal property. [00:35:23] Speaker 04: That's the construction you should apply. [00:35:25] Speaker 04: And I would submit that the fact that it can be broader in the trust and the states context actually helps us. [00:35:30] Speaker 04: What the case law makes clear in D.C. [00:35:32] Speaker 04: is that when you're interpreting a will, you interpret language [00:35:35] Speaker 02: Also, just to be clear about what we said in Heizer is this court has construed strictly against the garnisher a statute in derogation of the common law. [00:35:46] Speaker 02: Not that the court of appeals was going to strictly construct, but only if it's in derogation of the common law. [00:35:54] Speaker 04: And if you look at the case law underlying that, it makes clear that the purpose of strictly construing it is in order to safeguard the rights of innocent third-party garnishes like I can. [00:36:03] Speaker 02: But at the end of the day... I need to look at it. [00:36:04] Speaker 02: That's the Austin case. [00:36:05] Speaker 02: And the Austin case, as I said, had to do with due process for the garnishie. [00:36:10] Speaker 02: Didn't have to do with the kind of property of the garnishie. [00:36:12] Speaker 02: And it said to common law, you have a right to notice. [00:36:16] Speaker 02: And in Austin, they weren't giving the garnishing any notice. [00:36:19] Speaker 02: And so that was in derogation of the common law. [00:36:21] Speaker 02: But it doesn't appear to be the common law that intangibles can't be attached. [00:36:26] Speaker 04: Your Honor, the common law rules, I think, were broader than the statutory rules. [00:36:30] Speaker 04: When you switched from a garnishment proceeding from common law to statutory, you then imposed upon the courts the obligation to construe that statutory language. [00:36:39] Speaker 04: And I would submit it needs to be construed [00:36:42] Speaker 02: Now, just to get the words that I just quoted correctly, we're going to constrictly construe where it's in derogation of the common law. [00:36:50] Speaker 02: That is what it says. [00:36:51] Speaker 02: It doesn't say we're going to strictly construe. [00:36:54] Speaker 04: And I don't think there's any common law rule that allowed the attachment of all intangible property. [00:36:59] Speaker 04: If there were a common law rule that allowed the attachment of all intangible property, and goods and channels included all intangible property, why on earth would you have these separate listings for the word credits? [00:37:09] Speaker 01: Goods and channels would have already encompassed credits. [00:37:16] Speaker 04: your honor it turns on DC law if you want to avoid what I consider to be the slightly more difficult questions as to whether this is property that is owned by these defending countries and hence don't we have to decide that question [00:37:33] Speaker 04: You don't have to, Your Honor. [00:37:34] Speaker 04: That's what this court held in the Chalabi decision, where it made clear that you could bypass a difficult statutory jurisdictional issue under FISA in order to reach the merit and it distinguished the statutory jurisdiction issue from the Article III jurisdiction. [00:37:49] Speaker 01: So you'll assume that the IR is property under FISA, right? [00:37:56] Speaker 01: Yes. [00:37:57] Speaker 01: But the question you're addressing is whether it's attachable. [00:38:00] Speaker 04: Whether it's attachable property under DC law. [00:38:03] Speaker 04: I think that under the federal rules, it turns on DC law rather than federal common law. [00:38:13] Speaker 04: And I think there are, in addition to Judge Garland to the issue we've been talking about, I think there are two other issues that don't require you to accept. [00:38:20] Speaker 04: my understanding of goods and channels in order to conclude that this is not attachable property under DC law, both the principle, really three principles, both the principle that you can't use garnishment law to insert yourself into the middle of an ongoing relationship to provide services, that the judgment creditor can't attempt to seize greater rights than the judgment debtor itself has, and the rule that the property actually has to be in the hands of the judgment creditor in order to be subject to garnishment. [00:38:47] Speaker 01: There was no argument in the briefing here about the terrorism insurance provision on blocked assets. [00:38:59] Speaker 01: Was that argued below? [00:39:00] Speaker 04: There was certainly argument by us below. [00:39:02] Speaker 04: an argument by us in our briefing. [00:39:05] Speaker 04: We've made clear from the very beginning that that was an issue in this case, yet the plaintiffs deliberately decided not to address it either in the court below or in this court. [00:39:14] Speaker 04: And this is why I must take issue with one of the statements of my brethren here. [00:39:20] Speaker 04: He [00:39:20] Speaker 04: They had every opportunity to address these issues. [00:39:22] Speaker 04: They obtained a six-week extension to their opposition to our motion to quash and had full opportunity to address these issues if they wanted, and they chose not to. [00:39:32] Speaker 04: Instead, they chose to, at the last minute, file a two-page, non-sustenance, so-called preliminary response. [00:39:40] Speaker 04: When we got to this court, [00:39:41] Speaker 04: You may recall that during the briefing on whether the issues should be certified to the DC Court of Appeals, we made clear in our briefing there, too, that we were going to raise these issues. [00:39:51] Speaker 04: We said it. [00:39:53] Speaker 04: And yet again, in their opening brief, they chose to remain silent. [00:39:56] Speaker 04: So one very simple way to resolve this issue would be on one of the DC attachment law questions. [00:40:02] Speaker 04: Another very simple way to resolve this issue would be to say that they forfeited any arguments that this court has jurisdiction under FISA and TRIA. [00:40:11] Speaker 04: Either way, I don't think it requires you to address the form of your questions as to whether, in some sense, CCTLDs are property. [00:40:20] Speaker 04: And therefore, we would urge the court to affirm the judgment below on one of those issues. [00:40:26] Speaker 02: The statute in Physia 1609, which is about attachment, says the property of the United States of a foreign state shall be immune from attachment, arrest, and execution except as provided in 1610 and 1611. [00:40:40] Speaker 02: Does that suggest that that is the only way to achieve attachment and we don't look at state law? [00:40:52] Speaker 04: Yes. [00:40:52] Speaker 04: I think it suggests that you look to state law unless there's a federal statute that... No, no, no, I'm talking about the Foreign Sovereign communities. [00:40:59] Speaker 02: Oh, I'm sorry, Your Honor. [00:41:01] Speaker 02: The proper subject to exit this is section 16 on that subject to existing international agreements. [00:41:06] Speaker 02: The property in the United States of a foreign state shall be immune from attachment and execution except as provided in section 16 10 and 11. [00:41:15] Speaker 02: And now those are the exceptions, the attachment exception. [00:41:17] Speaker 02: Yeah. [00:41:18] Speaker 04: So I think those provisions go to whether this court has jurisdiction over the statutory jurisdiction over the attachment proceeding in the first place. [00:41:26] Speaker 04: And once you satisfy, once you make that determination, then you look to local law to determine whether it nonetheless is attachable. [00:41:34] Speaker 04: Once, you know, the court has jurisdiction and then can determine the attachability under local law. [00:41:39] Speaker 04: Well, if that's the case, then doesn't have that. [00:41:41] Speaker 04: he decided first? [00:41:43] Speaker 04: No, your honor, because that's what this court held in Chalabi and also made clear in the Kramer against Gates case. [00:41:49] Speaker 04: Chalabi, I can give you the sites, 543 F third, 725 Kramer, 481 F third, 791. [00:41:57] Speaker 04: What Chalabi squarely holds is that you can bypass [00:42:01] Speaker 04: FISA statutory jurisdictional question. [00:42:04] Speaker 04: Judge Randolph, you're on the panel on that case, I believe. [00:42:07] Speaker 04: You can bypass a statutory jurisdictional question, and it particularly involved FISA in order to address the merits, and it distinguished it from the Steel Company Article III line of cases. [00:42:19] Speaker 04: It basically said Steel Company acknowledged that when you were talking about a statute as opposed to Article III jurisdiction, you didn't have to address it as a threshold matter, which is why we would urge the court to resolve this [00:42:30] Speaker 04: Look, we're perfectly happy if you want to resolve it in our favor on the Pfizer and Tria issues as well. [00:42:34] Speaker 04: But I think the easier way to resolve this case would be under D.C. [00:42:41] Speaker 04: attachment law or to simply recognize that they have forfeited the Pfizer and Tria questions. [00:42:50] Speaker 04: I'm happy to answer any further questions your honors have. [00:43:03] Speaker 02: Does this appellant have any time? [00:43:06] Speaker 02: We'll give a couple minutes. [00:43:07] Speaker 03: Go ahead. [00:43:08] Speaker 03: Thank you, Your Honor. [00:43:08] Speaker 03: On the issue of discovery, it's impossible to go through the entire list of things that we asked for. [00:43:13] Speaker 03: But I refer to the court to our motion to discovery on 31 of the appendix and the exhibits there, too. [00:43:17] Speaker 03: On the Cyrus Declaration on 36 of the appendix and the Gellman Declaration on 49 of the appendix and all of the exhibits and attachments, there's a very long list of things. [00:43:24] Speaker 03: The brief only offers a very brief summary of what we asked for in discovery. [00:43:28] Speaker 03: And I certainly think that it reaches the issues that the counsel was talking about a second ago. [00:43:32] Speaker 03: We're learning goods, channels, and credits. [00:43:35] Speaker 03: That phrase was codified in the DC Code in 1902. [00:43:38] Speaker 03: It goes back at least to the 1700s. [00:43:41] Speaker 03: It's a very old phrase, goods, channels, and credits, all three words together. [00:43:45] Speaker 03: My research suggests I might go back further than that, probably to the late Middle Ages. [00:43:48] Speaker 03: I haven't been able to exactly trace it down, and that's why it doesn't appear in the briefs. [00:43:51] Speaker 03: But it's a very, very old phrase that refers to a tad bit of a process of attachment. [00:43:55] Speaker 03: It's been reinterpreted in modern era as Roe v. Culpois makes clear that it's going to apply to intangible assets, although that was true before Roe v. Culpois also. [00:44:07] Speaker 03: It's a point that Roe v. Culpois was decided by this court before the DC Court of Appeals existed. [00:44:11] Speaker 03: And I believe that it's binding precedent on the DC Court of Appeals. [00:44:15] Speaker 03: The DC Court of Appeals is free to overrule it. [00:44:18] Speaker 03: When the DC Court of Appeals was founded in 1970, this court's precedent became that court's precedent, I believe. [00:44:28] Speaker 03: We do not seek to force the Iranian citizens or anyone else with a .IR domain in to buy anything from us. [00:44:34] Speaker 03: That's simply not true. [00:44:35] Speaker 03: We simply seek ownership of the .IR domain name. [00:44:38] Speaker 03: People who wish to leave the .IR domain name because they don't like the new purchasers are certainly free to do so. [00:44:43] Speaker 03: There's not discretion on our part, like an attorney. [00:44:46] Speaker 03: Their example, Robin Coppa, has discussed, is an attorney listed. [00:44:50] Speaker 02: It obviously reflects my ignorance about this. [00:44:54] Speaker 02: Can someone in Iran use a different country code? [00:44:58] Speaker 03: They can certainly use a generic top-level domain name. [00:45:01] Speaker 03: They can become a .com. [00:45:03] Speaker 03: Whether they can use .sy, I don't know. [00:45:06] Speaker 03: Iran, obviously, is different than the United States in terms of its law. [00:45:09] Speaker 03: I could buy a .ir domain name. [00:45:11] Speaker 03: The fact that I'm in America doesn't prevent me from doing so. [00:45:14] Speaker 03: I would assume that's true in Iran also, but of course, Iran's processes are different. [00:45:18] Speaker 03: Let me just say very briefly regarding FISA. [00:45:20] Speaker 03: I agree that the court needs to reach FISA. [00:45:22] Speaker 03: I think the court cannot resolve this without reaching FISA, and I think the court can't do so without discovery. [00:45:27] Speaker 03: There are a lot of issues relating to whether disaster is a property of that the court cannot reach, and certainly cannot reach justly in a way that would be just to the CCTLD. [00:45:35] Speaker 02: Can you say why we need to reach? [00:45:38] Speaker 02: It's a jurisdictional issue. [00:45:40] Speaker 02: The sovereign immunity issue? [00:45:41] Speaker 03: Right. [00:45:42] Speaker 03: It's a jurisdictional issue. [00:45:43] Speaker 03: And it gets to foreign relations. [00:45:46] Speaker 03: I think it would not be wise or consistent with prudential concerns to simply ignore it. [00:45:57] Speaker 03: Fine. [00:45:58] Speaker 02: And the reason that you didn't raise it [00:46:01] Speaker 02: That's what they say. [00:46:02] Speaker 03: The reason we didn't read it below is because we had no time. [00:46:06] Speaker 03: Regarding the Six Feet Discovery period, it's simply not true. [00:46:09] Speaker 03: The processes below are discussed in a reply brief at length. [00:46:12] Speaker 03: I just want to point out that the writs were sent to ICANN on June 6th. [00:46:16] Speaker 03: ICANN took until July 28th to respond, 35 days later. [00:46:20] Speaker 03: We moved to compel discovery on August 11th. [00:46:22] Speaker 03: ICANN finally produced documents trying to make that motion go away on September 19th, more than a month later. [00:46:30] Speaker 03: We moved her to the discovery four business days, three business days after those documents were produced. [00:46:37] Speaker 03: We weren't sitting on our rights. [00:46:38] Speaker 03: We were being diligent. [00:46:40] Speaker 03: Most of the delay below was in the hands of ICANN. [00:46:43] Speaker 03: We did everything that we could to move things along in a way that was amicable. [00:46:47] Speaker 03: And we requested from the district court the ability to respond fully on the merits [00:46:51] Speaker 03: After discovery, we expected if the district was going to say no, it would give us the opportunity to file a merits response and did not do so. [00:46:57] Speaker 03: Again, a very narrow legal grounds that I think were mistaken and from Judge Farland's questions, I think that the court agrees. [00:47:03] Speaker 03: And we would like to be able to go back and do this properly and create a record so that the court can review these questions properly when this case comes back. [00:47:10] Speaker 03: Thank you. [00:47:12] Speaker 02: Other questions? [00:47:13] Speaker 02: All right. [00:47:13] Speaker 02: We'll take the matter under submission. [00:47:14] Speaker 02: Thank you. [00:47:15] Speaker 02: We'll take the matter under submission. [00:47:16] Speaker 02: Thank you.