Dan Solove over at Concurring Opinions reports on an insidious practice that unfortunately has become increasingly common: domain name hijacking.
Here’s how it works. The original owner of a popular website fails to renew its domain name prior to the expiration of the owner’s entitlement. An opportunistic “hijacker” then purchases the name and offers to sell it back to the original owner for a tidy sum. The original owner is then left with an unhappy choice: pay the hijacker off, or set up shop under a new domain name with the loss of traffic that such a switch inevitably entails.
The latest victim of such a hijacking scheme is Crescat Sententia, a popular blog that used to be located at http://www.crescatsententia.org/ but now has been forced to move to http://www.crescatsententia.net/.
Dan suggests that domain name hijacking of this sort may well be characterized as copyright infringement. But because the case for copyright protection isn’t clear cut, he wonders if there are other legal protections too.
Here’s my suggestion for another theory of liability: intentional interference with prospective economic advantage. The elements of that tort–(1) an economic relationship between the plaintiff and some third person containing the probability of future economic benefit to the plaintiff; (2) knowledge by the defendant of the existence of the relationship, (3) intentional acts on the part of the defendant designed to disrupt the relationship, (4) actual disruption of the relationship; and (5) damages to the plaintiff proximately caused by the acts of the defendant–all seem to be present here. The original website has an economic relationship with its existing readers or patrons; the hijacker knows about this relationship; the hijacker intentionally acts to disrupt the relationship by acquiring the domain name; the loss of the domain name actually disrupts the relationship by shutting down the old site without indicating where a new site, if any, is located; and the original owner is thereby damaged.
As matter of policy and economics, there isn’t any positive social value associated with domain name hijacking. Indeed, once transaction and switching costs are considered, the conduct actually entails social losses. One would therefore hope (or perhaps a la Posner even dare to predict) that the common law would forbid and deter such conduct. Applying the tort of intentional interference with prospective economic advantage would do just that. And so even if the copyright case against domain name hijacking isn’t airtight, the common law should come to the rescue.