On October 22nd, lawyers from Kentucky’s Justice and Public Safety Cabinet assembled in the state’s Supreme Court in Frankfort to take on proponents of 141 internet gambling domain names, including those belonging some of the poker industry’s staples like Full Tilt Poker, Ultimate Bet, and PokerStars. Bringing the legal action against the owners of the domain names was Cabinet Secretary J. Michael Brown, who sat down with PocketFives.com to give his take on the 90-minute proceeding.Brown saw lawyers representing the Interactive Media Entertainment and Gaming Association (iMEGA), Interactive Gaming Council (IGC), and several of the sites in question take to the courtroom last month. The Kentucky Cabinet Secretary gave his take on the affair: “I can’t say that there was anything that took me by surprise. The court struck on some of the key themes in the case. One is that what was being asked for in the Appeals Court was really a form of extraordinary relief in that all of the proceedings in the lower court had not been concluded.”
In September, news of the seizure broke across the internet gambling newswires and organizations like iMEGA, the IGC, and the Poker Players Alliance (PPA) mobilized their legal teams. However, Judge Thomas Wingate quickly upheld the actions of the Commonwealth, led by Brown and Governor Steve Beshear (pictured at left). Soon afterwards, the internet gambling industry sought the involvement of the Court of Appeals under the grounds that the damage caused by the websites’ forfeiture would be irreversible. The Court of Appeals agreed and issued a positive decision in January for iMEGA and the IGC, ruling by a two-to-one margin that the State did not have jurisdiction to act. Commonwealth attorneys immediately appealed to the Kentucky Supreme Court.The issue of whether the Commonwealth had jurisdiction to act is a convoluted one. The domains were seized as “gambling devices,” a phrase that historically refers to dice, slot machines, and other tangible objects. Brown told PocketFives.com, “We’re talking about an in rem action, which is taken against a thing and not a person. The question becomes what is due process for the thing in question. It goes back to its owner coming forth and asserting his or her property rights. That’s what we didn’t have in this case.” Instead of the actual owners of domain names appearing in the Kentucky Supreme Court, trade organizations served the role.
Many in the industry have candidly suggested that the Kentucky State Legislature take up the issue of internet gambling to set the record straight on whether the online version is legal within the Commonwealth. A September ruling by the Third Circuit Court of Appeals on a national level indicated that the legality of internet gambling is ultimately up to each state and reinforced the industry’s stance. Brown explained, “My belief is that the forfeiture hearing would have brought out a number of facts. You never know what might encourage the legislature to act.”The PPA has submitted an amicus brief in the case arguing that poker is a game of skill and therefore not illegal gambling under Kentucky state law. Brown revealed, “This is where the argument on the other side appears circular. It might be something that gets flushed out in a factual hearing, but the other side wants to prohibit the hearing.” Other parties that have weighed in include the American Civil Liberties Union (ACLU), the Center for Democracy and Technology, the Electronic Frontier Foundation, the Internet Commerce Association, eBay, and Network Solutions.
In response to the pending legal action, several sites purchased alternate domain names, including Full Tilt Poker, which acquired FullTilt.com. In addition, Ultimate Bet recently procured UB.com. If the Commonwealth were to be successful, the 141 domain names would be inaccessible not just in Kentucky, but also all over the world. New legal action would have to be brought against each additional domain name outside of the 141.
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